Religious Freedom in Secular States: A 21st Century Perspective 9004449957, 9789004449954

Table of contents :
Contents
Acknowledgments
Abbreviations
Notes on Editors
Notes on Contributors
Part 1 Contemporary Religious Freedom Issues in Secular Nations
1 Religious Freedom in a Secular State: An Introduction
1 Framing the Issues
2 Context and Background
3 Issue-based Analysis of Religious Freedom
4 Situating Freedom of Religion in Secular States
5 Concluding Remark
Books
Journal Articles
International Instruments
Website Content
2 Civic Religion and the Rationality of Persecution
1 Introduction
2 Persecution in the Early Modern Period
3 Persecution in the Contemporary West
4 Conclusion
Books
Book Chapters
Journal Articles
Newspapers
Thesis
Speech
Cases
Acts
3 In the Time of the COVID-19: Law, Religious Freedom and the Secular State
1 The Context
2 Religious Perspectives on Pandemics
3 Secular Responses
3.1 International Covenants
3.2 Getting the Balance Right: Executive Limitations on Religious Freedom
4 Religious Responses to Restrictions on Their Freedom
4.1 Adaptation
4.2 Endorsement
4.3 Defiance
4.4 Litigation
5 Stigmatising Minority Religions
5.1 The Shincheonji Church of Jesus Christ (SCJ) in South Korea
5.2 Tablighi Jammat, India
6 Conclusion
Books
Scripture
Journal Articles
News or Magazine Articles
Website Content
Legislation
Constitution
Cases
International Instruments
4 Bans on the Wearing of Burqas, Niqabs and Hijabs, Religious Freedom
1 Introduction
2 Preserving the Secular Nature of the State
3 Fear of Proselytism
4 Fear of Retreating from ‘Living Together’
5 Counter Arguments
5.1 Preservation of the Secular Nature of the State
5.2 Fear of Proselytism
5.3 Fear of Retreating from Society
6 Conclusion
Books
Articles
Cases
National Instruments
International Instruments
Other
5 The ‘Non-Religious’ in Religion and Worldviews Education and in the Light of Human Rights Law
1 Between Two Laws: From Christendom Assumptions to Socio-Religious Realities
2 Socio-Religious and Legal Inheritance and Change
3 Historic Christendom Moorings and Inclusion of the ‘Non-Religious’ in RE
4 Definitional and Developmental Parallelism in Law and RE?
5 Different but Cognate Challenges?
6 A Possible Dialogical Opportunity
Books
Chapters
Journal Articles
Reports & Reviews
Websites
International
Other
6 Religious Footprints in Secular Sand-the Imprint of Religious Culture in Civil Law
1 Introduction
2 Donoghue v Stevenson
3 Hyde v Hyde
4 Common Threads
Acknowledgement
Books
Book Chapters
Journal Articles
Cases
Statues and Convention
Website
Part 2 National Approaches to Religious Freedom
7 The Constitutional Principle of Secularism in the Member States of the Council of Europe
1 Laïcité
1.1 The Legal Principle of Laïcité and the Conflict with the Catholic Church
1.2 Separatism and Laïcité
1.3 The Constitutional Principle of Laïcité and Islam
2 Laiklik
2.1 From the Ottoman Empire to the Republic of Turkey
2.2 Laiklik and Kemalism’s ‘Six Arrows’
2.3 The Alleged Link between Laiklik and Democracy
2.4 Laiklik in AKP’s Turkey
3 Laicità
3.1 The Confessionist Heritage
3.2 Laicità and the 1989 Constitutional Court’s Judgement
3.3 Laicità and Pluralisation
4 Conclusion
Books
Book Chapters
Journal Articles
Other
8 The Religion Clauses in the U.S. Constitution
1 The Establishment Clause
2 The Free Exercise Clause
3 Tension between the Establishment Clause and the Free Exercise Clause
4 Conclusion
Acknowledgment
Books
Cases
Constitution
9 Constitutional Culture, Religion, and England-beyond Establishment
1 Introduction
2 Constitutional Culture
3 Establishment and Constitutional Culture
4 Beyond Establishment: A Common Law Right to Religious Freedom
5 Conclusion
Acknowledgment
Book Chapters
Journal Articles
Books
Blogs
Newspapers
Cases
Statutes
Websites
10 Religious Freedom in South Africa
1 Introduction
2 Brief Background
3 Religious Autonomy
4 Limitation of Rights
5 Some Examples
5.1 Burial and Property Rights
5.2 Religious Slaughter
5.3 Religious Noise
6 Tolerance and Respect for Religion
7 Conclusion
Books
Book Chapters
Articles
News Articles
Cases
Legislation and Instruments
11 Religious Freedom in Australia
1 Introduction
2 Australian Context
2.1 History and the Changing Role of Religion in Australia
2.2 Concept of Religion in Australian Law
3 Domestic Legal Framework
3.1 The Constitution
3.2 Statutory Human Rights Charters
3.3 Discrimination Laws
4 Current Issue: Religious Freedom and LGBTI+ Equality
4.1 Religious Freedom and Marriage Equality
4.2 Religious Freedom Review
4.3 What Is Next?
5 Conclusion
Books
Journal Articles
Newspapers
Reports
Cases
Acts
Websites
12 Religious Freedom in India and the Impact of Hindutva on Religious Minorities
1 Introduction
2 Constitutional Provisions on Freedom of Religion, Equality of Citizenship, and State Intervention in Religious Affairs in India
2.1 Freedom of Religion
2.2 Equality of Citizenship
2.3 State Intervention in Religious Affairs
3 Impact of Hindutva on Religious Minorities in the COVID-19 Era
3.1 Religious Discrimination against Muslims during the COVID-19 Pandemic in India
3.1.1 Judicial Intervention against Criminal Proceedings
3.2 Role of the Media during the COVID-19 Pandemic in India
3.2.1 Media Reports Led Communal Violence
3.2.2 Judicial Intervention against Misinformation on Media
3.3 Hindutva Ideology and Religious Discrimination against Muslims during the COVID-19 Pandemic
3.3.1 Meaning of Hindutva
3.3.2 Hindutva Scrutinises the Indian Constitution’s Shortcomings
3.3.3 Appeals to Hindutva in Election Campaign and the Role of Judiciary in Interpreting Hindutva
3.3.4 Hindutva Promotes Religious Fundamentalism, Forced Assimilation and Hindu Rashtra without Guaranteeing Human Rights
4 Conclusion
Books
Book Chapters
Journal Articles
Case-laws
Legal Instruments
Website Content
News Article and Media
Index

Citation preview

Religious Freedom in Secular States

Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

Studies in Religion, Secular Beliefs and Human Rights volume 15

The titles published in this series are listed at brill.com/srsb

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Religious Freedom in Secular States A 21st Century Perspective Edited by

Md Jahid Hossain Bhuiyan and Ann Black

leiden | boston

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The Library of Congress Cataloging-in-Publication Data is available online at https://catalog.loc.gov LC record available at https://lccn.loc.gov/2022031971

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1871-7829 isbn 978-90-04-44995-4 (hardback) isbn 978-90-04-44996-1 (e-book) Copyright 2022 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau and V&R unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

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Contents

Acknowledgments vii List of Abbreviations viii Notes on Editors ix Notes on Contributors x

Part 1 Contemporary Religious Freedom Issues in Secular Nations 1

Religious Freedom in a Secular State: An Introduction 3 Ann Black and Md Jahid Hossain Bhuiyan

2

Civic Religion and the Rationality of Persecution 21 Darryn Jensen

3

In the Time of the COVID-19: Law, Religious Freedom and the Secular State 42 Ann Black

4

Bans on the Wearing of Burqas, Niqabs and Hijabs, Religious Freedom and the Secular Nature of the State 73 Erica Howard

5

The ‘Non-Religious’ in Religion and Worldviews Education and in the Light of Human Rights Law 95 Paul Weller

6

Religious Footprints in Secular Sand-the Imprint of Religious Culture in Civil Law 125 Javier García Oliva and Helen Hall

Part 2 National Approaches to Religious Freedom 7

The Constitutional Principle of Secularism in the Member States of the Council of Europe 147 Rossella Bottoni Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

vi

Contents

8

The Religion Clauses in the U.S. Constitution 173 Russell L. Weaver

9

Constitutional Culture, Religion, and England-beyond Establishment 192 Javier García Oliva

10

Religious Freedom in South Africa 217 Helena van Coller

11

Religious Freedom in Australia 234 Peter Black

12

Religious Freedom in India and the Impact of Hindutva on Religious Minorities 267 Md Jahid Hossain Bhuiyan



Index 297

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Acknowledgments This book deals with the complex and evolving relationship between religious freedom and the principle of secularism as adopted in a range of states identifying as secular. The Covid-19 pandemic has been a shadow hanging over the creation and completion of the book. Our authors and everyone involved in this project had to contend with additional constraints, pressures, concerns, illness and, at times, loss. It makes us especially grateful to each chapter author for their perseverance and commitment to writing reflective and deep analyses on what has proven to be timely topic. The last two years have brought into focus individual and institutional relationships with God[s] and fuelled questioning and comparative evaluation of international, national, and local government approaches. We thank each author for devoting their time and efforts to contributing to the book. In reading and editing each chapter, we as editors, gained new insights and we know readers will as well. We are grateful too for the assistance and support of a number of people. The first of these is Joe Dwyer, our research assistant, whose work was exemplary in editing chapters and particularly with footnotes, bibliographies, and citations. We also thank all at Martinus Nijhoff (Brill) for their helpful and professional handling of the production of this book, in particular Lindy Melman, Bea Timmer and Theo Joppe. Lastly, we are grateful to our families: to Rizwana, Mehmed and Riyasaad (for Jahid) and to Robert, Pete, Suzi, and Kat (for Ann) for their support and love from the beginning to finish of this book. JB and AB

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Abbreviations AKP ASCs BJP CAB DOGS EHRC ECtHR HILDA ICCPR KCDC LA LGBTI RE REC RI RPA RSS RVE SACREs SACRRF SCJ UDHR VHP

Adalet ve Kalkinma Partisi Agreed Syllabus Conferences Bharatiya Janata Party Citizenship Amendment Bill Defence of Government Schools Equality and Human Rights Commission European Court of Human Rights Household, Income and Labour Dynamics in Australia International Covenant on Civil and Political Rights Korean Centre of Disease Control Local Authorities Lesbian, Gay, Bisexual, Transgender and Intersex Religious Education Religious Education Council Religious Instruction Representation of Peoples Act Rashtriya Swayamsevak Sangh or National Volunteer Core Religion, Values and Ethics Standing Advisory Councils for Religious Education South African Charter of Religious Rights and Freedoms Shincheonji Church of Jesus Christ Universal Declaration on Human Rights Vishva Hindu Parishad or Universal Hindu Council

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Notes on Editors Md Jahid Hossain Bhuiyan is currently a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL), Germany. He served as an Associate Professor at the Department of Law & Justice, Southeast University, Bangladesh before coming to the MPIL. He was a visiting scholar at the ­University of Oxford, UK; Cardiff University, UK; Emory University, USA; and University of British Columbia, Canada. He holds a PhD in law from the University of Queensland, Australia and an LLM from Vrije Universiteit Brussel, Belgium. He has co-edited Human Rights and International Criminal Law (Brill, 2022), Revisiting the Geneva Conventions: 1949–2019 (Brill, 2020), Law and Religion in the Liberal State (Hart Publishing, 2020), International Natural Resources Law, Investment and Sustainability (Routledge, 2017), International Trade Law and the WTO (Federation Press, 2013), An Introduction to International Refugee Law (Brill, 2013), Globalization, International Law, and Human Rights (Oxford University Press, 2012), Routledge Handbook of International Environmental Law (Routledge, 2012), An Introduction to International Human Rights Law (Brill, 2010), and International Humanitarian Law – An Anthology (LexisNexis Butterworths, 2009), amongst other scholarly books. Ann Black is an Associate Professor and Reader at the TC Beirne School of Law at the University of Queensland. Her research is in comparative law, law & religion, and legal pluralism, with particular interest in Islamic law and the law and legal cultures of Asia, with many scholarly publications featuring Brunei Darussalam. This links to her teaching in comparative law courses in Law School’s undergraduate program (Asian Legal Systems and Islamic law); in the School’s Master’s program; and as a PhD supervisor. She has been a Visiting Professor at six universities, most recently at the University of Vienna. She is a co-author with Hossein Esmaeili and Nadirsyah Hosen for Modern Perspectives on Islamic Law (Edward Elgar), and co-editor with Gary Bell of Law and Legal Institutions of Asia: Traditions, adaptations and innovations (CUP). Assoc Professor Black is the Executive Director for Comparative Law in the Centre for Public, International and Comparative Law and is a member of UQ’s Law and Religion Research Cluster.

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Notes on Contributors Md Jahid Hossain Bhuiyan Ph.D. in Law, The University of Queensland, Australia, is currently a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL), Germany. He served as an Associate Professor at the Department of Law & Justice, Southeast University, Bangladesh before ­coming to the MPIL. Jahid’s primary research areas are public international law, and law and religion. He is co- editor of Revisiting the Geneva Conventions: 1949–2019 (Brill, 2020), Law and Religion in the Liberal State (Hart P ­ ublishing, 2020), International Natural Resources Law, Investment and Sustainability (Routledge, 2017) and Routledge Handbook of International Environmental Law (Routledge, 2012). Ann Black is an Associate Professor and Reader at the TC Beirne School of law, The University of Queensland and is the Executive Director for Comparative Law, at its Centre of Public, international and Comparative Law. Her research analyses the intersection of law, religion and secularism, and the operation of Sharia in Southeast Asia, especially Brunei Darussalam, and in secular nations including Australia. She has over 100 publications in this field including the books Modern Perspective of Islamic Law (with Nadir Hosen & Hossein Esmaeili) published with Edward Elgar, and Law and Legal Institutions of Asia (edited with Gary Bell) published by Cambridge University Press. Peter Black is a Senior Lecturer in Law at the Queensland University of Technology, Australia, where he is the Chair the Faculty of Business and Law’s Equity Committee and was previously the Associate Dean (Learning & Teaching) for the then Faculty of Law. He teaches and researches in media law and Australian Constitutional law. Peter studied Arts, with a major in Media Studies, and an LLB (Hons 1A) at the University of Queensland, graduating as a University Medallist. After working as an Associate for Justice Davies of the Court of Appeal, Queensland, he lectured at the University of Carlos III, Madrid, before completing an LLM at Columbia University, New York. Rossella Bottoni wrote her PhD dissertation on The origins of secularism in Turkey (1839–1938). She is currently Associate Professor at the Faculty of Law, University of Trento, where she teaches Law and Religion, Comparative Ecclesiastical Law Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

Notes on Contributors 

xi

and ­Introduction to Islamic Law. Author of two monographs in Italian language (The Principle of Secularism in Turkey. A Legal and Historical Perspective, 2012, and Law and Religion in the European Space, 2019), and co-editor of Religious Rules, State Law, and Normative Pluralism (Springer, 2016), Routledge Handbook of Religious Laws (Routledge, 2019) and Routledge Handbook of Freedom of ­Religion or Belief (Routledge, 2021). Helena van Coller is an Associate Professor and Deputy Dean at the Faculty of Law, Rhodes University, South Africa. Her research interests lie in Public Law, with a particular interest in aspects of Law and Religion. She is a Board member of the African Consortium of Law and Religion Scholars (ACLARS) and a founding member of the SA Council for the Protection and Promotion of Religious Rights and Freedoms Her book on Regulating Religion: State Governance of Religious Institutions in South Africa was published in 2020 as part of the Routledge ICLARS Series on Law and Religion. Helen Hall is an Associate Professor at the University of Nottingham Trent and is the Associate Director of the Centre for Rights and Justice. She is a qualified solicitor and Anglican priest. Her research is in the fields of Law and Religion, Tort, Family and Public Law, with a particular interest in law and exorcism/deliverance ministry and the rights and freedoms of children in relation to religion. She recently co-authored with Javier García Oliva Religion, Law and the Constitution: Balancing Beliefs in Britain (Routledge: 2018). Erica Howard is Professor of Law at Middlesex University, London. She has conducted extensive research on freedom of religion, freedom of expression and religious and other forms of discrimination. The second edition of her book: ‘Law and the wearing of religious clothing in Europe’ was published in 2020. Erica has worked with the British Equality and Human Rights Commission on religion and belief issues. She has written reports for the European Parliament Research Service and for the European Commission (the latter on: ‘The wearing of religious clothing and symbols in employment’). Darryn Jensen is an Honorary Senior Lecturer at the Australian National University and a Fellow of the Australian Centre for Private Law, The University of Queensland. He holds the degree of Doctor of Philosophy from the University of Queensland

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Notes on Contributors

and has previously held academic positions at the University of Queensland, the University of the South Pacific and the Australian National University. Javier García Oliva studied Law at the University of Cádiz, where he obtained his first degree, LLM and PhD (cum laude and European distinction). He lectured at the Universities of Cádiz, Cardiff and Bangor before moving in 2011 to the University of Manchester, where he became a Senior Lecturer, and then a Professor of Law in 2021. Javier is also a Lecturer in Spanish Law at the University of Oxford and a Teaching Fellow at University College London. He is the Membership Secretary of the UK Constitutional Law Association and co-author of Religion, Law and the Constitution: Balancing Beliefs in Britain (Routledge: 2018). Russell L. Weaver graduated cum laude from the University of Missouri School of Law in 1978. Professor Weaver began teaching at the Louis D. Brandeis School of Law in 1982, and holds the rank of Professor of Law and Distinguished University scholar. He inter alia teaches the First Amendment, and Constitutional Law. Professor Weaver has been asked to speak at law schools and conferences around the world. He is a prolific author who has written hundreds of books and articles over the last 38 years. His publication includes Understanding the First Amendment (7th ed. Carolina Academic Press, 2020). Paul Weller holds an MA (Theology), University of Oxford; MPhil (Social and Pastoral Theology), University of Manchester; PhD (Religious Studies), University of Leeds; and DLitt (by published works), University of Derby. He is Emeritus Professor, University of Derby; Non-Stipendiary Research Fellow in Religion and Society, Regent’s Park College, University of Oxford, where he is Associate Member of the University’s Faculty of Theology and Religion; and Visiting Professor in the Research Institute for Peace, Security and Social Justice, Coventry University. Among many publications, he is author of Time for a Change: Reconfiguring Religion, State and Society, T & T Clark, 2005.

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PART 1 Contemporary Religious Freedom Issues in Secular Nations

∵

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CHAPTER 1

Religious Freedom in a Secular State: An Introduction Ann Black and Md Jahid Hossain Bhuiyan 1

Framing the Issues I had the story, but bit by bit, from various people, and, as generally ­happens in such cases, each time it was a different story. Edith Wharton, Etham Frome 1 (1911)

Wharton’s opening line sets the scene for events in a fictional Massachusetts village, yet it reflects the many manifestations of secular states. The core values and tenets of secularism may be accepted as the secularism ‘story,’ as how each secular state ideologically and practically proceeds makes for a distinctive story. This book explores these stories: the commonalities and differences ideologically and the myriad of ways in which secularism is translated into practice today across the world. Secularism at first appears to have contemporary conceptual dominance2 but also paradoxically has not supplanted religion’s role in either the private or public realm. Twentieth century secularisation theory which predicts religion’s demise is refuted by accounts of a global resurgence of religiosity.3 Secularism’s close relationship with religious pluralism is a feature of contemporary times. This book aids understanding of the variation within, and permutations of, the secularism story. This is achieved in two ways. First, as secularism is informed by the religions with which it cohabits, as well 1 Edith Wharton, Etham Frome (New York: Scribner, 1911) Project Gutenberg EBook #4517, https://www.gutenberg.org/files/4517/4517-h/4517-h.htm e. 2 Ninety-six nations have secular constitutions. “Secular Countries 2021” World Population Review, accessed January 3, 2022, https://worldpopulationreview.com/country-rankings /secular-countries. 3 Fox, for example, writes on failings of the secularisation theory, which predicted either the decline or demise of religion in modern times based on scientific rationalism and state assumption of religion’s social role especially in education and health. See, Jonathon Fox, Political Secularism, Religion and the State (Cambridge: Cambridge University Press, 2015), 16. Also, Titus Hjelm, ed, Is God Back: Reconsidering the New Visibility of Religion (London: Bloomsbury, 2015). © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_002 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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as by cultural, historic, and ideological parameters, this book is not limited to a European or Western context. It includes national perspectives from scholars in South Asia and South Africa, as well as Europe, the United Kingdom, the United States of America (USA), and Australia. The secularism story also has points of departure and different pressure points, so the book considers current tensions arising in religiously plural liberal secular states where a myriad of rights and freedoms compete: education, healthcare, end-of life choices, clothing, dietary and financial obligations, sexual orientation, reproduction, minority interests, and the impact on religious freedom in state management of COVID-19. Due to the ambiguity of the legal category of secularism, its usefulness is questioned, and parameters debated.4 Whilst valid, in day-to-day usage ­secularism as an ideological concept and term remains in use as shorthand descriptor for an approach a nation adopts to religion at a personal, institutional, and national level. This book does not prescribe a definition or set ­conceptual parameters for ‘secularism,’ nor does it for ‘religion’ which can cover doctrinal as well as spiritually-based practices. Several contributors highlight the complexity in the legal concept of ‘religion’, when they explore the judicial debates and decisions from constitutional and supreme courts on what is and is not a religion.5 Instead, the contributors were able to employ, explore and set boundaries for both concepts in their chapters. It would seem, in general terms, there are three normative commitments to the secular model. First, a need for some ‘separation of church/mosque/temple and state,’ so that in a secular state, religious institutions should, where possible, be separate and independent from the institutions of the government. The degree to which they are separate and how such separation is achieved makes for an interesting comparison. Second, there is the normative commitment that a secular state should allow all citizens ‘freedom of religion or belief’, that is, to freely think, feel, practice, and share with others their religious beliefs and rites without state interference, and on an equal footing with non-­believers. Equality of this kind proves elusive and variable in practice.6 In belonging to a secular state, individuals should be free to change, question, criticise, lapse, replace, laud, defend and proselytise, all without state-led repercussions. Third, the neutral and non-discrimination principle should apply whereby the secular state strives to treat each religion or non-religious viewpoint equally 4 See for example, Bottoni, Chapter 7 and Weller Chapter 5. 5 See for example, Weaver Chapter 8 and Black Chapter 11. 6 See, for example, Black Chapter 3.4: Stigmatising Minority Religions.

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Introduction

5

and not favour either the religion of the majority or a minority, nor favour an historical religious identity over emergent or imported one. Again, as we see in this book, neutrality7 remains open to interpretation as does the means to achieve it. Also, over time, the question of ‘what is religious’ can conflate with cultural context (national holidays/holy days, for example) and national identity (Christian crosses or Islamic crescents on national flags of constitutionally secular nations). Religion is not a societal silo, but saturates a nation’s values, traditions, identity, and governance. Given the divergence in the many guises of secularism, it may be simpler to see a secular state by what it is not; namely, not a religious or theocratic state. A religious state will support and endorse one religion over and above others, will regulate how the prioritised religion is to be practised and define the accepted ‘correct’ religious tenets, will protect that religion from criticism, heresy, blasphemy, proselytisation, and apostasy, and will invariably endorse discriminatory practices by, and for, its adherents vis a vis other religious and non-religious beliefs, including atheism. The chosen religion will dictate national identity, culture, and mode of governance. Once religious states of this type were commonplace but today there are few, most of which are Islamic nations.8 How the pendulum has swung is part of secularism’s evolution and legacy. 2

Context and Background

There are exceptions, notably Confucianism which was, and is, the defining secular philosophy across East Asia,9 but religion, for millennia, was the force guiding most of humanity. Even the origin of the word ‘secular’ is religious. Derived from the Latin saecularis, it was used initially for the religious clergy in medieval England and Europe who were not bound by the rules of a monastic order.10 ‘Secular’ emphasised the realm of ‘this world’ as opposed to the divine,

7 8 9 10

See, for example, Bottini Chapter 7 where this is discussed in the European context. For example, the Kingdom of Saudi Arabia, The Sultanate of Brunei Darussalam, and the Islamic Republic of Iran. Glenn writes, “the greatest traditional source of normativity in Asia is confuciansim, which is not a religion.” See H. Patrick Glenn. Legal Traditions of the World, 2nd ed., (Oxford: Oxford University Press, 2004), 301. Nikki Keddie, “Secularism and its discontents,” Daedalus: Journal of the American ­Academy of Arts & Science 123, no. 3 (2003): 14, 15.

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or sacred, ‘other-world.’11 In A Dictionary of the English Language (1755), Samuel Johnson wrote: Secular, adj. [secularis, Latin; seculier, French] 1. Not spiritual; relating to the affairs of the present world; not holy; worldly. 2. [In the church of Rome.] not bound by monastic rules. 3. [Seculaire, Fr.] Happening or coming once in a secle or century.12 By the mid nineteenth century, along with capitalism, secularism emerged in the West13 as a major ideology. Up until the Enlightenment in the eighteenth century,14 religion had been the world’s key political ideology, legitimising (divine) rule by kings and sultans. A right to rule came from God, not the people.15 Fox writes that, ‘Hobbes, Locke, Marx, and Rousseau, among others, reversed this relationship, putting the people on top and removing God from the equation.’16 The Reformation17 from the sixteenth century in Europe onwards, and the growth of Protestantism had challenged Christianity’s uniformity and, by extension, religion’s infallibility which, over time, led to a proliferation of new religious sects and loyalties within the Christian West.18 Different truths began to compete intellectually and spiritually especially within, and between, the three Abrahamic faiths. Movements away from established orthodoxy showed the ‘variety of ways to the sacred and to the ways of being religious.’19 The certainty and acceptance of one almighty divine voice was undermined 11 Ibid. 12 Cited in Phil Zuckerman and John R Shook, The Oxford Handbook of Secularism (New York: Oxford University Press, 2017), 5. 13 Aroney and Ahdar discuss the meaning of the term ‘the West’ noting the separation of church and state has been fundamental to the constitutional structure of the democratic nations within the ambit of the West, see Nicholas Aroney and Rex Ahdar, “The Shari’a in Western Landscapes,” in The Shari’a: History, Ethics and Law, ed. Amyn Sajoo (London: IB Taurus Publishers, 2018), 198–203. 14 The Enlightenment is the name for the political movement in Europe which advocated for reason, not religion, as the source of authority for governance. It promoted separation of church and state, democracy, liberty, tolerance and constitutionalism. 15 Fox, Political Secularism, 19. 16 Ibid. 17 This movement challenged the exclusive political and religious authority of the Pope and the Roman Catholic church. It split the Christian world in Europe into two main religious divisions (Roman Catholicism and many forms of Protestantism) which continue today. 18 See Jensen’s analysis in Chapter 2 on theoretical differences between Protestantism and Catholicism. 19 Anne Roald, “Expressing Religiosity in a Secular Society: the Relativisation of Faith in Muslim Communities in Sweden,” European Review 20, no. 1 (2012): 95, 97.

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by witnessing religion’s intra- and inter-plurality. Roald sees ruler or state mandated devotion to God as only possible when a religion possesses exclusivity and certainty. She cites Bruce, who states: ‘[w]hen the oracle speaks with a single clear voice it is easy to believe it is the voice of God. When it speaks with twenty different voices, it is tempting to look behind the screen.’20 Throughout history there were periods of religious toleration, exemplified by Moghul Emperor Akbar (r. 1556–1605)21 in India, but more common were bitter and violent struggles between competing religious camps. The result was centuries of sectarian persecution and internecine wars. From the time of the Christian Reformation, with the exclusivity of religious knowledge no longer resting in the hands of priests and literate clerical elites, individuals could access holy texts and make interpretative choices. Monk and German theologist Martin Luther (1483–1546) was instrumental in making scripture accessible by translating and printing the Bible in German. He went on to challenge once unrivalled Roman Catholic church practices, initially the selling of indulgences, then key doctrinal tenets including the Pope’s authority, the nature of salvation, and clerical celibacy. He wrote of two worlds, the spiritual and temporal. Although condemned as a heretic and ex-communicated,22 Luther’s reasoning and defiance inspired others. The power, influence, and wealth of the religious institutions were also challenged by temporal rulers. Political assaults on the Roman Catholic church’s control over wealth and land was seen in the confiscation of church property and closure of monasteries by King Henry VIII of England (r. 1509–1547); who, erstwhile, establishing his own breakaway Church of England.23 Fracturing continued. The revolutionary authorities of the French Revolution (1789–1799) eviscerated the power of the Roman Catholic Church (the then only official religion allowed in the kingdom), killed its Catholic King, nationalised and sold church properties, and ended its taxing power. During the reign of terror thousands of priests were exiled and killed. The Catholic Church’s monopoly over faith ended and the doors opened to other beliefs and to non-belief. Article Ten of the revolutionaries’ Declaration of the Rights of Man and of the Citizen 1789 states: ‘No one may be disturbed on 20 Ibid. 21 During his reign, the Muslim Abkar was actively interested in other religions, persuading Hindus, Parsis, Christians and Muslims to peacefully engage in religious discussion and insisted on respect for difference. He also reduced the discriminatory taxes and practices against his non-Muslim subjects. 22 Joshua H. Mark, “1521 Excommunication of Martin Luther,” World History, accessed 11 ­January  2021. https://www.worldhistory.org/article/1903/1521-excommunication-of -­luther-complete-text/. 23 On this, see Oliva Chapter 9.

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account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.’24 Inspired by the earlier 1776 American Declaration of Independence,25 where distrust of the English King and his Anglican church ensured de-establishment of religion in the American Constitution, these seminal pronouncements paved the way for a new secularised concepts of state to emerge in Europe. France remained at the forefront and by 1905 formally enacted state secularism, laïcité,26 with the Separation of the Churches and State law. In Italy King Victor Emmanuel II (r. 1861–1878) rejected the Church’s control over the papal states and separated Italy from the Vatican. Accompanying these political shifts was rising nationalism which gave a basis for a citizenship through a shared loyalty to the nation state, independent from religion. This was at the heart of the American War of Independence from Britain. Scholars and thinkers such as Voltaire in France, John Stuart Mill, James Tyrell and John Locke in England advocated for religious tolerance and an ordered society in which Church and State were separate, and the latter neutral.27 The time was ripe in the Christian world for the rights of the individual to ascend over what had been the rights of God, and institutions expressing the will of the people to ascend over formal religious institutions established in his (gendered) name. Against this background, in the mid-nineteenth century, the political ­ideology named ‘secularism’ gained traction in the West and would come to inform intellectuals in other faith traditions. Englishman George Holyoake (1817–1906) is credited with coining the terms ‘secularist’ and ‘secularism’ to describe himself and his ideological worldview: one in which individuals were free to eschew religious tenets and have religious institutions decoupled from the state. He founded the British Secular Union.28 As a young man his views expressed in the periodical The Oracle of Reason had led to his imprisonment for blasphemy. Holyoake adopted ‘secularist’ in preference to other contemporary terms such as atheist, infidel, sceptic, free-thinker or unbeliever.29 In 1851, his The Principles Of Secularism defined secularism as a 24 See, https://www.elysee.fr/en/french-presidency/the-declaration-of-the-rights-of-­man -and-of-the-citizen 25 Derek H Davis, “Religious Dimensions of the Declaration of Independence: Fact or ­Fiction,” Journal of Church and State 36, no. 3 (1994): 469–482. 26 For laïcité see generally Bottini Chapter 7. 27 For example, J. R. Milton and Philip Milton, eds., John Locke: An Essay Concerning Toleration: And Other Writings on Law and Politics, 1667–1683 (Clarendon: Oxford ­ ­University Press, 2006). 28 Zuckerman and Snook, The Oxford Handbook of Secularism, 5. 29 On the origins of secularist movement, see generally, Edward Royle, Victorian Infidels: The Origins of the British Secularist Movement 1791–1866 (Manchester: Manchester University Press, 1974). Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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‘replacement for theology,’ which mainly regards life as a sinful necessity, as a scene of tribulation through which we pass to a better world. Secularism rejoices in this life,’30 and a ‘secularist’ as one who seeks ‘that good which is dictated by Nature, which is attainable by material means, and which is of immediate service to h ­ umanity—a religiousness to which the idea of God is not essential, nor the denial of the idea necessary.’31 To Holyoake and the pioneers of the socio-political movement for secularism32 a secularist does not need to oppose religion nor deny God.33 However, socialism, in particular Lenin-Marxism and later Maoism did. To Marx (1818–1883), religion, like capitalism, was oppressive and created a false consciousness. Marx wrote: ‘Religion is the opium of the people. It is the sigh of the oppressed creature, the heart of a heartless world, and the soul of our soulless conditions.’34 The socialist revolution sought reduction, and at times eradication of religion as a societal force. To establish a dictatorship of the proletariat led by the Communist Party, socialist secularism endorsed atheism for its cadres. Vast areas of former Christian Northern Europe, Muslim Central Asia and Confucianist east Asia adopted this illiberal form of secularism. As illiberal secularism advocates, and at times requires, its party members, and by extension citizens seeking state positions, to be atheist it is more closely aligned with the mandatory beliefs in a religious theocratic state. For this reason, socialist secularism is not included in this book. By contrast a liberal secular state has no such requirement – religious, non-religious and anti-religious citizens can live side by side within the state. Other factors in the nineteenth century aided the ideological ascendancy of secularism. The industrial revolution changed societies. It brought migration from the countryside to the cities. Increasing urbanisation lessened the once strong collectivist ties between rural communities and traditional ­religious practice. Cities exposed them to new ways of living, working, and thinking. Capitalism re-ordered societal values and aspirations. It increased levels of wealth and prosperity, which Fox argues by increasing ‘satisfaction and ­security in this world leads to less of a reliance on an afterlife.’35 Science and ­application 30

George Holyoake, The Principles of Secularism, 3rd ed. (London: Austin and Co, 1871) Project Gutenberg, https://www.gutenberg.org/files/36797/36797-h/36797-h.htm#link2HCH0003. 31 Ibid, chaps, III–VI. 32 Including Charles Bradlaugh (1833–1891), Charles Southwell (1814–1860), Thomas ­Cooper (1759–1839), Charles Watt (1836–1906), and Annie Besant (1847–1933) who promoted ­secularism as their core social philosophical and political goal. 33 Ibid. 34 Cited and discussed in John Raines, ed. Marx on Religion (Philadelphia: Temple University Press, 2002), 5. 35 Fox, Political Secularism, 20. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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of the scientific method postulated alternative explanations for the world, the universe and life itself. Charles Darwin’s (1809–1882) On the Origin of the Species published in 1859 contradicted divine creation, raising questions about the literal truths in holy texts. When a minority of doctrinal creationists rejected of Darwinian theories, it gave rise to doubts whether established religions could adapt for an increasingly scientific age. Science through physics and astronomy provided a new narrative posing rationale theories on the creation of the world and the universe: a heliocentric solar system, the Big Bang theory, presence of black holes, and splitting of the atom. Even discoveries of fossils from prehistoric times indicated life pre-dated the scriptural texts on divine creation. Medical advances allowed for test-tube commencement of life; no longer a miracle, but a clinical laboratory with invitro fertilisation, cloning and genetic manipulation. All of which eroded the sacredness of life that religions had ascribed to intervention by a divine being. In science secularism found an ally. During the twentieth century other movements partnered with secularism: the equality movements of feminism, LGBTI+36 recognition, and international law. Feminism found religions patriarchal and patronising, deeming religious institutions societal bastions of male dominance. As the LGBTIQ movement gained momentum towards the later part of the twentieth century religions were similarly castigated, especially the Abrahamic faiths as homophobic and deniers of a person’s inherent sexuality, orientation and worth. Same-sex marriage equality was a revolutionary new concept which decoupled marriage from traditional sacred origins.37 International law formalised aspects of secularism and several chapters38 in this book refer to international human rights instruments including the 1948 Universal Declaration on Human Rights;39 1966 International Covenant on Civil and Political Rights;40 and 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on

36 37 38 39 40

LGBTI+ includes Lesbian, Gay, Bisexual, Trans, Intersex, people with the + indicating it is inclusive of Queer, Sistergirl and Brotherboy and other sexuality, sex and gender diverse people. See, Black, Chapter 11. From 2000 when the Netherlands was the first Parliament to legalise same-sex marriage 30 other nations, as of 2021, have followed: see Pew Research Centre, Accessed 2 January 2021. https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world. For example, Black Chapter 3, Bottini Chapter 7, Howard Chapter 4, Oliva and Hall ­Chapter 6, and Weller Chapter 5. United Nations (General Assembly), 10 December 1948, 217 A (III). United Nations (General Assembly), 16, December 1966, United Nations, Treaty Series, vol. 999, 171.

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Religion or Belief;41 and the 1950 European Convention on Human Rights;42 all of which were influential internationally and informed national human rights instruments.43 Initially, secularism emerged in a range of guises in Western Christian nations (some of which are today described as post-Christian).44 However, political leaders and intellectuals from other parts of world and other religious traditions followed suit in considering secularism as a possible solution for reducing intra- and inter-religious divisions, as a facilitator for modernisation; and as a nationalistic avenue to unite people of different creeds especially against colonial occupation whilst designing an independent statehood.45 When seeking independence from Britain, the Indian National Congress (founded in 1885) was ideologically secular in order to allow for multiple religious views Hindu, Islamic, Buddhist, Sikh, and Christian as well as for different castes to unite in a single nationalistic movement. Today, the 42nd amendment to the Indian Constitution (1976) defines India as a secular democratic Republic with principles of religious freedom and state neutrality to religion contained in Articles 15 and 16, 25–30 of the Constitution. Turkey’s war time nationalist leader Kemal Ataturk (1881–1938) was the nation’s first president. He adopted a secularist laiklik agenda46 as the only way to reform and modernise Turkey post-Caliphate. Secularism was one of his six guiding principles, known as the arrows of ­Kemalism47 and is remains in Article 2 of the Turkish Constitution.48 Reza Shah (r. 1925–1979) followed suit in Iran. Egyptian Shaykh Ali Abd ­al-Raziq 41 42 43 44

45 46 47 48

United Nations (General Assembly) 25 November 1981, A/RES/36/55. 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. See for example, van Collier Chapter 10 on South Africa. Evert Van De Poll, “In what ways is Europe post-Christian?” in Evert Van De Poll, Europe and the Gospel (London: Versita, 2013), 251–271; Stuart Murray, “Post-Christendom, Post-Constantinian, Post-Christian … Does the Label Matter?” International Journal for the Study of the Christian Church 9, no. 3, (2009): 195–208. Hosen argues that the notion of separation of religion from politics and the state was a product of Western colonialism. See, Nadirsyah Hosen, Shari’a and Constitutional Reform in Indonesia (Singapore: Institute of Southeast Asian Studies, 2007), 10. See, Bottini Chapter 7 for a detailed account of laiklik as conceptualised and developed by Ataturk. On Kemalism, and secularism in the Muslim world, see: Jakir Al Faruki and Md. Roknuzzaman Siddik, “Secularism and the Muslim World: An Overview,” Journal of Social Science 1, no. 1 (2017): 16. Article 2: The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble.

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(1888–1966), a classically trained shaykh who argued for the s­eparation of religion from the state inspired both men. Al-Raziq wrote al-Islam wa ‘Usul ­al-Hukm (Islam and the Principles of Governance) in 1925 and is referred to the father of secular Islam.49 Al-Raziq’s reading of the Quran and Sunnah led him to conclude that Islam does not advocate a specific form of government and like other religions, Islam can be limited to the private personal sphere rather than to the dictates of Islamic ulama-allied governments. Sudanese Muslim scholar An Na’im is a contemporary voice for Islamic secularism. He writes: ‘the fact that Sharia is binding on Muslims as a matter of religious obligation emphasizes the need for neutrality of the state regarding all religions. This is necessary from an Islamic point of view because coercive enforcement is bound to be used to enforce the views of Sharia held by those who control the state, thereby obliging individual Muslims to comply with those views, even when they disagree’.50 Whereas theocratic religious states argue there is an Islamic imperative to enforce Sharia or Islamic religious law by government fiat, through establishing an Islamic (religious) state, secularists like An-Na’im argue that ‘any Sharia principle that is claimed to be enforced by the state ceases to be Sharia by the very act of enforcing it, because it then becomes the political will of the state and not the religious law of Islam.’51 Although this book does not include majority Muslim nations, several chapters52 touch on Islam in their reflections of success and failings in accommodation of religious pluralism, toleration and neutrality. 3

Issue-based Analysis of Religious Freedom

Part I highlights how throughout history, religious practice and persecution by the state was a recurring theme. In the first chapter of the book, Jensen explores this nexus. He opens with the thought-provoking concept that ‘persecution is not an entirely irrational practice.’ As agreement on various issues pertinent to the ordering of its ‘public world’ is required in any political 49

50 51 52

N V Efremova, “‘Ali ‘Abd Al-Raziq as father of Islamic secularism,” Islam in the Modern World 14, no. 3 (2018): 93–114; and Ahmed Al- Dawoody, “The Islamisation of Secularism: The Case of Shaykh “Ali ‘Abd Al-Raziq,” Encounters 6 (2015), https://www.researchgate .net/publication/291971065. Abdullahi Ahmed An-Na’im, “Human Rights, Universality and Sovereignty: The Irrelevance and Relevance of Sharia,” Global Policy 4, no. 4 (2013): 401, 407. Ibid, 401. Black Chapter 3, Howard Chapter 4, Bottini Chapter 7, Van Coller Chapter 10, Black ­Chapter 11, Bhuiyan Chapter 12.

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community, individuals who dissent may be considered a threat to public order. While methods of persecution and the specific beliefs attracting this may have changed over time, the underlying logic of persecution has remained the same. This idea links the persecution of the early contemporary period in Western Europe, particularly the post-Reformation period, with the modern forms of persecution in Western secular countries. Here, contentious issues of elective termination of pregnancy, minority forms of sexual orientation, notably homosexuality and transgender identities, and voluntary-assisted dying regimes are analysed. Jensen draws on nineteenth century British scholar Lord Acton who followed the liberalism tradition to claim that the dispersal of authority among different communities indicates the state has no monopoly on describing a good life for its citizens. States requiring extensive agreement regarding the beliefs and practices that form a ‘good life’ have a higher scope for persecution rather than any principled adherence to religious freedom. In 2020, the responses of states to COVID-19 unexpectedly challenged ­religious freedom. Black identifies three distinct effects of the COVID-19 pandemic on law and religion in secular states. First, the empirical rationality of science, not religion, framed the understanding of pandemics. However, secular governments respond differently to scientific knowledge. These differences demonstrate that lockdowns, restrictions, and vaccination programmes are ostensibly scientifically based, political agendas also matter. Governmental attitudes to religion determine whether religious-based activities are as essential as commercial gatherings, protests, sports events, and educational activities. Second, though secular states guarantee legal protection of religious freedom as a foundational liberty, the intensity of this disease and its rapid cross-border transmission meant serious measures were required. With some exceptions, discussed in the chapter, religious leaders largely supported government orders and adapted religious practices for the good of their congregations and the wider society. Third, when it was untenable for some to compromise on communal worship rituals and religious communal activities, they defied government orders, with prosecutions and litigation ensuing. Courts, notably in America, became the arbiters. The author argues that though contesting government policies to combat COVID-19 are part of the politico-legal arena, most religious communities accepted the impact of the pandemic on religious liberties, potentially bringing lasting changes to established religious practices. In his chapter Weller examines the ‘non-religious’ in Religious Education (RE) as taught in schools in England and Wales. It begins with analysis of two seminal Acts and the substantive and sematic debates which saw Wales change RE to ‘Religion, Values and Ethics’ (RVE). The chapter goes beyond the United

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Kingdom to analyse international and European mechanisms for implementing ‘universal’ human rights including judgments of the European Court of Human Rights (ECtHR) and the extent to which UK individuals could use ECtHR remedies once domestic law had been exhausted. The author examines the Equality Act, 2010 which protects the ‘non-religious’ and traces the concept of ‘worldviews’ in three reports (2003, 2004, 2010) which informed RE curricula, and the UK’s Equality and Human Rights Commission (EHRC)’s report which reviews issues arising from implementing ‘religion or belief’ protected attributes in the Equality Act. The report asserted that religion refers to ‘any religion’ and covers a lack of ‘religion or belief’. Several conceptual and implementation challenges remain following the shift from RE to RVE in Wales, which Weller argues requires serious conversation between RE and law scholars regarding their understandings of cognate issues and concerns regarding the ‘non-religious.’ This might help them move beyond disciplinary parallelism and elucidate ongoing conceptual and practical challenges. Weller advocates for more work on ‘non-religious’ diversity, which recently emerged in the different terminologies of ‘religions’ or ‘non-religious’, ‘religions or belief’, and ‘worldviews’. No issue is perhaps more divisive in secular states than their response to overt religious identification, e.g., Muslim affiliation by wearing burqas, hijabs and niqabs. For some European countries, the response has been legal prohibition. Howard analyses the argument that these bans preserve the state’s secular nature. In the European Court of Human Rights (ECtHR) case of S.A.S. v France, the Grand Chamber’s and the dissenting judges’ decision asserted bans are needed to ensure societal harmony. The author argues that preserving the state’s secular nature is not a legitimate ground for bans. The chapter evaluates two facets of the fear of Islamophobia. The first is that wearing a hijab or niqab shows the person’s intent to proselytise and convert others. The second is that it facilitates Muslim women’s retreat from society, which Howard refutes on grounds of inconsistencies, for example, prohibiting facecovering whilst mandating wear face-masks during the COVID-19 pandemic, insufficient evidence that veil-wearing women cannot participate in society, or that bans lead to social segregation. Howard states that upholding bans based on ‘living together’ disregards the ECtHR’s responsibility to protect minorities. She argues that the ECtHR must stringently examine the reasons for bans and determine whether they maintain society’s secular nature. A further reflection is this Part which shows that there is no clear dichotomy between the religious and the secular is by Oliva and Hall. Despite western democracies’ commitment to equality and pluralism, ‘religious footprints’ remain in the ‘secular sand’ of civil law. The authors demonstrate this by

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evaluating two seminal cases in the United Kingdom - Donoghue v Stevenson and Hyde v Hyde. In determining legal liability, Lord Atkin in Donoghue v Stevenson set out the ‘Golden Rule’: ‘Love your neighbour as yourself’ which clearly references Christian Scripture. In Hyde v Hyde, Lord Penzance continually referred to ‘Christendom’, indicating that the terms husband and wife may refer to distinct relationships in different cultural and linguistic contexts. Oliva and Hall identify three common aspects in these cases. First, older case law will undeniably allude to the beliefs of ancestors because religion was a significant aspect of collective life until 1950. Second, older judgements are highly instructive of existing principles. Third, they become part of constitutional culture: the norms and values prevalent in collective life. The authors suggest a distinction should be made between using Christian imagery or language to show meaning or emphasis with care taken when articulating apparently Christian values to ensure widely applicable norms are equally acknowledged in contemporary society while narrower values must be abandoned. 4

Situating Freedom of Religion in Secular States

Part II highlights different stories of secularism as the focus shifts to situating religious freedom in discreet secular states. It starts in Europe with insights into France, Turkey and Italy, then the United States of America, South Africa, the United Kingdom, and Australia as a nation informed by both American and British conceptions of freedom of religion. This part concludes in Asia with an analysis of India’s secularism. Beginning in Europe, Bottini’s chapter examines the legal experiences of three European states that have extensively debated constitutional principle of secularism: Turkey, France, and Italy. It explores how the French concept laïcité, incorporated into the French Constitution in 1946 and again into the 1958 Constitution, encompasses state neutrality and independence from religion. Whilst conflict with the Catholic Church ended in the 1990s, a new tension arose with Islam, France’s largest religious minority. An enduring contention is the wearing of Islamic symbols, extending Howard’s analysis of hijab, burqa and niqab. The corollary in Turkey is the political and ideological concept of laiklik, with state neutrality at its core. However, political change and the rise of Adalet ve Kalkinma Partisi (AKP) - Justice and Development Party, lead to revision of Turkey’s religious policy. Muslim women’s clothing is a visible corollary of political reform, exemplified by removing the ban on headscarves established. Also symbolic was converting the Hagia Sophia museum into a mosque. The author argues that an anti-pluralist application of laiklik

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significantly impedes the democratisation of Turkey. Bottini then reflects on laicità in Italy, which has not been considered by the State as a civilisational element for national identity. Here, controversies have emerged regarding bioethical issues, where religion influences the concept of public morality, and in the conventional domain of state-religion associations. Along with France, the United States of America was one of the first nations to adopt secularism as a vehicle to advance religious freedom. The two ­religious guarantees in the First Amendment to the US Constitution: the Establishment Clause (which precludes the government from establishing an official religion) and the Free Exercise Clause (which guarantees individuals the right to free exercise their religions) have had a problematic i­nterpretative history. These clauses have evident origins: most initial settlers came to the US to save themselves from religious persecution in Europe. Consequently, many sought to include religious liberty in the US Constitution, until the Bill of Rights enforced a prohibition against governmental establishment of religion and protecting free exercising religion. Ensuring centuries witnessed these clauses extensively litigated. US courts assert that neither the federal government nor states can ‘establish’ an ‘official religion.’ Consequently, courts must determine whether lesser governmental actions equal to such ‘establishment of religion.’ The Supreme Court has also faced difficulties formulating the Free Exercise Clause. It has offered higher protection to religious organisations by enacting rules forbid governments from discrimination against religion. The author suggests the most salient issues emerge in the conflict between religion clauses. It is sometimes difficult to know if a governmental action calls for the establishment of religion or accommodates religion as part of the free exercise clause and under what circumstances does the Free Exercise Clause exempt individuals from neutral, generally applicable, laws. Weaver explores the tension between the Establishment Clause and the Free Exercise Clause, and specifically examines situations when Free Exercise can be used to claim such exemptions. There is complexity in the protection of religious freedom in multi-religious South Africa where members of different religious communities hold diverse religious views and practices. Inevitably, conflicts arise within, and outside, these communities. Van Coller evaluates the complexity of the South African Constitution which in tis protection of religious freedom, provides for a degree of government regulation and interference into the affairs of religious institutions. The state regulates its association with religious institutions; however, over-regulation may violate the rights of communities to freedom of religion. The South African Constitutional Court asserts that religious believers may not instantly face exemptions from the law because of their religious convictions. However, whenever possible, the state should ensure believers are not placed in extreme situations where they must choose between remaining faithful to Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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their religion or respecting the law. Those affected should have access to different government laws and administrative procedures. The author argues that it is difficult to achieve a balance between the right to freedom of religion and expressing those rights, and between inclusivity and managing practices through legislation. Constitutional culture which Oliva explains in his chapter as the body of law which governs the collective life of the State (the Constitution), but with ‘culture’ encapsulates other norms which exercise powerful influence, in parallel to law, and to mold ways by which laws are interpreted and applied. It thus brings cohesion to disparate groups, and the intra- and extra-legal norms that can regulate collective life. Drawing comparisons with the US, Australia, and Scotland, the author examines the constitutional culture of England and its civil and criminal provisions regarding practising faith and exhibiting ideological belief. Derived from the common law right to freedom of conscience and belief, these existed in dicta long before modern human rights legislation, and today run alongside Article 9 of the European Convention on Human Rights (ECHR). A case study is provided which traces the development of Constitutional Culture in respect of Establishment, from its genesis in the Royal Court of Henry VIII through the Reformation and the Glorious Revolution’s Bill of Rights to the Human Right Act, 1998. Initially ‘robustly Anglican,’ historical events and societal shifts created a constitutional culture where all religious convictions are accorded equal respect. The author argues that the existence of religious freedom in the extra-legal sphere suggests these rights cannot be easily eliminated. The history and changing role of religion in Australia forms the concluding chapter. Whereas Aboriginal and Torres Strait Islander spirituality draws respectively on the stories of the Dreaming and the Tagai, British colonisation meant Christianity dominated until a century of migration changed the societal, cultural and religious landscape into a multicultural and multi-religious one. Unlike the US, Australia’s Constitution does not contain a Bill of Rights; however, freedom of religion is one of the five explicit individual rights in the Constitution. This right was derived from the religion clauses in the US Constitution; however, what constitutes religion and the extent of freedom has been the subject of several seminal cases in the High Court of Australia. As a federation, state human rights charters and anti-discrimination laws based on attributes, such as gender, sexual orientation, age, race and disability, intersect at times with religious freedom. Exploring this relationship, Black provides a contemporary analysis of Australia’s recent marriage laws, which eventually legalised same-sex marriage. The extent to which an appropriate balance exists between fairness and dignity for LGBTI+ people and religious freedom is evaluated. A recent Religious Freedom Review found that whilst religious freedom Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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was well protected, it could be enhanced by ensuring religion is protected in all of Australia’s discrimination laws. This is a position the author endorses. Bhuiyan in his chapter entitled ‘Religious Freedom in India and the Impact of Hindutva on Religious Minorities examines constitutional provisions on religious freedom in India from its inception as an independent secular nation and Hindutva’s impact on religious minorities especially during COVID-19. The ­Hindutva-inspired BJP government focused on religious divisions, thereby intensifying Hindu nationalism. Hindutva supporters argue that Hindutva denotes a ‘way of life’ of all Indians and emphasises the assimilation of religious minorities into the more ‘tolerant’ Hindu race. It promotes the development of a Hindu rashta (Hindu state) in contrast with the country’s secularity and democratic character. The author argues that the Hindutva threatens religious minorities’ rights, and if fully implemented will generate hatred and animosity among India’s many religious communities. This was apparent in the government’s use of COVID-19 to defame religious minorities and to demonise Muslims. The author argues that Indian secularism describes an ‘equidistant’ position towards all religions where law and religion are not indivisible. By contrast the BJP argues that secularism favours minorities and describe policies of favouring minorities as ‘pseudo-secularism’. The author contends that secularism, not communalism, should be supported because communalism involves a hegemonic fight and India must fight communalism when religion is used for political goals. Although international human rights law does not prevent the adoption of a state religion, state-religion relationships that restrict human rights, including religious freedoms and non-discrimination, are forbidden. The author argues Hindutva contravenes this right, and should not seek to become a Hindu state. 5

Concluding Remark

Each of the chapters that follow demonstrate that whilst there is consensus on the importance of religious freedom and the protections for that freedom secular states can offer, the paths nations take to achieve it differ. A Hindu proverb reminds us: There are hundreds of paths up the mountain, all leading to the same place, so it doesn’t matter which path you take. The only person wasting time is the one who runs around the mountain, telling everyone that his or her path is wrong.53 53

https://kindovermatter.com/2012/06/there-are-hundreds-of-paths-up-mountain.html.

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Bibliography Books Fox, Jonathon. Political Secularism, Religion and the State. Cambridge: Cambridge ­University Press, 2015. Glenn, Patrick H. Legal Traditions of the World. Oxford: Oxford University Press, 2004. Hjelm, Titus, ed. Is God Back: Reconsidering the New Visibility of Religion. London: Bloomsbury, 2015. Holyoake, George. The Principles of Secularism. 3rd ed. London: Austin and Co, 1871. Project Gutenberg, https://www.gutenberg.org/files/36797/36797-h/36797-h.htm# link2HCH0003. Hosen, Nadirsyah. Shari’a and Constitutional Reform in Indonesia. Singapore: Institute of Southeast Asian Studies, 2007. Milton JR and Philip Milton eds. John Locke: An Essay Concerning Toleration: And Other Writings on Law and Politics, 1667–1683. Clarendon: Oxford University Press, 2006. Raines, John, ed. Marx on Religion. Philadelphia: Temple University Press, 2002. Royle, Edward. Victorian Infidels: The Origins of the British Secularist Movement 1791– 1866. Manchester: Manchester University Press, 1974. Sajoo, Amyn, ed. The Shari’a: History, Ethics and Law. London: IB Taurus Publishers, 2018. Van De Poll, Evert. Europe and the Gospel. London: Versita, 2013. Wharton, Edith. Etham Frome. New York, Scribner, 1911 Project Gutenberg EBook #4517, https://www.gutenberg.org/files/4517/4517-h/4517-h.htm e. Zuckerman, Phil and John R Shook. The Oxford Handbook of Secularism. New York: Oxford University Press, 2017.



Journal Articles

Al-Dawoody, Ahmed. “The Islamisation of Secularism: The Case of Shaykh “Ali ‘Abd ­Al-Raziq.” Encounters 6 (2015), https://www.researchgate.net/publication/291971065. Al Faruki, Jakir and Md. Roknuzzaman Siddik. “Secularism and the Muslim World: An Overview.” Journal of Social Science 1, no. 1 (2017): 16–30. An-Na’im, Abdullahi Ahmed. “Human Rights, Universality and Sovereignty: The ­Irrelevance and Relevance of Sharia.” Global Policy 4, no. 4 (2013): 401–408. Davis, Derek H. “Religious Dimensions of the Declaration of Independence: Fact or Fiction.” Journal of Church and State 36, no. 3 (1994): 469–482. Efremova, NV. “‘Ali ‘Abd Al-Raziq as father of Islamic secularism.” Islam in the Modern World 14, no. 3 (2018): 93–114.

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Keddie, Nikki. “Secularism and its discontents,” Daedalus: Journal of the American Academy of Arts & Science 123, no. 3 (2003): 14–30. Murray, Stuart. “Post-Christendom, Post-Constantinian, Post-Christian … Does the Label Matter?,” International Journal for the Study of the Christian Church 9, no. 3 (2009): 195–208. Roald, Anne. “Expressing Religiosity in a Secular Society: the Relativisation of Faith in Muslim Communities in Sweden.” European Review 20, no. 1 (2012): 95–113.



International Instruments

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/. United Nations (General Assembly), 10 December 1948, 217 A (III). United Nations (General Assembly), 16, December 1966, United Nations, Treaty Series, vol. 999. United Nations (General Assembly) 25 November 1981, A/RES/36/55.



Website Content

“1521 Excommunication of Martin Luther.” World History. Accessed 11 January 2021. https://www.worldhistory.org/article/1903/1521-excommunication-of-luther-complete-text/. “Kind Over Matter”, accessed January 2022, https://kindovermatter.com/2012/06 /there-are-hundreds-of-paths-up-mountain.html. “Pew Research Centre”. Accessed December 12, 2021. https://www.pewresearch.org /fact-tank/2021/11/15/41. “Secular Countries 2021.” World Population Review. Accessed January 3, 2022. https:// worldpopulationreview.com/country-rankings/secular-countries.

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CHAPTER 2

Civic Religion and the Rationality of Persecution Darryn Jensen 1 Introduction1 Persecution is not an entirely irrational practice. Once it is conceded that political community depends, to some extent, upon widespread agreement about the ordering of the community’s public life, those who cannot agree can plausibly be accused of being selfish individuals who pose a threat to public order. In this chapter, it will be argued that this idea links the persecution of the early modern period in western Europe, specifically the post-Reformation period, with contemporary forms of persecution in Western countries. While the methods of persecution and the specific beliefs that attract it may have changed, the underlying logic of persecution has remained the same. It does not follow from the proposition that it is rational for states to persecute that it is good to persecute. The tradition of liberalism to which the nineteenth century British historian, Lord Acton, adhered emphasised the dispersal of authority among the many communities, apart from the nation state, to which citizens belong. In this tradition, the state does not have a monopoly upon defining what is a good life for its citizens. Activist states that demand extensive agreement upon what beliefs and practices constitute a good life give themselves greater scope to persecute and are, from the perspective of that liberal tradition, open to criticism. Such an activist state cannot have any principled commitment to religious freedom. At best, it can offer only pragmatic toleration of religious minorities that depends upon the ‘good behaviour’ of those minorities. States that minimise the sphere of the state and allow sub-national institutions and communities, including religious communities, to maintain order within their own spheres of authority minimise the pretext for persecution.

1 I would like to thank Professors Maimon Schwarzschild and Nicholas Aroney for helpful comments on an earlier version of this chapter. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_003 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Persecution in the Early Modern Period

Roland H Bainton observed that the Reformation ‘at once intensified ­persecution and at the same time opened the door to an ultimate freedom.’2 Of course, persecution of religious dissenters in western Europe in the late ­sixteenth century came in a variety of forms. Two episodes recounted by the eminent twentieth century historian of Tudor England, Conyers Read, serve to illustrate the variety of persecution as well as a shared undercurrent of that persecution. The first episode is related to perhaps the most notorious incident of ­persecution of the period, the Massacre of St Bartholomew’s Day Eve in 1572 in Paris, which was an incident that was, in England, the subject of ‘extreme indignation and a marvellous hatred against the French’.3 The French ambassador to England, Bertrand de la Mothe Fénelon, ‘set forth the official version of the massacre – the King’s last-minute discovery of a conspiracy of the Huguenots against his life and the lives of his mother and his brothers, the sudden emergency which had forced him to take instant action without due process of law,’ and assured the Queen that ‘no religious issue was involved.’4 While this explanation was regarded with some scepticism by the English court,5 the fact that it was offered as a partial justification for such indiscriminate killing of a group of people defined by their religious belief and practice tells of a perceived ­connection between religious dissent and threats to the security of the state. The second episode concerns Thomas Cartwright, who was the Lady ­Margaret Professor of Divinity at Cambridge and an advocate of the view that Presbyterianism was ‘the pattern of church government established by Holy Writ.’6 This advocacy placed Cartwright outside of the Elizabethan church settlement, which had entrenched Episcopacy as the form of government in the established Church of England. Lord Burghley, one of the Queen’s closest advisers, happened to be Chancellor of the University and, in that capacity, received a complaint that Cartwright was attempting ‘to overturn and overthrow all ecclesiastical and civil government.’7 Burghley, who was not without sympathy for the more radical ‘Puritan’ wing of the English reformation, saw the matter ‘rather as an academic exposition of Holy Writ than as a movement for

2 Roland H Bainton, “The Struggle for Religious Liberty,” Church History 10 (1941) 95. 3 Conyers Read, Lord Burghley and Queen Elizabeth (London: Jonathan Cape, 1965) 87 (citing a letter from Fénelon to Charles IX of France). 4 Ibid 89. 5 Ibid 89–90. 6 Ibid 112. 7 Ibid 113. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Church reform.’8 Nevertheless, Burghley was ultimately persuaded to approve of new statutes for the University that gave the heads of the colleges the power to deprive Cartwright of his professorship and prohibit him from preaching in the University.9 Read made the following comment about this episode: Certainly Burghley delivered Cartwright to his enemies. But, under the circumstances, it is hard to see how he could have done otherwise. A letter which he received from Cartwright late in August made it abundantly clear that something much more than a mere exposition of the Scriptures was involved. Cartwright invited Burghley to consider the question of Church organization as a statesman. In short, he invited Burghley to examine and by implication to approve Presbyterianism.10 Lord Burghley was, in Read’s telling of the story, in the difficult position of h ­ aving to abandon support for someone whose views he could support ­privately but not as an officer of the state. While the Cartwright episode was a matter of one person losing his livelihood and professional status and the ­Massacre of St Bartholomew’s Eve was a matter of massive loss of life, the shared undercurrent was that minority religious opinions were seen to have a political dimension and, therefore, be a threat to the stability of the state. A crucial matter in the logic of persecution in post-Reformation Europe was the sense that political community must, to some extent, involve religious community. Religious uniformity was connected with social order and the security of the state. Herbert Butterfield observed that ‘[e]ven in the ancient world it seems to have been in the nature of religion that it should be an affair of the whole community, though this might not necessarily prevent a people from adopting further gods from neighbours, allies, and conquered territory.’11 In sixteenth century Europe, ‘religion, though making so great a call on the ­pieties and the inner life of personalities, was at the same time the faith of entire nations.’12 The Reformation may have brought to an end the idea of Western Europe being united by Catholic Christianity, but the idea that different versions of Christianity could not co-exist within any one 8 Ibid. 9 Ibid. 10 Ibid (italics added); See also Michael McGiffert, “Covenant, Crown and Commons in ­Elizabethan Puritanism,” Journal of British Studies 20 (1980) 32sqq, who argued that the Puritans of the middle period of Elizabeth I’s reign presented the cause of church reform along presbyterian lines as ‘a national case of conscience for the civil authority’ (ibid 32). 11 Herbert Butterfield, “Toleration in Early Modern Times,” Journal of the History of Ideas 38, (1977) 574. 12 Ibid 576. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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monarch’s territory persisted in the form of the cuius regio, eius religio idea. According to Butterfield, it was the idea of a state as a religious society that ‘more than anything else prompted the insistence on persecution in the ‘early modern’ period.’13 It was difficult for an idea of religious liberty to develop in this context. What developed instead was an idea of toleration, which Butterfield described as ‘a retreat to the next best thing, a last resort for those who often still hated one another, but found it impossible to go on fighting any more.’14 In England, for instance, overt persecution of religious dissent waxed and waned according to the political climate15 and Roman Catholic and nonconformist Protestant forms of worship eventually came to be tolerated, although failure to conform to the established Church of England still involved social disadvantage, such as ineligibility for election to Parliament and exclusion from the universities of Oxford and Cambridge.16 Butterfield summarised the position as follows: [T]he policy of allowing dissenters to exist (and, to this degree, therefore, paying respect to the rights of conscience) while robbing the same people of governmental privileges and thereby reducing the nonconformists to the position of second-class citizens, is a practice introduced by the Christian churches and intended to vindicate the concept of a nation or a people as a single religious-society.17 13 Ibid. 14 Ibid 573. 15 Persecution, in Butterfield’s words, ‘excused itself (not always fairly) by claiming that it was moved only by political considerations’ (Ibid 580). 16 The Test and Corporation Acts, which limited the holding of public offices, including membership of Parliament, to members of the Church of England, were repealed in 1828. The Roman Catholic Relief Act 1829 allowed Roman Catholics to sit in Parliament. Roman Catholics had been prohibited from practising law prior to the Roman Catholic Relief Act 1791. Students at Oxford had, since 1581, been required to subscribe to the ­Thirty-Nine Articles of Religion (of the Church of England). Religious dissenters were able to attend Cambridge but were not able to take degrees. The Oxford University Act 1854 enabled dissenters to receive Bachelor’s degrees from Oxford. The Cambridge University Act 1856 did the same for Cambridge. It was not until the enactment of the University Test Act 1871 that Roman Catholics, Protestant dissenters and non-Christians were able to take up professorships, fellowships and postgraduate studentships at either university. See generally Michael Twaddle, “The Oxford and Cambridge Admissions Controversy of 1834,” British Journal of Education Studies 14, no. 3 (1966) 45 and Valerie K Lund, The admission of ­religious nonconformists to the universities of Oxford and Cambridge and to degrees in those universities (Master of Arts Thesis, College of William and Mary, Virginia, 1978) https://dx.doi.org/doi:10.21220/s2-xzep-p808. 17 Butterfield, above n 10, 580.

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Ronald Christenson distinguished persecution from punishment for deviant behaviour on the basis of the role that ‘civic religion’ plays in relation to the former: Persecution … is directed against a whole group of persons because of a potential threat they are thought to pose to a persecuting group. Civic religion tips the scale from punishment to persecution by shifting the weight of public policy from maintaining normal public order and safety to achieving public unity.18 Christenson suggested that a theory of persecution has five premises. First, there is “a sharp separation between a group on behalf of which the persecution is carried out (the chosen group) and a group which is persecuted (the alienated group)”.19 Secondly, ‘the separation is presented as the fault of the alienated group which acts, speaks, or believes out of private motives.’20 In other words, the members of the alienated group are accused of ‘selfishness.’ in that ‘their aims and desires clash with the one public world beheld by the chosen.’21 Thirdly, the persecutors ‘act as deputies, not only representing the chosen but actually embodying the public goals.’22 Fourthly, ‘the purpose of persecution is unity.’23 Fifthly, ‘a theory of persecution either links itself to accepted theology [as in the case of St Augustine] or develops along with a civic religion [as in the case of Thomas Hobbes].’24 Persecution is justified on the basis that ‘the victims of persecution act purely out of private motives, are hostile to public order and unity, and are harbingers of chaos.’25 Central to Christenson’s argument about the logic of persecution, then, is the idea of public unity around a set of beliefs about the proper ordering of society. It may involve unity as to the practice of theistic religion, but need not do so. In the case of Hobbes, the justification for persecuting others was to be found in the failure of those others to observe the requirements of the ‘civic religion’. Christenson suggested that, for Hobbes, the ‘civic religion’ focussed upon ‘creating a commonwealth personified as a god, united in the person of 18

Ronald Christenson, “The Political Theory of Persecution: Augustine and Hobbes,” ­ idwest Journal of Political Science 12, (1968) 420. M 19 Ibid 436. 20 Ibid. 21 Ibid. 22 Ibid 437. 23 Ibid. 24 Ibid. 25 Ibid 438.

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the sovereign.’26 Such a civic religion underpinned the ideas that the sovereign is the ‘judge of what opinions and doctrines are averse, and what conducing to peace,’ and that heresy ‘is nothing else by a private opinion obstinately maintained, contrary to the opinions which the public person … hath commanded be taught.’27 In short, dissenters are selfish people who deign to live according to their own lights (or even to propagate their dissenting views) instead of what the sovereign has decided is right. Persecution of such persons is permissible: Thus, those who are enemies of the commonwealth and suffer persecution at the hands of the sovereign are either within the commonwealth and under the covenant or outside the commonwealth and its covenant. If they are outside, they are in a state of war and beyond natural law limits and the duty of the sovereign to obey natural law in his conscience. If they are within, they are the authors of their own persecution, for they have covenanted to accept the sovereign’s will and by being an enemy of the commonwealth are also at the mercy of the sovereign.28 Christenson found in Hobbes’s thought, then, a clear articulation of a logic of persecution based on the connection between unity of belief and the security of the state. Lord Acton, who is most famous for saying that ‘power tends to corrupt, and absolute power corrupts absolutely,’29 wrote an essay entitled ‘The Protestant Theory of Persecution,’ in which he argued that persecution by Catholics and persecution by Protestants proceeded on different grounds. Acton claimed that the medieval Catholic theory of persecution was founded on ‘the religious unity of the empire’ and had ‘a practical motive.’30 The maintenance of the political and social order required the maintenance of religious uniformity.31 Luther, Zwingli and Calvin, for all their differences in doctrine, were united in seeing persecution as ‘justifiable only against error.’32 In doing so, according to Acton, ‘they set up a shield for themselves, and a sword against those sects for 26 Ibid 435. 27 Ibid; Here, Christenson was quoting Hobbes, specifically Chapter 42 of Leviathan. 28 Ibid. 29 Acton-Creighton Correspondence (1887) https://oll.libertyfund.org/titles/2254, Letter I. 30 John Emerich Edward Dalberg-Acton, “The Protestant Theory of Persecution,” in The History of Freedom and Other Essays, ed. John Neville Figgis and Reginald Vere Laurence (London: MacMillan & Co, 1907), 165. 31 Christopher Lazarski, “Enemies or Allies: Liberalism and Catholicism in Lord Acton’s Thought,” Krakowshie Studia Międzynarodowe 8, (2011) 189–190. 32 Ibid.

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whose destruction they were more eager than the Catholics.’33 In other words, since the Protestant churches (in their opinion) represented true religion, they could resist Catholic rulers, on the one hand, and persecute the Anabaptists and the other radical Protestant sects, on the other. It became the state’s duty and purpose to defend true religion.34 Acton observed that the only occasion on which Catholics adopted the Protestant theory of persecution was Louis XIV’s revocation of the Edict of Nantes.35 Bainton argued that Acton was mistaken in distinguishing so sharply between the Catholic and Protestant theories of persecution: Neither Catholic nor Protestant ever persecuted mere error but only obstinate error. Both persecuted heresy as heresy, and both believed that heresy, if unchecked, would disintegate society. Both were driven by the exigencies of the situation to suppress dissent. That was the theory of cuius regio eius religio, which conceded to princes of rival faiths the right to establish each his own religion and to expel dissenters; and the Anglican settlement was based precisely on latitude toward error and severity toward non-conformity.36 In Bainton’s opinion, the differences between the two theories of persecution were ‘comparatively trivial.’37 The most significant difference was ‘the legal basis for persecution,’ Catholics having recourse to Catholic canon law and Protestants abandoning it in favour of the Bible and the Code of Justinian.38 Acton was an adherent of the Catholic Church and may have been predisposed to find reasons for excusing persecution by Catholics. Christopher Lazarski has observed that Acton’s position on Catholic culpability ‘evolved a great deal, from absolving the Church from this sin to blaming it as a co-culprit.’39 Nevertheless, Acton saw Luther as the ‘main villain’, as Luther ‘subordinated religion and the Church to state authority.’40 In Acton’s views, this ‘weakened not only Protestant churches vis-à-vis civil authority, but undermined the position of the Catholic Church in countries that remained Catholic,’ so that the 33 Ibid. 34 Ibid 158 (regarding Luther), 173 (regarding Zwingli), 178 (regarding Calvin). 35 Ibid 170; The Edict of Nantes, which granted toleration to the Huguenots, was made by Henry IV in 1598 and revoked by Louis XIV in 1685. 36 Bainton, above n 1, 97–98. 37 Ibid 99. 38 Ibid 98–99. 39 Lazarski, above n 30, 190. 40 Ibid 189.

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‘original impulse of accommodating the Church to absolutism was thus supplied by Protestantism.’41 In any event, excusing persecution by Catholic powers was not Acton’s central scholarly aim. His purpose was to lay the groundwork for a particular conception of liberty. In the early pages of ‘The Protestant Theory of Persecution,’ Acton suggested that religious liberty is possible ‘only where the co-existence of different religions is admitted, with an equal right to govern themselves according to their own several principles.’42 This idea of liberty is to be contrasted with the ‘modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it.’43 This modern theory ‘emancipates the subjects of every such authority in order to transfer them exclusively to its own.’44 As Lazarski has explained, for Acton, liberty ‘originates at the lowest and smallest level of human organization’ and arises from ‘the mundane efforts of men and women to organize their local community, resolve their basic problems and decide how to run their daily life.’45 Accordingly, national government must ‘respect all legitimate secondary (partial) authorities and the rights of various minorities.’46 It must also respect ‘freedom of conscience,’ as conscience ‘is a voice of God in us, dictating to us what our duties are.’47 In this connection, it is important to appreciate that, for Acton, liberty was ‘the right to do what one ought to (not what one fancies).’48 Asserting freedom of conscience in the face of state power is not selfishness. It is an insistence that one should be allowed the space to perform one’s moral duty. Principled commitment to religious freedom, then, involves recognising that, for many people, there is a source of ultimate moral authority other than the state and that those people see themselves as having a moral duty to obey that authority. According to Maimon Schwarzschild, Acton was an advocate of ‘multicultural federalism’49 and was troubled by ‘any radical kind of egalitarianism,’ the implications of which were ‘trying to ensure human sameness, suppressing differences, equating state and

41 Ibid. 42 Acton, above n 29, 152. 43 Ibid 151. 44 Ibid. 45 Lazarski, above n 30, 182. 46 Ibid. 47 Ibid 183. 48 Ibid. 49 Maimon Schwarzschild, “Acton’s Liberal Multiculturalism and Today’s,” Journal of ­Contemporary Legal Issues 12, (2002) 887.

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society, setting up the state as moral teacher, and a susceptibility to utopian and fanatical abstractions about human life.’50 Acton’s argument with Protestant persecution seems to have been directed to Protestantism’s removal of religious authority from a supra-national (and theoretically independent) church to one that was wholly dependent upon the state.51 However latitudinarian such a state church may be, there is, under such a regime, no authority apart from that of the state. In this connection, Acton’s views harmonise with more recent Catholic ideas of ‘subsidiarity’ and with the ‘sphere sovereignty’ espoused by the Dutch Reformed theologian, Abraham Kuyper.52 The extent to which these models of dispersed authority succeed in practice depends upon the clarity of the boundaries between different spheres – and, in particular, whether the boundaries of the state’s sphere are clear and undisputed and the state respects those boundaries. 3

Persecution in the Contemporary West

There has, in recent decades, been a remarkable liberalisation of attitudes in most Western countries towards practices and behaviour that used to be widely stigmatised, if not criminalised. Obvious examples of such practices are elective termination of pregnancy and minority forms of sexual expression, notably homosexual and transgender expressions. Many people, informed and motivated by sincere religious belief, have been uncomfortable with this liberalisation and have sought to carve out spaces in which they may, at the very least, avoid cooperating in the provision of abortion services or the facilitation of homosexual or transgender lifestyles.

50 51

52

Ibid 891–892. The theoretically independent church of the medieval period was not completely independent from the state in practice. Certainly in England, the medieval period was marked by numerous struggles between the Crown and ecclesiastical authorities as to who had authority in relation to the appointment of bishops, punishment of clergy found guilty of crimes and other matters relating to church personnel. Accounts of some of the more significant disputes, those of St Anselm with William II and St Thomas Becket with Henry II, can be found in GWS Barrow, Feudal Britain: The Completion of the Medieval Kingdoms, 1066–1314 (London: Edward Arnold, 1956), 111–112, 150–152. See generally Kent Van Til, “Subsidiarity and Sphere Sovereignty: A Match Made in …?,” Theological Studies 69, (2008): 610sqq and Abraham Kuyper, “Sphere Sovereignty: A Public Address Delivered at the Inauguration of the Free University,’ (speech, 20 October, 1880) (tr George Kamps), www.reformationalpublishingproject.com/pdf_books/Scanned _Books_PDF/SphereSovereignty_English.pdf.

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One response of contemporary states to such religiously-motivated resistance has been to enact legislation to assure those who seek the contentious services that those services will be available to them. Several Australian states have enacted legislation that imposes an obligation upon medical practitioners, at the very least, to refer patients to another practitioner for termination of an unwanted pregnancy. Section 8 of the Abortion Law Reform Act 2008 (­Victoria) provides that where a woman seeking an abortion approaches a medical practitioner who ‘has a conscientious objection to abortion,’ the practitioner must inform the woman of the conscientious objection and then ‘refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.’ Similar duties are imposed by legislation in New South Wales and Queensland.53 In both New South Wales and Queensland, it is expressly provided that a failure of a practitioner to comply with this and other duties under the legislation is a matter to which regard may be had when considering the practitioners ‘professional conduct or performance.’54 In short, a medical practitioner who has a moral, ethical or religious objection to elective abortion, while not obliged to perform an abortion, is legally obliged to assist a woman to obtain an abortion from another practitioner. The consequence of not doing so may, at least in New South Wales and Queensland, be an adverse finding about the practitioner’s professional conduct or performance. In the Australian Capital Territory, there has been an attempt to ban, in certain situations, what is commonly called ‘conversion therapy.’ Section 8 of the Sexuality and Gender Identity Conversion Practices Act 2020 (ACT) provides that a person who performs a ‘sexuality or gender identity conversion practice’ upon a ‘protected person’55 commits an offence and is liable to imprisonment of up to 12 months. Section 7 of the Act defines ‘sexuality or gender identity conversion practice’ as ‘a treatment or other practice the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity.’ Patrick Parkinson and Philip Morris have described this definition as ‘extraordinarily vague.’56 The legislation gives examples of practices that would not fall within 53 54 55 56

Abortion Law Reform Act 2019 (NSW) s 9; Termination of Pregnancy Act 2018 (Qld) s 8. Abortion Law Reform Act 2019 (NSW) s 10; Termination of Pregnancy Act 2018 (Qld) s 9. The Dictionary in the Sexuality and Gender Identity Conversion Practices Act 2020 (ACT) defines ‘protected person’ as a child or ‘a person who has impaired decision-making ­ability in relation to a matter relating to the person’s health or welfare’. Patrick Parkinson and Philip Morris, “ACT’s conversion therapy ban puts practitioners at risk,” The Canberra Times, 26 August, 2020. (Patrick Parkinson is Professor of Law at the University of Queensland. Philip Morris is president of the National Association of ­Practising Psychiatrists.)

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the definition and contains a cross-reference to section 14 of the Human Rights Act 2004 (ACT) followed by a statement that it is ‘not intended that a mere expression of a religious tenet or belief would constitute a sexuality or gender identity conversion practice.’ As Parkinson and Morris have pointed out, all of the examples of practices that do not fall within the scope of the prohibited conduct ‘concern approaches that affirm a person’s gender identity and assist them to transition.’57 In other words, it is unclear whether counselling a person who has experienced gender dysphoria to accept a gender identity that conforms to the person’s anatomy falls within the scope of the prohibited conduct. One does not have to be completely sceptical about the authenticity of gender dysphoria to see problems in the breadth of this prohibition. There is a problem here for those counsellors and health care practitioners who conscientiously believe that, at least in some cases, the best option for a person is to conform to the gender identity that is commonly associated with the person’s anatomy. For the practitioner who believes, on grounds that include religious grounds, that the well-being of a person is best served by alignment of gender identity with anatomy and treatment that fosters this, the statement that the law does not intend to punish mere expression of a religious tenet or belief provides little comfort. In view of the uncertainty as to what is prohibited, the only safe course of action for such a practitioner is to say, ‘I believe that each of us is made to be either female or male, but the law requires me to affirm the gender identity that you believe that you have.’ Perhaps this will be followed by a referral to another practitioner. It would be wrong to attribute anything other than beneficent motives to the legislators who enacted these laws. Both of these law reform measures would appear to be directed to assisting persons who had suffered serious disadvantages in the past. On the other hand, it is arguable that the legislative remedies are an over-correction of those historical wrongs. In the case of abortion law reform, the apparent policy has not been merely to allow women to seek elective termination of pregnancy and medical practitioners to provide it but to ensure that termination of pregnancy is readily available by imposing an obligation on practitioners to assist women to procure terminations. In the case of the prohibition of conversion therapy, at least in the form that it has taken in the Australian Capital Territory, the apparent policy has been to ensure that persons seeking assistance with a gender transition are greeted with affirmation of that transition rather than questioning of it. A consequence of the pursuit of these policies has been to diminish the scope that professional persons 57 Ibid.

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have to bring their moral, ethical and religious judgement into play in the provision of the services that they provide. Health professionals are required to lead compartmentalised lives in which their religious beliefs must be confined to the private compartment and kept out of the professional compartment. Is it fair to describe the imposition of such a difficulty upon religious believers as religious persecution? People are not being killed, imprisoned or exiled simply because of their membership of a religious group,58 but some people are being presented with a choice between conducting their professional lives other than in accordance with their religiously-informed consciences, on the one hand, and the prospect of professional disciplinary proceedings, loss of livelihood or, in some cases, imprisonment, on the other hand. In other words, they are confronted with the possibility of a significant reduction of their social status and of the ability to support themselves financially. They are to be made pariahs or ‘second class citizens’.59 Excluding the infliction of those sorts of consequences from the definition of ‘persecution’ seems to draw a line in an arbitrary place.60 People are presented with such a choice because they understand themselves to have a religiously-informed moral duty to refrain from facilitating termination of pregnancy or affirming a person’s choice to pursue gender transition in some or all of the cases in which those services are requested. They feel obliged to dissent from public policy choices that health professionals must facilitate an individual’s choice to terminate her pregnancy or pursue a gender transition. For the state, such persecution is rational. The state conceives its mission in terms of providing access to particular services that many people think ought 58

59 60

Brian J Grim and Roger Finke, while acknowledging that definitions for religious persecution ‘vary widely’, preferred to define religious persecution as ‘physical abuse or physical displacement due to one’s religious practices, profession, or affiliation’. See Brian J Grim and Roger Finke, “Religious Persecution in Cross-National Context: Clashing Civilizations or Regulated Religious Economies?,” American Sociological Review 72 (2007) 643. See note 17 above and accompanying text. The British statesman, Thomas Babington Macaulay (1800–1859), in arguing for the removal of the various civil disabilities imposed on Jews, such as ineligibility for election to Parliament or appointment as judges, observed that to argue that it was impermissible to deprive a person of life or property on account of his religion but permissible to deprive him of public office on account of his religion was to draw the line in an arbitrary place. In Macaulay’s words, ‘[o]nce admit that we are bound to inflict pain on a man because he is not of our religion; and where are you to stop?’ (Lord Macaulay, “Cedars of Lebanon: A Speech on Jewish Emancipation,” (speech, January, 1948), Commentary, https://www.commentarymagazine.com/articles/lord-macaulay/cedars-of-lebanon-a -speech-on-jewish-emancipation/). I am grateful to Maimon Schwarzschild for drawing my attention to Macaulay’s speeches on this issue.

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to be available in a humane society. The English state at the end of the sixteenth century, by contrast, was more obviously concerned with matters of uniformity of religious worship and the potential threat that religious dissenters presented to the stability of the state through suspected allegiances with foreign powers. Nevertheless, the same logic that Christenson identified in historical justifications of persecution is present here. The role of the state, being no longer confined to the repulsion of external threats and maintenance of internal safety and order, has been expanded to deciding what services a humane society would provide to its members. Once the question is framed in terms of what ought to be provided, rather than what ought to be permitted, the ‘public world’ is expanded to include the choices of professional people as to what services they will provide and how they will provide them. Those providers who insist upon retaining a private domain of choice, in which questions as to what services they will provide will be resolved by reference to their own religious and ethical commitments, are seen to be ‘selfish.’ They are seen to be dissenters from the ‘civic religion.’ From that perspective, the state is justified in coercing them. The crucial matter that extends the rationality of persecution to new forms of ‘selfish’ behaviour, then, is the expansion of the role of the state. The role of the state, in practice, is not something that can necessarily be pinned down to constitutional texts. What the state can and ought to do is a matter of what those who constitute the state believe that the state may do and which is likely to be met with the acquiescence of most citizens. The widely-held beliefs about what it is permissible and desirable for the state to do are, at least, the core of the ‘civic religion’ that underpins justification of persecution. To the extent that the state operates within those parameters, its actions in overcoming resistance are seen to be justified. Western societies in the early twenty-first century are experiencing a tension between two ideas of the state. On the one hand, there is the idea of a limited state that leaves individuals largely free to choose their own versions of the good life while recognising that those choices will often be frustrated for various reasons.61 One common reason for the frustration of an individual’s choices is that the cooperation required from others for the realisation of those choices is not provided. On the other hand, there is the idea of a more activist 61

Note, in this connection, Murray Rothbard’s statement that it is “absurd to say that a man is not “truly” free in the free society because, in that society, no man is “free” to aggress against another man or to invade his property”. Rothbard was making a strong distinction between freedom to act and power of action (Murray N Rothbard, The Ethics of ­Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), 41. Similarly, it might be said that the fact that one’s choices are often frustrated by lack of cooperation from others is a l­imitation on power of action but not on freedom to act.

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state that aspires to enable the realisation of those choices. The idea of a ‘compassionate state’ appears to have acquired traction in certain places. On 27 June 2019, the California Legislature passed a resolution declaring California to be ‘the first Compassionate State in the United States of America.’62 That the compassionate state is meant to be an activist state is apparent in the statement that ‘[t]he state, along with its 58 counties and 482 cities, regularly empowers and supports compassionate programs and nonprofit services to improve the lives of all California residents and treat them with dignity.’63 In the Australian state of Victoria, the notion of compassion was invoked in connection with the enactment of legislation enabling voluntary euthanasia. The Minister for Health in Victoria is reported to have said that ‘the laws were giving people a compassionate choice, over the timing and manner of their death.’64 Daniel Fleming has argued that ‘legislation for [voluntary assisted dying] makes sense as an expression of compassion only within the narrative of neoliberalism.’65 According to the neoliberal narrative, the central concern is with ‘the suffering incurred by the dependency that fragility and illness entails, and its consequent loss of autonomy, self-regulation and self-surveillance.’66 The compassionate response ‘is to open up hitherto unavailable options for the exercise of autonomy in order to reinstate what has been lost, even to the extent of that ultimate expression of individual choice: to end one’s life.’67 The ‘neoliberal’ characterisation of the underlying philosophy of the Victorian assisted dying law is contestable, not the least because the possibility of assisted dying is open only to those who are in the advanced stages of a terminal illness.68 Not all people who suffer from chronic illness, permanent 62

Assembly Concurrent Resolution No 108, 2019–2020 Regular Session https://leginfo .­legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200ACR108. 63 Ibid. 64 Melissa Davey, “Assisted Dying: 52 Victorians ended their lives in first six months of new law,” The Guardian Australia, 20 February, 2020, https://www.theguardian.com/­australia -news/2020/feb/20/assisted-dying-52-victorians-ended-their-lives-in-first-six-months-ofnew-law. 65 Daniel Fleming, “The compassionate state? Voluntary Assisted Dying, n ­ eoliberalism and the problem of virtue without an anchor,” ABC Religion & Ethics, March 25, 2019, https://www.abc.net.au/religion/compassionate-state-voluntary-assisted-dying -neoliberalism-and/10937504. 66 Ibid. 67 Ibid. 68 In Victoria, a person, to be eligible for voluntary assisted dying, must have ‘a disease, illness or medical condition’ that is ‘incurable’ and ‘advanced, progressive and will cause death’, is likely to cause death ‘within weeks or months, not exceeding six months’ and ‘is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable’ (Voluntary Assisted Dying Act 2017 (Vic) s 9(1)(d)).

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disability or ongoing depression are given the option of calling for assistance in ending their lives. The restriction of this option to the terminally ill would seem to be premised on a value judgement that a life in the final stages of a terminal illness is less worth continuing than other lives.69 Nevertheless, for present purposes, it suffices to observe that the narrative of ‘compassion’ underlying the assisted dying law, whatever its precise terms, is only one of several possible ways of expressing compassion for the terminally ill. Fleming contrasted the neoliberal narrative with ‘the Hippocratic tradition of medicine’ and ‘the Christian conception of healthcare,’ both of which would ‘honour requests to withdraw or withhold treatments that a person wishes to withdraw or withhold’ but are committed to the ideas that ‘one should never intentionally kill, nor assist a person to kill themselves.’70 Fleming’s central point was that the Victorian government’s invocation of the idea of compassion was premised on a particular narrative about what is compassionate and this narrative conflicts with other narratives as to what is compassionate. That such conflicts exist is significant because voluntary assisted dying is assisted dying. What is permitted is that people with terminal illnesses may call upon others to assist them in bringing about the end of their lives and the others may provide that assistance.71 While the Victorian legislation provides for conscientious objection by medical staff,72 a study of the challenges anticipated by medical practitioners and staff in relation to voluntary assisted dying made the following finding: Overall, participants appeared fearful about being judged by other ­clinicians and management regarding their willingness to participate or not in [voluntary assisted dying]. Consistent respect for staff views was anticipated as a challenge. There were concerns about conscientious objection in practice, particularly about foreseen pressure on junior ­doctors and nurses to participate …

69

70 71 72

For an example of an argument, along these lines, that the idea of individual autonomy cannot, by itself, explain the voluntary assisted dying laws that have been proposed and enacted, see John Finnis, “Euthanasia, Morality, and Law,” Loyola of Los Angeles Law Review 31 (1998) 1131–1132. Fleming, above n 64. John Finnis has emphasised that voluntary euthanasia is ‘precisely an act in which you seek assistance from someone else, or which you are asking someone else to carry out, sharing your intent to destroy your personal life’. See Finnis, above n 68, 1131–1132. Voluntary Assisted Dying Act 2017 (Vic) s 7.

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Other anticipated challenges in organisational culture were protecting the privacy of clinicians who chose to be involved in [voluntary assisted dying] and preventing discrimination in the workplace based on a staff member’s position on [voluntary assisted dying].73 Once a state sees its mission in terms of facilitating the realisation of individual lifestyle choices (or, in the case of voluntary assisted dying, choices about how to end one’s life), it will be confronted with the problem that it may not be able to facilitate the realisation of everyone’s choices, not least because the realisation of one person’s choices may require the cooperation of another person. If A requires B’s cooperation to facilitate A’s choices and B has reasons, including ethical and religious reasons, for not cooperating, either A’s choice will not be realised or the state must demand B’s cooperation, thereby overruling B’s choice not to cooperate.74 The state that decides that A’s choice must be facilitated is being active in preferring A’s choices to B’s choices. At the very least, such a state must decide between the realisation of A’s choice and B’s choice. It is not possible for both choices to be realised. It can now be seen that an activist state that aspires to enable the realisation of people’s choices can easily become a persecuting state. Such persecution might not be explicit and direct. The study of challenges anticipated by medical staff in relation to voluntary assisted dying has shown that some staff fear a conflict between their personal values and a dominant workplace culture that is hostile to those values. Moreover, in a field such as medicine, what the state allows and endorses can easily become what the majority of the members of the profession will regard as the competent practitioner’s duty to provide. In other words, once the idea of autonomy in ending one’s life has become the ‘civic religion,’ it can easily become a ‘professional religion,’ to which members of the relevant profession would be well-advised to conform, if they wish to survive and prosper in their profession. Those who cannot conscientiously conform to the dominant view are justified in fearing for their professional 73

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Rosalind McDougall, Barbara Hayes, Marcus Sellars, Bridget Pratt, Anastasia Hutchinson, Mark Tacey, Karen Detering, Cade Shadbolt and Danielle Ko, “This is uncharted water for all of us’: challenges anticipated by hospital clinicians when voluntary dying becomes legal in Victoria,” Australian Health Review 44, (2020) 403. The litigation concerning refusal to supply wedding cakes for same-sex weddings provides another illustration of the conflict. See Lee v Ashers Baking Company Ltd and others [2018] UKSC 49 and Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, 138 S Ct 1719 (2018).

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careers and livelihoods, especially where the relevant professional association has a state-endorsed monopoly on professional admission and disciplinary matters. A civic or professional religion that places a high value on the realisation of certain types of choices will aspire to hegemony. That the realisation of choices depends upon the availability of voluntary cooperation on the part of others is, from the point of view of the civic or professional religion, a problem. The mission of the civic or professional religion is that those choices must be realised. Therefore, such a civil or professional religion is logically disposed to the suppression of beliefs and opinions that might discourage those who hold them to cooperate in the realisation of those choices. At the very least, the expression of such beliefs and opinions is perceived to be harmful to public order and needs to be suppressed. Accordingly, views the expression of which would need to be suppressed include the views that homosexuality is sinful,75 that transgender activism ‘is erasing the concept of sex,’ and hence is harmful to women,76 and that the underrepresentation of women in certain forms of employment is at least partially a product of innate differences between women and men.77 Only the first of these examples relates to the expression of a belief that is ‘religious’ in its foundation but, in each case, expression of beliefs and opinions is to be sanctioned because a civic or professional religion regards them as heresies that undermine its mission. The expression of such beliefs becomes dangerous action, rather than harmless belief or opinion, when viewed through the prism of the civic or professional religion.78 No argument as to how the law should deal with abortion, assisted dying or conversion therapy is offered here. The argument of this chapter is that the more the mission of the state extends to the facilitation of the realisation of individual lifestyle choices, then the more conflicts there will be between the 75 76

77 78

“Israel Folau’s posts about ‘homosexuals’ and ‘sinners’ draws criticism from rugby union figures and fans,” ABC News, 11 April, 2019, https://www.abc.net.au/news/2019-04-11/israel -folau-slammed-over-latest-anti-gay-comments/10991574. Pru Goward, “Feminists like JK Rowling struggle with the transgender movement, but they should not be silenced,” Sydney Morning Herald, 11 June, 2020, https://www.smh .com.au/national/feminists-like-jk-rowling-struggle-with-the-transgender-movement -but-they-should-not-be-silenced-20200610-p55173.html. Nalina Eggert, “Was Google wrong to fire James Damore after memo controversy?”, BBC News, 9 August, 2017, https://www.bbc.com/news/world-40865261. See generally Elijah Zachary Grant, “Reynolds Revisited: Minority Religions and the Belief/Action Dichotomy,” Nottingham Law Journal 28, no. 1 (2019) 16sqq.

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fulfilment of the state’s mission and the freedom of individuals to live their personal and professional lives in accordance with religiously-inspired values. Perhaps some of these conflicts are unavoidable and have to be resolved in one way or another in the interests of public peace and order, but a state that is modest in its mission will be able to avoid many other conflicts. This argument aligns with an observation made by Maimon Schwarzschild in relation to the issue of ‘religious exemptions’ in the United States: Religious Americans, therefore, belonging to many faiths and denominations, have reason to be especially concerned about over-reach of government, since the more regulation – particularly federal regulation, with its nationwide command and, often, its secularist bent – the more likely it is to impinge on religious practice and belief.79 A state that is motivated by a particular narrative of compassion may, upon being confronted with non-cooperation and resistance inspired by competing religious and ethical outlooks, be tempted to persecute. It is easy for such a state to see itself as a righteous persecutor. 4 Conclusion Persecution is not entirely irrational. Any political community requires agreement as to a range of matters relating to the ordering of its ‘public world.’ There is a limit to which the community can admit and tolerate those who refuse to join in the agreement. As the ‘public world’ in respect of which there must be agreement is extended, the scope for persecution is also extended. The idea of liberty championed by Lord Acton prompts us to consider whether we should allow this ‘public world’ to be extended so far that the secular state becomes, in practice, our ‘church.’ Where the state’s mission includes facilitating the realisation of lifestyle choices, then some lifestyle choices will necessarily be favoured over others and there will be no possibility of a principled commitment to religious freedom.

79

Maimon Schwarzschild, “Religious Exemptions from Civil Laws and Free Exercise of Religion in the USA,” in Law and Religion in the Liberal State, ed. Md Jahid Hossain Bhuiyan and Darryn Jensen (Oxford: Hart, 2020) 159–160.

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Bibliography Books Barrow, GWS. Feudal Britain: The Completion of the Medieval Kingdoms, 1066–1314 (­London: Edward Arnold, 1956). Rothbard, Murray N. The Ethics of Liberty. Atlantic Highlands, NJ: Humanities Press, 1982.



Book Chapters

Dalberg-Acton, John Emerich Edward. “The Protestant Theory of Persecution.” In The History of Freedom and Other Essays, edited by John Neville Figgis and Reginald Vere Laurence, 165. London: MacMillan & Co, 1907. Maimon Schwarzschild, “Religious Exemptions from Civil Laws and Free Exercise of Religion in the USA.” In Law and Religion in the Liberal State, edited by Md Jahid Hossain Bhuiyan and Darryn Jensen, 147–160. Oxford: Hart, 2020.



Journal Articles

Bainton, Roland H. “The Struggle for Religious Liberty.” Church History 10 (2) (1941): 95–124. Butterfield, Herbert. “Toleration in Early Modern Times.” Journal of the History of Ideas 38, no. 4 (1977): 573–584. Christenson, Ronald. “The Political Theory of Persecution: Augustine and Hobbes.” Midwest Journal of Political Science 12, no. 3 (1968): 419–438. Finnis, John. “Euthanasia, Morality, and Law.” Loyola of Los Angeles Law Review, 31, (1998): 1123–1145. Grim, Brian J, and Roger Finke. “Religious Persecution in Cross-National Context: Clashing Civilizations or Regulated Religious Economies?,” American Sociological Review 72, no. 4 (2007): 633–658. Grant, Elijah Zachary. “Reynolds Revisited: Minority Religions and the Belief/Action Dichotomy.” Nottingham Law Journal 28, no. 1 (2019): 16–26. Lazarski, Christopher. “Enemies or Allies: Liberalism and Catholicism in Lord Acton’s Thought.” Krakowshie Studia Międzynarodowe 8, no. 2 (2011): 179–196. McDougall, Rosalind et al., “This is uncharted water for all of us’: challenges a­ nticipated by hospital clinicians when voluntary dying becomes legal in Victoria.” Australian Health Review 44, no. 3 (2020): 399–404.

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McGiffert, Michael. “Covenant, Crown and Commons in Elizabethan Puritanism.” Journal of British Studies 20 (1980): 32–52. Read, Conyers. Lord Burghley and Queen Elizabeth (Jonathan Cape, London, 1965). Schwarzschild, Maimon. “Acton’s Liberal Multiculturalism and Today’s,” Journal of ­Contemporary Legal Issues 12, (2002): 887. Til, Kent Van. “Subsidiarity and Sphere Sovereignty: A Match Made in …?,” Theological Studies 69 (2008): 610–636. Twaddle, Michael. “The Oxford and Cambridge Admissions Controversy of 1834.” ­British Journal of Education Studies, 14, no. 3 (1966): 45–58.

Newspapers Davey, Melissa. “Assisted Dying: 52 Victorians ended their lives in first six months of new law,” The Guardian Australia, 20 February, 2020, https://www.theguardian .com/australia-news/2020/feb/20/assisted-dying-52-victorians-ended-their-livesin-first-six-months-of-new-law. Eggert, Nalina. ‘Was Google wrong to fire James Damore after memo controversy?, BBC News, 9 August, 2017, https://www.bbc.com/news/world-40865261. Fleming, Daniel. “The compassionate state? Voluntary Assisted Dying, neoliberalism and the problem of virtue without an anchor,”, ABC Religion & Ethics, 25 March, 2019, https://www.abc.net.au/religion/compassionate-state-voluntary-assisted-dyingneoliberalism-and/10937504. Goward, Pru. “Feminists like JK Rowling struggle with the transgender movement, but they should not be silenced,” Sydney Morning Herald, 11 June, 2020, https://www .smh.com.au/national/feminists-like-jk-rowling-struggle-with-the-transgender -movement-but-they-should-not-be-silenced-20200610-p55173.html. “Israel Folau’s posts about ‘homosexuals’ and ‘sinners’ draws criticism from rugby union figures and fans,” ABC News, 11 April, 2019, https://www.abc.net.au/news/2019-04-11 /israel-folau-slammed-over-latest-anti-gay-comments/10991574. Parkinson, Patrick, and Philip Morris, “ACT’s conversion therapy ban puts practitioners at risk.” The Canberra Times, 26 August, 2020.

Thesis Lund, Valerie K. The admission of religious nonconformists to the universities of Oxford and Cambridge and to degrees in those universities (Master of Arts Thesis, College of William and Mary, Virginia, 1978) https://dx.doi.org/doi:10.21220/s2-xzep-p808.

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Speech Kuyper, Abraham. “Sphere Sovereignty: A Public Address Delivered at the Inauguration of the Free University,’ (speech, 20 October, 1880) (tr George Kamps).

Cases Lee v Ashers Baking Company Ltd and others [2018] UKSC 49. Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, 138 S Ct 1719 (2018).

Acts Abortion Law Reform Act 2019 (NSW). Assembly Concurrent Resolution No 108, 2019–2020 Regular Session. Sexuality and Gender Identity Conversion Practices Act 2020 (ACT). Termination of Pregnancy Act 2018 (Qld). The Cambridge University Act 1856. The Edict of Nantes, made by Henry IV in 1598 and revoked by Louis XIV in 1685. The Oxford University Act 1854. The Roman Catholic Relief Act 1791. The Roman Catholic Relief Act 1829. The Test and Corporation Acts. The University Test Act 1871. Voluntary Assisted Dying Act 2017 (Vic).

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CHAPTER 3

In the Time of the COVID-19: Law, Religious Freedom and the Secular State Ann Black 1

The Context

There is no certainty on precisely when, where and how the virus ­S ARS-CoV-2 (coronavirus) which causes the disease COVID-19, came into the world. Reports indicate it emerged in November 2019 in Wuhan, China,1 with cases outside China detected in Europe, America, and Asia early in 2020. By March it had spread across the globe with only the most remote of nations immune from its devastating consequences. The virus did not discriminate between the first and third world. In response, on the 11th of March 2020, the World Health Organization officially labelled the COVID-19 a pandemic.2 SARS-CoV-2 (coronavirus) was a new viral strain, a sub-type, with no known cure, easily transmissible between people, able to spread widely and rapidly across the world.3 It is one in a line of pandemics stretching back to ancient times. Although the final tally of COVID-19’s deaths is not yet calculable, the grim statistics of deaths and infections, confronting images, endless media reporting, press conferences, and Twitter commentary make this 21st century pandemic different from its predecessors. Instantaneous communication facilitated dissemination of information but elevated fear and panic. With earlier pandemics doctors were generally impotent in managing treatment or determining causation. Hence, pandemics were understood as a scourge of God4 or some supernatural force. Cures lay in prayer, sacrifices, amulets, and folk remedies. God was central to the cause, the cure, and the care of the inflicted. Today, religion is at the periphery of the response. Science determines the cause and cure; executive governments 1 Helen Davidson, “First Covid-19 Case Happened in November, China Government Records Show,” The Guardian, March 13, 2020, https://perma.cc/B3MB-VF7E. 2 Tedros Adhanom Ghebreyesus, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19,” March 11, 2020, https://perma.cc/87KT-HWR7. 3 For the distinction between pandemic and epidemic see: Adam Feldman, “What to know about Pandemics,” Medical News Today, March 30, 2020, https://www.medicalnewstoday .com/articles/148945. 4 Werner Schreiber and Friedrich Mathys, Infectio (Basle: F Hoffman-La Roche, 1988): 12–13. © Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/9789004449961_004 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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In the Time of the COVID-19

­ anage care through state-run facilities with health directives to prevent m ­contagion. Today’s 21st century pandemic has elevated science over religion and public officials over religious luminaries. Mazurkiewicz ­postulates that because ‘evil’ diseases can be treated and patients healed by science, ­doctors have become the priests of worship; in essence, a ‘secular substitute for salvation.’5 This chapter will reflect on the triangulation of law and religious freedom within the secular state during the COVID-19 pandemic. To encompass its global impact, the chapter will draw on illustrative experiences from many secular nations. It will begin with how religions themselves conceive pandemics (once described as plagues or pestilence), before considering secular state approaches and priorities. The responses of religious adherents to state ­measures are in turn assessed in four categories (1) adaptors, (2) endorsers, (3) defiers and (4) challengers. The final part looks at religious minorities who were labelled super-spreaders, thus becoming COVID-19 scapegoats. 2

Religious Perspectives on Pandemics Allah did not send down any disease but that he also sent its cure. Hadith of the Prophet Mohammad 6

To fulfil God’s design for disease and cures, this hadith imports a role for ­scientific knowledge. There are outliers, discussed later, but today the members of most mainstream religions endorse scientific research into cause and cure of coronavirus and adhere to executive government orders for limiting spread of COVID-19. Over a thousand years ago, Muslim physician Ibn Sina7 (980–1037) expounded quarantine as a means for containment of infectious diseases, and saw science, medicine, and Islam as interconnected. Some scientists today, including virologist and theologian Mirjam Schilling at Oxford University8 continue similar allegiances, challenging assumptions of writers such as Agamben that the only ‘successors to theologians are virologists.’9

5 Piotr Mazurkiewicz, “Religious Freedom in the Time of the Pandemic,” Religions 12 (2021): 103, 111, http://doi.org/10.3390/rel12020103. 6 Narrated d by Abdullah ibn Mas’ud Sunan Ibn Mājah 3438. 7 Known in Latin as Avicenna. 8 Mirjam Schilling, Joel Gamble, and Nathan Gamble, “Fear not, sneer not: a healthy Christian response to COVID-19,” ABC Religion & Ethics, March 17, 2020, https://www.abc.net.au/reli gion/coronavirus-a-healthy-christian-response-to-covid-19/12063556. 9 Giorgio Agamben cited by Mazurkiewicz “Religious Freedom,” 11.

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The fear, anxiety and powerlessness generated by pandemics mean people seek explanations and for millennia found answers in supernatural forces ‘whether divine, malevolent, or ancestral.’10 Followers of the three Abrahamic religions look to an all-powerful, all-knowing, but compassionate God for answers. Pandemics were understood as expressions of God’s singular power to warn and punish for earthy sins. Quranic and Biblical narratives suggest that plagues most likely strike when commandments of God are not followed.11 This is echoed today by some fundamentalist Christians and conservative Muslims who see the COVID-19 pandemic as divine retribution for modern-day sins, such as homosexuality, gay marriage, abortion, blasphemy, and environmental degradation. Franklin Graham an American evangelist preached that, ‘This pandemic, is a result of a fallen world, a world that has turned its back on God.’12 This can lead to blaming ‘others,’ typically minorities, for invoking God’s wrath, with prejudice, discrimination and scapegoating ensuing. Pandemics can be a source of mercy for believers, as disease and suffering in this world can obliterate sins. Hadiths indicate that if Muslims die due to a pandemic, they die as martyrs,13 closer to Allah both in this world and in the hereafter.14 In Judaism, plagues fulfil a didactic role as judgment, punishment, and for instilling knowledge of God.15 The Exodus story instructs: ‘Egypt shall know that I am Yahweh’ (at 7:5). The Christian New Testament has internal divisions. While Christ’s role as a healer dominates the Gospels,16 the book of Revelations foretells an apocalypse. The First Horseman of the Apocalypse has been interpreted as the spreader of pestilence and disease, which is theologically

10 11 12 13 14 15 16

Howard Phillips, “’17, ’18, ’19: religion and science in three pandemics, 1817, 1918, and 2019,” Journal of Global History 15, no. 3 (2020): 434. Quran 42:30, 2:59, 7:133. The Bible: Exodus 7:12 and 1 Chronicles 21:14. Craig Bannister, “It is because sin is in the world,” CNS News, April 6, 2020, https://www .cnsnews.com/blog/craig-bannister/rev-franklin-graham-god-didnt-plan-coronavirus -its-because-sin-thats-world. There are several hadiths of the Prophet Mohammad in support of martyrdom for those who die from plagues and pandemics. Sahih al-Bukhari - https://sunnah.com /bukhari:2830. Zohaib Ahmad and Arzoo Ahad, “COVID-19: a Study of Islamic and Scientific Perspectives,” Theology and Science 19, no. 1 (2021), 38, https://www.tandfonline.com/doi/full/10.1 080/14746700.2020.1825192. Tammi Benjamin and Marc Mangel, “The Ten Plagues and Statistical Science as a Way of Knowing,” Judaism 48, no. 1 (1999): 17. Johnson Kutty, “Reading the Fourth Gospel in the COVID-19 Pandemic Context,” HTS Theological Studies 77, no. 4 (2021): 1.

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closer to the ten plagues sent to Egypt in Exodus.17 Fundamentalist Christians continue to draw on Revelations to shape their response to COVID-19. In Buddhism, the Buddha’s role of compassion presents plagues as earthly disasters to be met with spiritual answers. Whilst ‘karma’ operates on an ­individual level with moral consequences for one’s deeds, the widespread, catastrophic nature of pandemics takes them outside a karmic lens.18 Mantras invoke the deities for individual protection. The essential difference between the theological views of plagues/­ pandemics is the degree to which they are recognised as either earthly events or products of divine intervention. Religions allow another dimension of understanding in which the spiritual complements science. Markiewicz contends ‘religion protects not only from putting undue value on health, but from placing excessive hope in medicine.’19 3

Secular Responses Render unto Caesar the things that are Caesar’s, and to God the things that are God’s. Gospel of St Mark 12:17 20

Decoupling what is God’s and what is the State’s is a distinguishing feature of the secular state. Although adhering to religion is not required in a secular state (unlike in a religious state), the relationship between religion and government varies according to the nation’s ideological framework. The ideological framework of the People’s Republic of China, for example, manages secular separation of religion from state by promoting atheism but permitting five state approved religions,21 which are regulated to ensure members do ‘not infringe upon the interests of the State, society and of the collective.’22 The state monitors and controls public and collective manifestations of citizens’ 17 18

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Phillips, “17, ’18, ’19,” 434. Sue Smith, “Considering Karma: Reviving Student Agency Amid Pandemic Disempowerment,” International Journal of Multidisciplinary Perspectives in Higher Education 5, no. 1 (2021): 156; Bruce Reichenbach, “Karma, Causation and Divine Intervention,” Philosophy East and West 39, no. 2 (1989): 135. Mazurkiewicz, “Religious Freedom,” 13. Holy Bible (King James Version). Buddhism, Taoism, Islam, Protestantism & Catholicism. For each, there is a government association to monitor and supervise. Constitution of China, Article 51.

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religious beliefs for compliance with state goals and the interests of the ruling Chinese Communist Party. Liberal democracies take a different route by disallowing the state to impede the religious practice of its citizens and by enshrining covenantal protections for freedom to believe or not to believe, including the right to manifest that belief with others. As the chapters in this book show liberal democracies reflect their respective history, culture, and priorities, by decoupling religion from the state differently, but common to all is adherence to international rights covenants, and legal protections for freedom of religion, worship, and association. A secular state is to accord all religions, with few exceptions,23 an equal place within it. As important as religious freedoms are in a liberal secular state, situations of necessity and emergency are accepted limiters. Constitutions, domestic legislation, and international covenants to which secular nations are signatories set out the parameters by which the state can lawfully suspend or derogate from guaranteed freedoms. The challenge for secular governments is how to balance human rights with extraordinary health measures deemed necessary to contain the virus; the latter ostensibly based on informed medical advice. When this advice is not publicly available or transparent, distrust increases. Where freedom of religion sits within a nation’s hierarchy of rights factors into how ‘essential’ it is when governments determine restrictions. Mazurkiewicz’s survey of 19 European nations during two waves of the pandemic showed high restrictions on public religious gatherings and services in the United Kingdom, comparatively moderate restrictions in Austria, whilst Spain and Hungary had few or low restrictions.24 Some local governments in America exempted religious gathering from bans of gatherings, whereas other enforced greater restrictions,25 such as Texas. As viral transmission is the same, the divergence in state responses equates to the place which is accorded to religion. Mazurkiewicz argues that in secular societies, ‘health and physical life appear to be the most important values,’ partly because ‘medicine has become a substitute for religion.’26 All else is devalued to maintain health. In federations, such as the United States, variation in values between states comes through in the 23

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Singapore for example deregistered Jehovah’s Witnesses as a religion because members refuse to perform military service (which is obligatory for all male citizens) or swear oaths of allegiance to the state. Pew Research Centre found that Jehovah’s Witnesses and Baha’is were among the most frequently banned groups in the 41 nations which have such bans in place. . Mazurkiewicz, “Religious Freedom,” 6, 7. See, Michael Conklin, “The Most Demanding Test Known to Constitutional Law,” ­Washburn Law Journal 60, (2020): 1, 15–16. Mazurkiewicz, “Religious Freedom,” 11.

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Supreme Court cases on proportionality (discussed later in this chapter at 3.4). Ultimately whether any limitation on religious freedom is legally justifiable becomes one for the courts to determine. 3.1

International Covenants Human rights need to be front and centre in response to coronavirus.27 United Nations High Commissioner for Human Rights Michelle Bachelet

The UN High Commissioner for Human Rights reminded governments that: ‘Lockdowns, quarantines and other such measures to contain and combat the spread of COVID-19 should always be carried out in strict accordance with human rights standards and in a way that is necessary and proportionate to the evaluated risk.’28 The measure of what is necessary and proportionate recurs in evaluating government limitations on freedom of religion. Most liberal secular states are signatories to the Universal Declaration on Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) which require guarantees for freedom of religion, ‘either individually or in community with others, and in public or private’ and to ‘manifest religion or belief in worship, observance, practice and teaching.’29 Restrictions are possible only when prescribed by law and necessary to protect legitimate state interests, one of which is public health.30 The nature of COVID-19 is such that the risk to the public is deemed severe thereby necessitating severe proportionate limitations on civil liberties. Nations give effect to Covenantal rights in different ways: constitutional provisions, incorporation into domestic legislation or as principles of jurisprudence. Internationally, the Siracusa Principles31 elaborate on legitimate restrictions. Laws ‘imposing limitations on the exercise of human rights shall not be arbitrary or unreasonable’ (16) and public health measures taken by a ‘State to deal with a serious threat to the health that limit rights’ must be specifically aimed at ‘preventing disease or injury or providing care for the sick and injured’ (25). The Principles do not allow complete derogation of freedom of religion but enable governments to b­ alance this 27

United Nations Human Rights: Office of the High Commissioner, ‘Coronavirus: Human Rights need to be front and Centre,’ https://www.ohchr.org/EN/NewsEvents/Pages /­DisplayNews.aspx?NewsID=25668&LangID=E. 28 Ibid. 29 Article 18 ICCPR. 30 Subsection 3. 31 Commission on Human Rights. https://undocs.org/en/E/CN.4/1985/4.

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right with efforts to combat the spread and manage disease through neutral responses which should not disproportionately limit religious worship, or discriminate against believers. 3.2  Getting the Balance Right: Executive Limitations on Religious Freedom Limitations on personal and associational autonomy—unthinkable in normal times—have been imposed, in circumstances in which most major faith groups have been complicit and supportive.32 Mark Hill QC London Although rarely used, secular countries have long had powers to limit the spread of contagious diseases. In keeping with separation of powers doctrine each of the three branches of government have a role. Legislatures enacted principal statutes that conferred powers upon executive to prevent spread of diseases like COVID-19,33 with delegated regulatory powers to executive arm of government. In a public health crisis, public officials such as Health and Biosecurity Officers in Australia, or agencies such as the Centre of Disease Control in Korea and Taiwan’s Central Epidemic Command Centre can issue directions and orders which curtail freedoms through coercive obligations which would otherwise be considered authoritarian, draconian, and unconstitutional. In Australia, for example, there were bans on international travel from Australia (government permission needed for entry and exit) with citizens arriving in Australia required to isolate in government-approved facilities. Governments across the world issued ‘stay-at-home’ orders, or ‘lockdowns’ to restrict citizens lawfully leaving their homes, the activities they were permitted (or forbidden) to do, the numbers who could be present at a venue with distancing, contact, and masking mandates. For varying periods of time, businesses, schools, and religious venues closed. Extraordinary encroachment on personal civil liberties occurred with testing, contract tracing, and isolation orders with compliance enforced by police and armed forces. Criminal sanctions were imposed for breaches. Courts heard and determined criminal cases but importantly 32 33

Mark Hill, “Locating the right to freedom of religion or belief across time and territory,” in Handbook on Freedom of Religion of Belief, eds. Silvio Ferrari, Mark Hill, Jamal Arif, and Rossella Bottini (London: Routledge, 2020), Introduction. In Australia, the COVID-19 was added to the list of diseases in the Biosecurity Act 2015 (Cth). Similarly In England, Public Health (Control of Disease) Act 1984; in Korea, ­Infectious Diseases Control and Prevention Act; in India, Epidemic Diseases Act 1897.

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acted as a check on excessive executive powers. Religious leaders and institutions could challenge whether executive orders had been equitably implemented or had disproportionally limited religious freedom. Most religious denominations and people of faith adhered faithfully to the executive orders and directives by making significant adaptions to the public and communal aspects of religious practice. In addition, there were religious leaders who by word and actions publicly endorsed government approaches. A minority rejected and defied their governments, and at times brought court challenges in the name of religious freedom. Each of these responses – ­adaptation, endorsement, defiance, and litigation will be explored across a range of secular states. 4

Religious Responses to Restrictions on Their Freedom

4.1

Adaptation Let every person be subject to the governing authorities. Romans 13:1

An armoury of COVID-19 restrictions detailed in executive orders was applied to most sectors of society. The impact on religious congregations was significant. First, churches, mosques, and temples were closed, or could open with numerical and distance restrictions constricting in-person worship. Second, holy days traditionally shared with family and like believers - Easter, Christmas, Ramadan, Passover, Diwali, Holi, Navratri, Vesak - were restricted. Pilgrimage to Mecca for hajj and umrah was postponed. Third, the coming together of believers for communal services of worship integral to all faiths, such as the eucharist and singing of hymns for Christians, and the obligatory Jummah and daily prayers for Muslims, were curtailed or limited. Fourth, life and death events imbued with religious blessing and meanings including weddings, christenings, bar mitzvah, Jewish circumcision, burials, and funeral services curtailed. Fifth, the essential religious task of ministering to the ill, elderly, infirmed, those in financial, spiritual, and emotional need was adversely affected. Given the isolation, anxiety, and economic disruption, restrictions arose at a time when, arguably, human contact was most needed. Research indicates that practicing one’s faith increases morale, a sense of belonging, reduces fear of death34 and through attending services and prayers a supportive social ­network develops 34

Ram Cnaan, The Newer Deal: Social Work and Religion in Partnership (New York: Columbia University Press, 1999), 139.

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which in-turn increases well-being. Combined, the restrictions on religious practice, especially when they lasted for many months created an ‘extraordinary burden on the fundamental right of exercising religion.’ Lord Justice Hickinbottom described the situation in the United Kingdom, as ‘possibly the most restrictive regime on the public life of persons and businesses ever—certainly outside times of war.’35 Most religious communities, institutions, and leaders across the world voluntarily surrendered core tenets of religious practice to comply with executive orders. They published COVID-19 guidance and information booklets for their followers. Religious worship shifted to online including live streaming, Zoom, Twitter-sermons, YouTube, and Facebook Live to keep congregations engaged. In America drive-in church services were held in parking lots. In ­Australia, the 4 sq metre separation rule meant forced reduction in attendees who needed to register and vie for an allocation. Inventive adaptions were seen in Europe and America where priests placed a photos of church members on the pews and conducted mass for the images.36 In the Philippines, the priests gave Palm Sunday blessings to members of their congregation who stood outside their homes. Dein with other researchers confirmed that the internet became ‘the primary locus of religious activity’37 marking a shift from public to private prayer. Prayer remained important for bringing people closer to their God in challenging times. Pray.com,38 one of many interfaith Christian apps and multimedia websites, saw downloads increase during the pandemic by 955%.39 For Muslims, Muslim Pro40 fulfilled a similar role. When the Dalai Lama advised Buddhists to chant the ‘tara mantra’41 at home to cultivate compassion for themselves and others, online mantra sites proliferated. With in-person 35 36 37

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Dolan, Monks and AB v Secretary of State for Health: Reasons for Grant of Permission to Appeal, August 4, 2020, per Hickinbottom LJ. [2020] EWHC 1786 (Admin). NBC News, “Priest puts pictures of parishioners in pews to celebrate Mass,” NBC News, March 21, 2020, https:/www.nbcnews.com/video/priest-puts-pictures-of-parishioners-inpews-to-celebrate-mass-81034821648. Simon Dein, Kate Loewenthal, Christopher Lewis and Kenneth Pargament, “COVID-19, mental health and religions: an agenda for future research,” Mental Health, Religion & Culture 23, no. 1 (2020): 1–9, https://www.tandfonline.com/doi/full/10.1080/13674676.202 0.1768725. https://www.pray.com.au. Jackie Davalos, “Venture Funders Flock to Religious Apps as Churches Go Online,” Bloomberg News, October 11, 2020, https://www.bloomberg.com/news/articles/2020-10-11 /venture-funders-flock-to-religious-apps-as-churches-go-online. https://www.muslimpro.com. Mantras to the bodhisattva Tārā, a female goddess of compassion and well-being, are for protection.

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c­ ollective prayer and worship limited, the shift to the online was accepted and normalised. This may have long term consequences for religious practice postpandemic. Hill suggests that ‘hybrid acts of worship will persist, incorporating the old-style liturgies with the virtual.’42 4.2 Endorsement Saving lives is an act of worship. Islamic scholar, Tahirul Qadri 43 The leaders of faith communities became trusted sources of authority who could counter confusion or scepticism surrounding public health orders. By endorsing health measures to their congregations and by personally following restrictions, their example influenced acceptance of government recommendations. They showed the equality principle in action. Queen Elizabeth, head of the Church of England, sat alone, masked, and distanced from her family at the funeral of the Duke of Edinburgh. Pope Francis cancelled his Sunday blessings for the faithful in St Peter’s Square and held the Good Friday procession without a public presence. Images of a handful, rather than millions of M ­ uslims circumvallating the Kaaba in Mecca re-enforced that even in the holiest of places, health advice must be followed by Muslims. The Dalai Lama issued a voice clip of him chanting a mantra for emulation, releasing a l­etter of support for the measures of India’s Prime Minister Modi. Taiwan’s Temple’s Association postponed the annual Matsu procession. Legitimising public health decrees by endorsement assisted secular governments everywhere. When faith communities raised ethical concerns about vaccination ­programs, support for vaccination by religious leaders helped overcome initial distrust. All governments wanted a vaccinated population to reduce COVID-19 deaths and health complications, even though effectiveness of the vaccine type and the concepts of ‘herd immunity’ were open to debate. Early data from several nations showed initial lower rates of vaccination amongst ­religious sectors. One of the lowest was orthodox Jews until Rabbis voiced ­support to negate theological concerns. In the United Kingdom, the Royal College of ­General Practitioners reported, and imams confirmed, suspicion of 42 43

Michael Hill, “Coronavirus and the Curtailment of Religious Liberty,” Laws 9 (2020): 27, doi:10.3390/laws90400027. Tahrir Qadri, “Faith Leaders Spread the Word: Get Vaccinated,” WebMD, January 6, 2021, https://www.webmd.com/vaccines/covid-19-vaccine/news/20210126/faith-leaders -spread-the-word-get-vaccinated.

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the vaccine in Muslim communities was disproportionally high.44 One reason was fear the vaccine may contain haram (forbidden) ingredients, especially porcine-derived. Whilst manufacturers including Oxford Astra Zeneca reassured Muslims there were no animal-derived components, it was endorsement by leading imams of Astra Zeneca’s Islamic-compliance that helped dispel concerns. The Australian Imams Council issued a fatwa deeming vaccinations against COVID-19 permissible emphasising the religious obligation to preserve life.45 Even where there may be haram components (as in Sinovac) Islamic jurists use necessity and public welfare (maqasid al sharia)46 to rule it was halal (permissible). American Imam Ammar Amonette wrote, ‘We have a religious duty and obligation to be vaccinated as long as competent science and medical authorities approve the vaccine… anything that saves lives takes precedence over food prohibitions.’47 Pew Research found that in America atheists were most likely to have the vaccine whilst ‘white’ evangelical protestants were least likely.48 Initial reluctance amongst evangelicals and Catholics was because of cell-line derivation from an aborted foetus. The Johnson and Johnson vaccine first used in America had cloned cells from a foetus aborted in the 1980’s. Catholic and evangelical churches oppose abortion. For this reason, the American Council of Bishops initially recommended the faithful avoid it49 but in December 2020 the same Council came out in support: ‘In view of the gravity of the current pandemic and the lack of availability of alternative vaccines, the reasons to accept the new COVID-19 vaccines from Pfizer and Moderna are sufficiently serious to justify their use, despite their remote connection to morally compromised cell lines.’50 The bishops added that having the vaccine was ‘an act of charity toward the other members of our community.’ This endorsement was re-enforced by a photograph of Pope Francis being vaccinated. The Dalai Lama posted a similar 44

Sadakat Khadi, “For Muslims wary of the Covid vaccine there is every reason not to be,” The Guardian, February 18, 2021, https://www.theguardian.com/commentisfree/2021 /feb/18/muslims-wary-covid-vaccine-religious-reason. 45 https://www.anic.org.au/wp-content/uploads/2021/02/AFC-Coronavirus-COVID-19 -­Vaccine-Fatwa.pdf. 46 Ibid. 47 WebMD: above. 48 Cary Funk and John Gramlich, “10 facts about Americans and coronavirus vaccines,” Pew Research, September 20, 2021, https://www.pewresearch.org/fact-tank/2021/03/23/10 -facts-about-americans-and-coronavirus-vaccines. 49 Robert Iafolla, “Can Workers Reject the J&J Shot? Religious Objections Explained,” Bloomberg Law, March 11, 2021, https://news.bloomberglaw.com/daily-labor-report/­­can -workers-reject-the-j-j-shot-religious-objections-explained. 50 WebMD: above.

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image to show support and compatibility with Buddhist teaching. In Greece, the government enlisted Greek Orthodox Church Archbishop Ieronymos to encourage COVID-19 vaccinations.51 In many nations, ecumenical support for the vaccine united faith groups and the government in a joint effort to encourage vaccination and to counter misconceptions. 4.3 Defiance When religious leaders defied health orders by allowing their congregations to meet, worship and pray, or meet with fewer modifications than the state required, they faced criminal sanctions and risked the health of their communities. It also tarnished their brand of religion and, at times, religious communities generally. Flaunting government orders and dismissing medical advice as a hoax, a small number of religious sects in several nations continued to hold communal events. Some became breeding grounds for COVID-19 infections which attracted national and international media condemnation and gave credence to perceptions of religion as superstitious and out-of-step with modernity. In secular states where science and the scientific method reign, groups which prioritised tradition, scripture, and ‘trust in God’ over scientifically informed public health orders, were out of step with the time. It overshadowed the beneficial consequences of faith and community aid given by religious entities to those experiencing illness, stress, isolation, and fear of COVID-19. An early instance of defiance was when the Greek Orthodox practice for distributing holy communion (also known as the eucharist) by a traditionally shared spoon was continued on the justification it was ‘impossible for any disease, including the coronavirus, to be transmitted through Holy Communion.’52 Bishops such as Ioannis of Lagadas claimed that the ‘2,000-year history of the church allows us to say with certainty that germs do not thrive through Holy Communion.’53 Its Synod initially declared the scientific warnings against the 51 52

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Athens Bureau, “Archbishop Ieronymos II: Being Vaccinated is an Act of Christian ­Solidarity,” Greek City Times, April 15, 2021, https://greekcitytimes.com/2021/04/15/arch -bishop-ieronymos-vaccination. Elena Becatoros and Costa Kantouris, “Communion Unchanged in Greek Orthodox Church despite Virus,” Associated Press, May 30, 2020, http//apnews.com /article/athens-virus-outbreak-ap-top-news-international-news-lifestyle-42165e482f3fb b126a38e39fdf5c94f2. Lydia Emmanouildou, “In Greece a clergyman’s death reignites communion spoon debate,” The World, November 30, 2020, www.pri.org/stories/2020-11-30/greece-clergyman-s-death-reignites- communion -spoon debate.

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communion practice blasphemous because ‘Holy Communion was the medicine of immortality and the antidote to dying.’54 Some members of the Greek Orthodox faith in nations outside Greece, including parts of Australia, followed this ruling. With the Australian Medical Association advising the practice was ‘ill-considered and unscientific,’ Archbishop Makarios of Australia suspended public masses.55 Other Christian denominations ceased using communal vessels for communion wine using bread or wafers as the communion host. Adapting the eucharist to comply with health orders was divisive for Christians. In England, the Anglican Synod would not approve use of small single paper cups for communicants in place of the communal chalice claiming it was contrary to the Sacrament Act 1547.56 Six barristers challenged the Synod’s ruling. One ground was that there was ‘no prohibition in the Act on the use of individual cups to distribute communion, because the Act is entirely silent on the question of the methods for delivering and ministering communion.’57 Failure to envision something is not the same as legally prohibiting it. By contrast, from the late 19th Century, Presbyterians, Baptists, and other protestant denominations, adopted individual glasses for communion to limit the spread of communicable diseases which at the time included diphtheria and tuberculosis. Common to defiers was the belief that God is stronger than the virus and would protect faithful believers. Reassured by this, some continued to attend mosques, temples and churches. The result was clusters of COVID-1958 in religious communities. One Louisiana paster charged with violating the governor’s lockdown orders claimed he did so because he had a ‘mandate from God to assemble’ and would continue regardless to gather each Sunday.59 Convictions 54 55 56 57

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Becatoros above. Makarios Griniezakis, “Encyclical from his Eminence Archbishop Makarios Regarding the COVID-19,” Greek Orthodox Archdiocese, March 16, 2020 http://www.greekorthodox.org .au/?p=21755. Sacrament Act 1547 Legal Advisory Commission of the General Synod of the Anglican Church. “Opinion on the ‘Legality of the use of individual cups for communion wine in the Church of England,” Thinking Anglicans, August 12, 2020, http://www.thinkinganglicans.org.uk /wp-content/uploads/2020/08/Holy-Communion-Opinion-on-individual-cups-12.8.2020. pdf. For example, members of the Slavic Missionary church in Sacramento, Stephanie Becker, “At least 70 people infected with coronavirus linked to a single Northern Californian church,” Mercury News, April 5, 2020, https://www.mercurynews.com/2020/04/05 /at-least-70-people-infected. Daniel Burke, “Coronavirus: a second paster charged for ignoring the lockdown,” The Mercury News, March 31, 2020, https://www.mercurynews.com/2020/03/31/coronavirus -a-second-pastor-charged-for-ignoring-lockdown.

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and fines for unlawful assembly and violating health emergency stay-at-home orders occurred in pockets of the United States. In his defence, a pastor in Florida argued that in difficult times of isolation, religion is needed more than ever, elevating it as essential: ‘These (executive) orders try to justify unequal application based upon the definition of ‘essential’ services. By what authority does the government declare the church non-essential?’60 It was not just pockets of American Christians. Sokol writes of Haredi Jews who continued to gather reassured by Rabbis that the ‘Torah protects us and saves us.’61 Stern explored the factors as to why ultra-conservative Jews in New York62 initially defied the stay-at-home orders. He found ‘illiberal’ religious communities, shared several key features including: a hierarchical governance structure which obligates members to obey their religious leaders; members isolate from mainstream society socially and spatially; have large families; communal gatherings the keystone of religious practice; and have an inherent distrust of the liberal secular state.63 When religious communities were outed in the media as responsible for large-scale transmission of the virus, criticism turned to hostility.64 In India, Hindus believing that bathing in the river Ganges during the Kumbh festival absolves sins and brings salvation, led hundreds of thousands of Hindus (in total 4.8 million) to disregard India’s COVID-19 protocols by ­bathing communally at a time when India (mid-2021) had the world’s highest overall case numbers.65 Distrust of the secular state and suspicion of ulterior motives also gave rise to defiance. This was evident in a letter signed by senior Roman Catholic priests including two cardinals that the contagiousness of the coronavirus was ­overstated by secular authorities and warned that ‘centuries of Christian civilization could be erased under the pretext of a virus’ and an ‘odious technological 60

Daniel Burke, “Police arrest Florida pastor for holding church services despite stay-athome order,” CNN, March 30, 2020, https://edition.cnn.com/2020/03/30/us/florida-pas tor-arrested-river-church/index.html. 61 Sam Sikol, “We’re not scared’: Some Haredi Orthodox Jews in Israel are ignoring Coronavirus Social Distancing Rules,” Times Of Israel, March 19, 2020, https://www.timesofisrael .com/were-not-scared-some-ultra-orthodox-jews-in-israel-are-ignoring-virus-rules. 62 Shai Stern, “A World of Their Own: Illiberal Religious Communities Struggle To Comply With COVID-19 Public Health Regulations Vanderbilt Journal of Transnational Law, Bar Ilan University Faculty of Law Research Paper No. 20-11, 2020, forthcoming, http://dx.doi .org/10.2139/ssrn.3637335. 63 Ibid. 64 Discussed later under Part IV Stigmatising Minority Religions. 65 Neha Arora and Anushree Fadnavis, “Superspreader event erupts as devout Hindus throng Indian festival,” Reuters, April 14, 2021, https://www.reuters.com/world/india /super-spreader-erupts-devout-hindus-throng-indian-festival-2021-04-14.

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tyranny’ established in its place.66 The letter asserted that the pandemic was exploited to restrict basic rights ‘disproportionately and unjustifiably.’67 These claims were rejected by the German Bishops’ Conference’s with the Vicar of Essen writing, that he was ‘simply speechless at what was being published there in the name of the Church and Christianity: crude conspiracy theories without facts or evidence, combined with aggressive right-wing populist rhetoric that sounds alarming.’68 The Conference found the state restrictions throughout Europe and the temporary cancelation of church services, were ‘sensible and responsible.’69 Lastly, defiance was seen in the holding services secretly, or ‘underground’, as had occurred in earlier times of sectarian Christian persecution. Priests in Ireland held secret masses in conscientious objection70 and conducted covert services in barns on remote farms in England, Belgium and France. Worshippers believed that governments lacked authority ‘to tell the church of Jesus Christ that it can’t gather for worship. They have provided no evidence, they just classed us as non-essential. But we believe worship is the most essential thing in life.’71 4.4 Litigation I adhere to the view that the Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States…. but the Constitution also entrusts the protection of the people’s rights to the Judiciary. Chief Justice Roberts, Supreme Court, United States of America. 72

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Timothy Jones, “Germany: Catholic chiefs reject cardinals’ coronavirus ‘conspiracy theories,” DW, May 30, 2020, https://www.dw.com/en/germany-catholic-chiefs-reject-cardi nals-coronavirus-conspiracy-theories/a-53384164. 67 Ibid. 68 Ibid. 69 Ibid. 70 Colin Brennan, “Irish priest continuing to say Mass despite Gardai Telling him not to,” Irish Mirror, November 20, 2020, https://www.irishmirror.ie/news/irish-news/health -news/irish-priest-continuing-say-mass-23040724. 71 Harriet Sherwood “Let’s disobey: Churches defy lockdown with Secret meetings,” The Guardian, November 22, 2020, https://www.theguardian.com/world/2020/nov/14/com munal-worship-criminalised-under-lockdown-church-leaders-say. 72 South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020).

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In secular states, the role of the judiciary is essential for the rule of law. The judicial arm of government ensures legislatures and executives do not exceed their lawful powers. During the COVID-19 pandemic, executive governments had unprecedented authority and extraordinary control over the lives of their citizens making it axiomatic that judicial review of executive orders would occur. In the United States, the First Amendment’s ‘Free Exercise’ and ‘Establishment’ Clauses mean government may not act directly in favour of one religion over another, nor inhibit Americans’ right to pursue their religious beliefs. Courts from the District to Supreme Court level had to determine whether specific executive and legislative restrictions on worship breached constitutional protections. Many cases arose in the context that other activities (sporting events, concerts, protest marches) with arguably similar risks were permitted. The legal issue was whether executive orders failed the test of neutrality and general applicability of the law as laid down in Employment Division v Smith.73 California’s Governor Newsom had supported ‘Black Lives Matter’ protests during the time of state-wide stay-at-home orders on the ground he was protecting protesters’ freedom of expression. By banning, then restricting, people of faith from worshiping within churches, mosques, temples, and synagogues, raised the question whether his orders breached the equally protected ­freedom of religion. In South Bay United Pentecostal Church v Newsom74 the Supreme Court rejected 5-4 injunctive relief sought by the Pentecostal church against ­Governor Newsom for a California state-wide order that allowed shops, manufacturers, restaurants, and schools to re-open, but did not permit churches to do so. Some other secular gatherings, however, including lectures, concerts, and ­theatrical performances had more restrictions. By the time of the appellate hearing by the Supreme Court, twenty-five percent of church building capacity was allowed. Chief Justice Roberts concluded that the state was treating worship as it treated comparable other community risks because the businesses California allowed to open did not have people congregating in ‘large groups nor in close proximity for extended periods.’75 The Chief Justice deferred to the executive who in times of ‘medical and scientific uncertainties’ should not be second-guessed by an ‘unelected federal judiciary’ lacking the background and expertise to assess public health nor by judges not accountable to the people.76 Justice 73 74 75 76

494 U.S. 872 (1990). 140 S.Ct. 1613 (2020). Ibid, Roberts CJ with Kagan, Breyer, and Sotomayor JJ concurring. Ibid, 1613.

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Kavanaugh in dissent reasoned that ‘California’s 25 percent occupancy cap on religious worship services discriminates against religion in violation of the First Amendment.’77 California needed, he opined a compelling justification for distinguishing between religious services and the litany of other secular businesses that were not subject to an occupancy cap, which, he asserted, it failed to do.78 The decision and reasoning in South Bay set a precedent. Blackman notes that Chief Justice Roberts influential concurring opinion became a ‘superprecedent’ with more than one hundred judges relying on his opinion in cases across the ‘entire spectrum of constitutional and statutory challenges to pandemic policies.’79 A subsequent case on disparate treatment, Calvary Chapel Dayton Valley v Sisolak80 was also heard in the Supreme Court. In Nevada, Governor Sisolak limited indoor worship services to ‘no more than fifty persons’ but allowed a variety of secular gatherings at half their operating capacity, meaning that they could exceed, and in some cases far exceed, the 50-person limit imposed on places of worship. Calvary Chapel sought an injunction to allow services, with a plan for distancing and masks as were permitted in casinos, breweries, bowling allies and gyms. The Supreme Court (5:4) again denied relief. Written reasons were not given for why the majority held the differential rules constitutional, but the dissenting judgments suggest factors of precedent and economic imperatives. In dissent, Justice Alito opined that a state should not impose strict limits on places of worship and looser limits on restaurants, bars, casinos, and gyms, at least without sufficient justification for the differential treatment of religion.81 Justice Gorsuch acknowledged the ‘world we inhabit today, with a pandemic upon us, poses unusual challenges… but there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.’82 Justice Kavanagh distinguished the Calvary case from South Bay as factually different as in Nevada it ‘involves bars, casinos, and gyms’83 where people congregate for lengthy periods. Allowing these but denying religious service he argued ‘defies common sense’ as the State cannot ‘plausibly maintain that large secular businesses are categorically safer than religious services.’84 He 77 78 79 80 81 82 83 84

In dissent with Thomas and Gorsuch JJ. Ibid, 1614–15. Josh Blackman, ”The Essential Free Exercise Clause” Harvard Journal of Law and Public Policy 44, no. 4 (2020): 645. https://dx.doi.org/10.2139/ssrn.3707739. 591 U. S. (2020). Ibid, 4. Ibid, 1. Ibid, 11. Ibid, 9.

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also rejected the economic imperative argument that swayed the majority claiming there was no precedent for discriminating against religion simply because a ‘religious organization does not generate the economic benefits.’ In doing so, he concluded the majority found ‘moneymaking is more important than faith during the pandemic’ thereby devaluing religion ‘in violation of the Constitution.’85 In 2021, the tide turned. South Bay United Pentecostal Church was part of second case86 and this time the majority (6:3) of the Supreme Court held that California had openly imposed more stringent regulations on religious institutions than on other businesses in violation of the Constitution. California argued, Gorsuch J opined, that because ‘religious exercises involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing,’87 that the risk of transmitting COVID–19 exceeded that of other permitted secular activities. Now, in the majority, Justice Gorsuch rejected each assertion noting that: the State presumes that worship inherently involves a large number of people. Never mind that scores might pack into train stations or wait in long checkout lines in the businesses the State allows to remain open,” adding that California is not as concerned with the “close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods.88 Although eight of the justices held the ban on singing and chanting was lawful, Justice Gorsuch dissented: The singing ban is not what it first appears. It seems California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful… if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.89 85 Ibid. 86 South Bay United Pentecostal Church v. Newsom 592 U. S. (2021). 87 Ibid, 5. 88 Ibid, 6. 89 Ibid, 6.

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Justices Kagan, Breyer, and Sotomayor dissented and would not have granted relief. Justice Kagan argued that the majority’s order defied Court’s caselaw, exceeded its judicial role, and risked exacerbating the COVID-19 pandemic.90 Justice Kagan distinguished workplaces from churches, mosques and synagogues because workplaces have specific COVID-19 protocols for testing employees multiple times a week which ‘could not feasibly be applied to the congregation of a house of worship.’91 The majority view, she asserted ‘weakened efforts to tackle the public health emergency and contravened the reasons why the Constitution entrusted people’s safety and health to elected state officials, not federal courts.’92 These cases show that when governments ban or restrict religious activity while exempting and permitting arguably comparable secular activities with similar potential for harm, a strong justification is needed. The trend across secular states has been to value economic imperatives over spiritual needs. As the health advice is rarely made public, executive decisions prioritising economic factors appear arbitrary. Whilst no cases on this have been heard in the High Court of Australia, the arbitrariness by which exemptions to orders granted to public protests, sporting events and concerts rankled people of faith. The Bishop of Southwark, London, stressed that, ‘The church is not a branch of the leisure or hospitality industries with a tap that can be turned on and off by politicians at will. The right to freedom of religion is enshrined in Magna Carta and it is of the very essence of our common life that the liberties and freedoms of the people of this land extend to public worship.’93 In England, the High Court heard a case on the ordered closure of mosques which prevented Muslims attending obligatory communal Friday prayers (Jumu’ah). In R (on the application of Hussain) v Secretary for Health,94 it was submitted that Friday prayers came within the right to manifest ‘religious belief in worship, teaching, practice and observance’ guaranteed under Article 9 of the European Convention on Human Rights. Justice Swift refused an application for interim relief95 brought on behalf of the Bradford Mosque as the 90 91 92 93

Ibid, 10. Ibid, 13. Ibid, 15. Mark Michael, “English Clergy Protest a 4-week ban,” The Living Church, November 5, 2020, https://livingchurch.org/2020/11/05/english-clergy-protest-4-week-worship-ban. 94 [2020] EWHC 1392 (Admin). 95 Interim relief would suspend enforcement of the Regulation and allow Muslims to attend Jumu’ah prayer, but the claimant needed to establish a real prospect of obtaining a ­permanent injunction were the case heard at a substantive trial.

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regulation96 applied to all places of worship and all religious denominations [at 6]; that Jumu’ah prayers are only one aspect of religious observance [at 12] noting the claimant’s stance differed from that of the British Board of Imams and Scholars. Acknowledging there can be legitimate differences, Justice Swift held it was relevant that the claimant’s view differed from the majority [at 17]. The proportionality argument was also submitted. The claimant argued that a range of comparable activities were permitted at sports centres, recreational parks, and garden centres none of which were as essential as communal prayers for Muslims. As in South Bay, Justice Swift likewise held that the risk of viral transmission in a closed place of worship (even with social distancing rules) was higher than a transitory encounter outdoors. He framed the issue as: [N]ot whether it is more important, for example, to go to a garden centre than to go to communal prayer; the issue is not whether activities that are now permitted and those that are prohibited are moral equivalents. Rather, the question is as to the activities that can be permitted consistent with effective measures to reduce the spread and transmission of the Covid-19 virus; that so far as they interfere with Convention rights, strike a fair balance between that inference and the general interest. [at 22] In denying relief, he concluded that had relief been granted, it would apply to not just the Muslims at the Bradford Mosque but to all obligatory acts of ­worship and at all places of worship. This posed too great a risk. [at 27] 5

Stigmatising Minority Religions Since the emergence of COVID-19 we have seen instances of public ­stigmatization among specific populations, and the rise of harmful ­stereotypes.97 World Health Organization Situation Report

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Health Protection (Coronavirus Restrictions) (England) Regulations SI202/350. World Health Organization, Situation Report February 2020. https://www.who.int /docs/default-source/coronaviruse/situation-reports/20200224-sitrep-35-covid-19.pdf? sfvrsn=1ac4218d_2. The Report noted that, stigmatization could potentially contribute to more severe health problems, ongoing transmission, and difficulties controlling infectious diseases.

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In medieval times, Jews were scapegoated and persecuted for causing and spreading the plague in Europe. Today, there were similar instances of minority faiths being blamed for spreading coronavirus and singled out by the media and governments. Two instances from the secular republics of India and South Korea highlight this. 5.1 The Shincheonji Church of Jesus Christ (SCJ) in South Korea Article 20 of Korea’s Constitution guarantees freedom of religion for all ­citizens, separates state and religion, and proscribes discrimination based on religious belief. Korea has ratified seven international covenants on human rights, including ICCPR, with a Constitutional Court to protect and uphold c­ itizens’ rights. Buddhism, and Christianity (largely Protestantism) comprise the two dominant faiths. New-age churches have risen in popularity and thus compete with established churches and temples for membership. The Shincheonji Church of Jesus Christ (SCJ) is one ‘new-age’ church regarded with suspicion by more mainstream believers98 dues to its proselytising, secrecy,99 distinctive tenets100 and believers’ devotion to founder, Lee Man-hee.101 Early 2020, an asymptomatic woman, infected with COVID-19 attended a SCJ ceremony in Daegu with 1000 other worshippers. Later identified as ‘Patient 31’, she unintentionally spread the virus to at least 300 other attendees. It represented 50% of the cases in Korea at the time.102 Within a month, the Korean Centre of Disease Control (KCDC) confirmed 4,482 infections or 62% of all cases in Korea were associated with SCJ.103 Possibly because of its perceived secrecy, SCJ was alleged to have obfuscated in providing its membership lists to the KCDC making contact tracing difficult. President Moon Jae-in called for examination and testing of all members of SCJ, regardless of whether they had been at these events or in contact with COVID-19 infected persons.104 SCJ had to provide Resident Registration and personal information for each 98

Ciaran Burke, “Abuses Non Tollit Usum? Korea’s Legal Response to Coronavirus and the Shincheonji Church of Jesus,” Journal of CESNUR 4, no. 5 (October 2020): 74. 99 Ciaran Burke, “Is Religious Intolerance Good for Your Health?” Journal of Law and Religion 8 (December 2020): 201, 209. 100 These include that founder Lee Man-Hee is a descendant from ancient kings of Korea and an angel sent by Jesus to interpret symbols and secrets codes in the Bible’s Book of Revelation. 101 Sang-Hun Choe, “He blames evil for South Korea’s Coronavirus Surge, officials blame him,” The New York Times, March 2, 2020, https://www.nytimes.com/2020/03/02/world /asia/coronavirus-south-korea-shincheonji.html. 102 Burke, “Abuses,” 74. 103 Ibid, 75. 104 Ibid.

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SCJ member, including those living abroad. As this policy was not applied to other groups who were sources of outbreaks in the community, including the Wangsung Presbyterian Church and attendees at the Gwangneuksa Temple,105 it was prima facie discriminatory. KCDC recommended preventive measures for other religious groups with COVID-19 infections but did not single them out with separate columns in press releases. Patient 31 was labelled a ‘super spreader.’ Burke writes that repeated press releases explicitly linking the SCJ to the outbreak in statistical terms contributed to ‘a sense of public paranoia directed at what was already a marginalized and unpopular religious community.’106 In July 2020 SCJ leader Lee Man-hee was arrested and charged with submitting incomplete and untrue lists of SCJ to the government in breach of the Infectious Diseases Control and Prevention Act. SCJ’s defence was that they did in fact did cooperate with the authorities and that registration numbers for an epidemiological investigation violated Korea’s Personal Information Protection Act.107 Lee was found innocent of these charges but convicted on a second charge of embezzlement.108 Lee apologised and called for an end to ‘stigmatisation, hatred and slander of his followers.’109 The arrests of SCJ members and lawsuits brought against the church by the Governor of Gyeonggi Province and the Mayor of Seoul, furthered stigmatisation. Since the beginning of the pandemic,110 there are reports of over 5,500 human rights violations against SCJ members ranging from raids without warrant of SCJ premises, verbal abuse, hate speech, work discrimination, online- bullying, public shaming, and summary dismissal from employment.111 The differential treatment metered out to the SCJ by KCDC and negative labelling from the nation’s political leaders allowed one, ‘unpopular’ minority to shoulder the blame for rising numbers of coronavirus infections in the country. SCJ was the perfect scapegoat and the human rights protection appear wanting. 105 Ibid, 76. 106 Burke, “Is Religious Intolerance Good for Your Health?”, 211. 107 “Trial of 90-Year-Old Korean Church Leader Garners Nearly 30,000 Attendance Applications,” 24-7 Press Release November 20, 2020, https://www.24-7pressrelease.com /press-release/476918/trial-of-90-year-old-korean-church-leader-garners-nearly-30000 -attendance-applications. 108 Sentenced to three years in prison and four years of probation. An appeal against conviction was allowed July 2021. 109 Hyonhee Shin and Ju-min Park, “Founder of South Korea Church at Centre of Virus ­Outbreak regrets great calamity,” Reuters, March 2, 2020, https://reut.rs/3gtDtXu. 110 24-7 Press Release, above. 111 Burke, “Is Religious Intolerance Good For Your Health?,” 222.

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5.2 Tablighi Jammat, India112 India’s Constitution states India is a secular nation with Article 25 enshrining freedom and equality in religious belief. Indians can ‘freely profess, practice, and propagate religion…subject to public order, morality and health’. India has ratified six international human rights covenants including the ICCPR. The pandemic arrived in India at a time of heightened sectarian tensionsexacerbated by the Citizenship (Amendment) Act (2019) which excludes Muslim ‘irregular’ migrants from citizenship grants afforded to non-Muslims. Tablighi Jammat (Society for Spreading Faith) is a Muslim minority sect and like SJC has been regarded with suspicion by some Indian Hindus, especially for its missionary practices. Its members are readily identifiable by their grooming, dress and mannerisms.113 In March 2020, a gathering of 3000 Tablighi Jammat at Delhi’s Nizamuddin resulted in over 400 attendees contracting COVID-19. As with SJC this was deemed a superspreading event.114 The Ministry of Health condemned the event115 without highlighting that it took place three days before the government’s full lockdown. Nor was it mentioned that Hindu temples also had similarly large non-distanced gatherings in the same week.116 As in Korea, the Indian government singled out the sect with a dedicated column in its daily COVID-19 briefings.117 Criminal charges were brought against the sect’s Indian leader, Maulana Saad, for breaches of the Epidemic Diseases Act 1897 (for not observing social distancing orders) and for manslaughter and negligence for the COVID-19 deaths of followers. At the time of writing a trial of Saad has not occurred. 112 113 114

115 116

117

See: Bhuiyan Chapter 12 for more detailed coverage. Ateeq Abdul Rauf and Ash Prasad, “Temporal spaces of egalitarianism: The ethical negation of economic inequality in an ephemeral religious organization” Journal of Business Ethics 162, no. 3 (2020): 699–718. Joanna Slater, Niha Masih, and Shams Irfan, “India Confronts its First Coronavirus ‘Super-Spreader’—a Muslim Missionary Group with More than 400 Members Infected,” Washington Post, April 2, 2020, https://www.washingtonpost.com/world/asia_pacific /india-coronavirus-tablighi-jamaat-delhi/2020/04/02/abdc5af0-7386-11ea-ad9b -254ec99993bc_story. Sonia Sarkir,” Religious Discrimination is hindering covid-19 Response” BMJ, June 19, 2020, http://dx.doi.org/10.1136/bmj.m2280. It is reported in The Wire (not officially confirmed) that Somnath temple had 5,000 to 6,000 people present, the Pavagadh temple saw 10,000 people visit, and Khodaldham saw 14,000 devotees. See, “Despite its Guidelines Against ‘Stigmatisation’, Govt Hypes Jamaat Role in COVID-19 Spread,” The Wire, April 18, 2020, https://thewire.in/government/health -ministry-covid-19-tablighi-jamaat 18 April 2020. Ajnesh Prasad, “The organization of ideological discourse in times of unexpected crisis: Explaining how COVID-19 is exploited by populist leaders,” Leadership 16, no. 3 (2020): 294–302. Accessed at https://journals.sagepub.com/doi/full/10.1177/1742715020926783.

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Prime Minister Modi tweeted that ‘COVID-19 does not see race, religion, c­ olour, caste, creed, language, or border before striking. Our response and ­conduct thereafter should attach primacy to unity and brotherhood. We are in this together.’ Yet, this sense of brotherhood did not transmit to politicians from his Hindu nationalist Bharatiya Janata Party (BJP) who laid blame at Tablighi Jammat claiming the group’s aim was ‘to infect as many people with coronavirus and kill them.’118 Rajeev Bindal, the Himachal Pradesh BJP chief, asserted that, ‘the Centre and state governments are leaving no stone unturned in the decisive fight against COVID-19 but some people, including Tablighi Jamaat members are moving like human bombs to thwart their efforts.’119 The notion of deliberate spreading of the disease acquired wide currency among Hindus as hashtags like #CoronaJihad, #CrushTablighiSpitters, and #TablighiJamatVirus circulated on social media. Doctors in India alleged that contact tracing of people linked with the Tablighi Jamaat was prioritised over tracing in other cases.120 Unlike Korea, where the hostility remained focused on SJC without stereotyping all Christians, in India distrust of Tablighi Jammat was generalised to encompass all Muslims. Some government hospitals, for example in the state of Gujarat, segregated Muslim patients with COVID-19 from Hindus, claiming it is for both sides’ safety.121 6 Conclusion Pandemics occur and recur. Each one challenges human understanding of what we can control, and the forces beyond our control. The COVID-19 pandemic has had three distinctive consequences for law and religion in secular states. First, is that today’s understanding of pandemics is informed by science and the rationality of its empirical method. Explanations of COVID-19 which draw on divine or supernatural causation to warn or punish earthly transgressions have little currency. Science may be supreme, but this does not mean that secular governments respond to scientific knowledge in uniform 118 119 120 121

Kapil Mishra cited in Ciaran Burke, “Abuses Non Tollit Usum? Korea’s Legal Response to Coronavirus and the Shincheonji Church of Jesus,” Journal of CESNUR 4, no. 5 (October 2020): 74. Prasad above. Sonia Sarkir above, citing a doctor retaining anonymity. Scroll Staff, ‘Covid-19: Gujarat hospital makes separate wards for Hindu, Muslim patients,” Scroll, 15 April, 2020, https://scroll.in/latest/959274/covid-19-separate-wards-for-hindu -and-muslim-patients-made-in-ahmedabad-hospital.

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ways. Variation across nations, and states within federations, show that whilst restrictions, lockdowns, vaccination programmes are always claimed to be based ‘on the science’ or ‘health advice,’ political agendas and priorities are at play. A ­government’s attitude to religion determines whether religious-based activities will be essential vis-à-vis commercial gatherings, sporting events, community transportation, protests, entertainment venues, and educational institutions. Judges in a series of cases brought to the US Supreme Court drew on their own values on the importance, or not, of religion in a democratic ­liberal nation. When determining the proportionality of executive orders, the court divided on religions’ essentiality and exceptionalism. Second, whilst legal protection of religious freedom is a foundational liberty guaranteed by all secular states, the severity of this disease coupled with its rapid borderless transmission gave rise to global consensus, supported by international law, that extraordinary measures were warranted. Religious worship and communal gatherings, core components of religious freedom, were rarely exempted. COVID-19 re-enforces that physical, not spiritual, health is the core value of the 21st century. The leaders of the main religions acquiesced to a once unthinkable de-prioritisation of religious liberties and set about adapting religious practices and endorsing government orders for the greater good: from isolation to vaccinations. They drew on holy texts in support of the sanctity of human life over rituals and ceremony. By doing so, faith communities became mostly allies, not opponents, of governments. However, the third consequence was that for some people of faith, compromise through suspending rituals of worship and communal prayer - mass, kirtan, jummah, - was untenable. Communal activities, from sharing the communion spoon in Greece to bathing en masse in the Ganges, continued in defiance of government orders. As well as distrust of secular states’ motivation, a recurring justification was that God is stronger than the virus and will grant protection to dutiful believers. At times, the righteousness of one’s belief led to blaming others for spreading the virus. Deep seated suspicions aggravated animosities causing scapegoating of religious minorities as seen with Tablighi Jammat (India) and Shincheonji Church of Jesus Christ (South Korea). With courts the arbiters on whether states had exceeded their powers in limiting religious practice, legal challenges were brought on the constitutionality and legality of restrictive governments orders. Most were run against states classifying religious practices, services and gatherings as either unessential, or less essential, than similar secular events. The central argument was that during the pandemic the soul should be accorded more respect than money-making. At the time of writing, the pandemic continues. New variants have been identified. Whilst contestations on appropriate government policies to defeat

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COVID-19 are an on-going part of the political landscape, most faith communities have come to accept the incursions on religious liberties wrought by this pandemic. An on-going concern is that post- COVID-19 there may be longerterm impacts on religious adherence, the practice of religious rites, and on the freedom itself in secular nations post-COVID-19. Bibliography Books Ferrari, Silvio, Mark Hill, Jamal Arif, and Rossella Bottini, eds. Handbook on Freedom of Religion of Belief. London: Routledge, 2020. Cnaan, Ram. The Newer Deal: Social Work and Religion in Partnership. New York: ­Columbia University Press, 1999. Schreiber, Werner, and Friedrich Mathys. Infectio. Basle: F Hoffman-La Roche, 1988.

Scripture Hadith, narrated by Abdullah ibn Mas’ud Sunan Ibn Mājah 3438. Holy Bible, King James Version Holy Quran, Yusuf Ali Translation.



Journal Articles

Ahmad, Zohaib and Arzoo Ahad. “COVID-19: a Study of Islamic and Scientific Perspectives.” Theology and Science 19, no. 1 (2021): 32–41. https://www.tandfonline.com /doi/full/10.1080/14746700.2020.1825192. Benjamin, Tammi and Marc Mangel. “The Ten Plagues and Statistical Science as a Way of Knowing.” Judaism 48 no. 1 (1999): 17–34. Blackman, Josh. “The Essential Free Exercise Clause.” Harvard Journal of Law and Public Policy 44, no. 4 (2020): 637–761. https://dx.doi.org/10.2139/ssrn.3707739. Burke, Ciaran. “Abuses Non Tollit Usum? Korea’s Legal Response to Coronavirus and the Shincheonji Church of Jesus.” Journal of CESNUR 4, no. 5 (October 2020): 64–85. Burke, Ciaran. “Is Religious Intolerance Good for Your Health?.” Journal of Law and ­Religion 8 (December 2020): 201–227. Conklin, Michael. “The Most Demanding Test Known to Constitutional Law.” ­Washburn Law Journal 60 (2020): 1–61.

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Dein, Simon, Kate Loewenthal, Christopher Lewis and Kenneth Pargament, “COVID-19, mental health and religions: an agenda for future research,” Mental Health, ­Religion & Culture 23, no. 1 (2020): 1–9. https://www.tandfonline.com/doi/full/10.1080/13674 676.2020.1768725. Hill, Michael. “Coronavirus and the Curtailment of Religious Liberty.” Laws 9 (2020): 77 - 98. doi:10.3390/laws90400027. Kutty, Johnson. “Reading the Fourth Gospel in the COVID-19 Pandemic Context.” HTS Theological Studies 77, no. 4 (2021): 1–9. Mazurkiewicz, Piotr. “Religious Freedom in the Time of the Pandemic,” Religions 12 (2021): 103–124. http://doi.org/10.3390/rel12020103. Phillips, Howard. “’17, ’18, ’19: religion and science in three pandemics, 1817, 1918, and 2019.” Journal of Global History 15, no. 3 (2020): 434- 443. https://doi.org/10.1017 /S1740022820000315. Prasad, Ajnesh. “The organization of ideological discourse in times of unexpected crisis: Explaining how COVID-19 is exploited by populist leaders.” Leadership 16, no. 3 (2020): 294–302, https://journals.sagepub.com/doi/full/10.1177/1742715020926783. Rauf, Ateeq Abdul and Ash Prasad. “Temporal spaces of egalitarianism: The ethical negation of economic inequality in an ephemeral religious organization.” Journal of Business Ethics 162, no. 3 (2020): 699–718. Reichenbach, Bruce. “Karma, Causation and Divine Intervention.” Philosophy East and West 39, no. 2 (1989): 135 -149. https://doi.org/10.2307/1399374. Smith, Sue Erica. “Considering Karma: Reviving Student Agency Amid Pandemic ­Disempowerment,” International Journal of Multidisciplinary Perspectives in Higher Education 5, no. 1 (2021): 156 -159. Stern, Shai. “A World of Their Own: Illiberal Religious Communities Struggle To ­Comply With COVID-19 Public Health Regulations Vanderbilt Journal of Transnational Law, Bar Ilan University Faculty of Law Research Paper No. 20-11, 2020, forthcoming, http://dx.doi.org/10.2139/ssrn.3637335.



News or Magazine Articles

Anon, “Despite its Guidelines Against ‘Stigmatisation’, Govt Hypes Jamaat Role in COVID-19 Spread.” The Wire, April 18, 2020. https://thewire.in/government/health -ministry-covid-19-tablighi-jamaat 18 April 2020. Anon, ‘Covid-19: Gujarat hospital makes separate wards for Hindu, Muslim patients,” Scroll, April 15, 2020. https://scroll.in/latest/959274/covid-19-separate-wards-for -hindu-and-muslim-patients-made-in-ahmedabad-hospital. Anon, “Trial of 90-Year-Old Korean Church Leader Garners Nearly 30,000 Attendance Applications.” 24-7 Press Release November 20, 2020, https://www.24-7pressrelease

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.com/press-release/476918/trial-of-90-year-old-korean-church-leader-garners -nearly-30000-attendance-applications. Arora, Neha and Anushree Fadnavis. “Superspreader event erupts as devout Hindus throng Indian festival.” Reuters, April 14, 2021. https://www.reuters.com/world /india/super-spreader-erupts-devout-hindus-throng-indian-festival-2021-04-14. Athens Bureau, “Archbishop Ieronymos II: Being Vaccinated is an Act of Christian Solidarity.” Greek City Times, April 15, 2021. https://greekcitytimes.com/2021/04/15 /archbishop-ieronymos-vaccination. Bannister, Craig. “It is because sin is in the world,” CNS News, April 6, 2020. https:// www.cnsnews.com/blog/craig-bannister/rev-franklin-graham-god-didnt-plan -coronavirus-its-because-sin-thats-world. Becatoros, Elena and Costa Kantouris. “Communion Unchanged in Greek Orthodox Church despite Virus.” Associated Press, May 30, 2020. http//apnews.com/article /athens-virus-outbreak-ap-top-news-international-news-lifestyle-42165e482f3fb b126a38e39fdf5c94f2. Becker, Stephanie. “At least 70 people infected with coronavirus linked to a single Northern Californian church.” Mercury News, April 5, 2020. https://www.mercu rynews.com/2020/04/05/at-least-70-people-infected. Brennan, Colin. “Irish priest continuing to say Mass despite Gardai Telling him not to.” Irish Mirror, November 20, 2020. https://www.irishmirror.ie/news/irish-news /health-news/irish-priest-continuing-say-mass-23040724. Burke, Daniel. “Coronavirus: a second paster charged for ignoring the lockdown.” The Mercury News, March 31, 2020. https://www.mercurynews.com/2020/03/31/corona virus-a-second-pastor-charged-for-ignoring-lockdown. Burke, Daniel. “Police arrest Florida pastor for holding church services despite stay-athome order,” CNN, March 30, 2020. https://edition.cnn.com/2020/03/30/us/florida -pastor-arrested-river-church/index.html. Choe, Sang-Hun. “He blames evil for South Korea’s Coronavirus Surge, officials blame him.” The New York Times, March 2, 2020. https://www.nytimes.com/2020/03/02 /world/asia/coronavirus-south-korea-shincheonji.html. Davalos, Jackie. “Venture Funders Flock to Religious Apps as Churches Go Online.” Bloomberg News, October 10, 2020. https://www.bloomberg.com/news/arti cles/2020-10-11/venture-funders-flock-to-religious-apps-as-churches-go-online. Davidson, Helen. “First Covid-19 Case Happened in November, China Government Records Show” The Guardian, March 13, 2020. https://perma.cc/B3MB-VF7E. Emmanouildou, Lydia. “In Greece a clergyman’s death reignites communion spoon debate.” The World, November 30, 2020. www.pri.org/stories/2020-11-30/greece -clergyman-s-death-reignites- communion-spoon debate. Feldman, Adam. “What to know about Pandemics.” Medical News Today, March 30, 2020. https://www.medicalnewstoday.com/articles/148945.

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Iafolla, Robert. “Can Workers Reject the J&J Shot? Religious Objections Explained.” Bloomberg Law, March 11, 2021. https://news.bloomberglaw.com/daily-labor-report /can-workers-reject-the-j-j-shot-religious-objections-explained. Jones, Timothy. “Germany: Catholic chiefs reject cardinals’ coronavirus ‘conspiracy theories.” DW, 30 May, 2020, https://www.dw.com/en/germany-catholic-chiefsreject-cardinals-coronavirus-conspiracy-theories/a-53384164. Khadi, Sadakat. “For Muslims wary of the Covid vaccine there is every reason not to be.” The Guardian, 18 February, 2021. https://www.theguardian.com/commentisfree/2021/feb/18/muslims-wary-covid-vaccine-religious-reason. Michael, Mark. “English Clergy Protest a 4-week ban.” The Living Church, November 5, 2020. https://livingchurch.org/2020/11/05/english-clergy-protest-4-week-­worshipban. NBC News, “Priest puts pictures of parishioners in pews to celebrate Mass.” NBC News, March 21, 2020. https:/www.nbcnews.com/video/priest-puts-pictures-of-parishioners-in-pews-to-celebrate-mass-81034821648. “Opinion on the ‘Legality of the use of individual cups for communion wine in the Church of England’.” Thinking Anglicans, August 12, 2020. http://www.thinkinganglicans.org.uk/wp-content/uploads/2020/08/Holy-Communion-Opinion-on-­ individual-cups-12.8.2020.pdf. Qadri, Tahrir. “Faith Leaders Spread the Word: Get Vaccinated.” WebMD, January 6, 2021, https://www.webmd.com/vaccines/covid-19-vaccine/news/20210126/faithleaders-spread-the-word-get-vaccinated. Sarkir, Sonia. “Religious Discrimination is hindering covid-19 Response.” BMJ, June 19, 2020. http://dx.doi.org/10.1136/bmj.m2280. Schilling, Mirjam, Joel Gamble, and Nathan Gamble. “Fear not, sneer not: a healthy ­Christian response to COVID-19.” ABC Religion & Ethics, March 17, 2020. https://www.abc.net.au/religion/coronavirus-a-healthy-christian-response-tocovid-19/12063556. Sherwood, Harriet. “Let’s disobey: Churches defy lockdown with Secret meetings.” The Guardian, November 22, 2020. https://www.theguardian.com/world/2020/nov/14 /communal-worship-criminalised-under-lockdown-church-leaders-say. Shin, Hyonhee and Ju-min Park. “Founder of South Korea Church at Centre of Virus Outbreak regrets great calamity.” Reuters, March 2, 2020. https://reut.rs/3gtDtXu. Sikol, Sam. “We’re not scared’: Some Haredi Orthodox Jews in Israel are ignoring ­Coronavirus Social Distancing Rules.” Times Of Israel, March 19, 2020, https://www .timesofisrael.com/were-not-scared-some-ultra-orthodox-jews-in-israel-are-ignoring-virus-rules. Slater, Joanna, Niha Masih, and Shams Irfan. “India Confronts its First C ­ oronavirus ‘Super-Spreader’—a Muslim Missionary Group with More than 400 Members Infected.” Washington Post, April 2, 2020. https://www.washingtonpost.com/

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world/asia_pacific/india-coronavirus-tablighi-jamaat-delhi/2020/04/02/abdc5af07386-11ea-ad9b-254ec99993bc_story.



Website Content

Commission on Human Rights. Accessed August 20, 2020. https://undocs.org/en/E /CN.4/1985/4. Fatwa of Australian Imams Council. Accessed September 6, 2021. https://www.anic .org.au/wp-content/uploads/2021/02/AFC-Coronavirus-COVID-19-Vaccine-Fatwa .pdf. Funk, Cary and John Gramlich, “10 facts about Americans and coronavirus ­vaccines.” Pew Research, September 20, 2021. https://www.pewresearch.org/facttank/2021/03/23/10-facts-about-americans-and-coronavirus-vaccines. Griniezakis, Makarios. “Encyclical from his Eminence Archbishop Makarios Regarding the COVID-19.” Greek Orthodox Archdiocese, March 16, 2020. http://www.greekorthodox.org.au/?p=21755. Ghebreyesus, Tedros Adhanom, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19.” March 11, 2020. https://perma.cc/87KT-HWR7. Muslim Pro. Accessed July 22, 2021. https://www.muslimpro.com. Pew Research Centre. Accessed December 12, 2021. https://www.pewresearch.org/facttank/2021/11/15/41 Prayer.Com. Accessed July 22, 2021. https://www.pray.com.au. United Nations Human Rights: Office of the High Commissioner, ‘Coronavirus: Human Rights need to be front and Centre,’ 6 March 2020. https://www.ohchr.org/EN /NewsEvents/Pages/DisplayNews.aspx?NewsID=25668&LangID=E. World Health Organization, “Situation Report.” February 2020. https://www.who.int /docs/default-source/coronaviruse/situation-reports/20200224-sitrep-35-covid-19 .pdf?sfvrsn=1ac4218d_2.

Legislation Biosecurity Act 2015 (Cth). Epidemic Diseases Act 1897 (India). Infectious Diseases Control and Prevention Act (ROK). Personal Information Protection Act (ROK). Public Health (Control of Disease) Act 1984 (UK). Sacrament Act 1547 (UK). Health Protection (Coronavirus Restrictions) (England) Regulations SI202/350.

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Constitution Constitution of People’s Republic of China: http://www.npc.gov.cn.

Cases Calvary Chapel Dayton Valley v Sisolak, 591 U. S. (2020). Dolan, Monks and AB v Secretary of State for Health [2020] EWHC 1786 (Admin). Employment Division v Smith 494 U.S. 872 (1990). South Bay United Pentecostal Church v. Newsom, 140 S.Ct. (2020). South Bay United Pentecostal Church v. Newsom 592 U. S. (2021). R (on the application of Hussain) v Secretary for Health, [2020] EWHC 1392 (Admin).



International Instruments

International Covenant on Civil and Political Rights, December 16, 1966. https://www .refworld.org/docid/3ae6b3aa0.html Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, September 28, 1984. E/CN.4/1985/4. https://www .refworld.org/docid/4672bc122.html Universal Declaration on Human Rights, December 10, 1948, 217A (III). https://www .ohchr.org/en/udhr/pages/udhrindex.aspx

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CHAPTER 4

Bans on the Wearing of Burqas, Niqabs and Hijabs, Religious Freedom and the Secular Nature of the State Erica Howard 1 Introduction Witte and Pin’s conclusion to their discussion of religious dress cases in Europe sets out clearly the background against which bans on the wearing of headscarves and face-covering veils in Europe must be examined, when they write: … religious dress … will always generate controversy. Religious apparel pits secularism against religiosity, and often majorities against minorities. It channels the debates about the role and the content of the public sphere, challenges a country’s cultural legacy, and brings to the surface disputes about migrants.1 Bans on face covering veils (niqabs or burqas)2 are proliferating across Europe,3 with an increasing number of European countries now banning the wearing of these veils in some or all public spaces. France, Belgium, Austria, Bulgaria and Denmark ban the wearing of face-covering clothing in all public spaces, while the Netherlands prohibits this in certain places, such as schools, hospitals, public transport and government buildings.4 Some other countries have ­introduced regional or municipal bans. Recently, in a referendum 1 John Witte Jr and Andrea Pin, “Faith in Strasbourg and Luxembourg? The Fresh Rise of ­Religious Freedom Litigation in the Pan-European Courts,” Emory Law Journal 70, no. 3 (2021): 635. 2 The niqab is a veil that covers the head and face with the exception of the eyes. The burqa is a loose robe that covers the female form from head to toe with the exception of the hands and with gauze covering or a slit for the eyes. 3 For reasons of space, this chapter concentrates on prohibitions on the wearing of Islamic face-covering veils and headscarves in Europe and the case law of the European Court of Human Rights under the European Convention for the Protection of Human Rights and ­Fundamental Freedoms. 4 Erica Howard, Law and the Wearing of Religious Symbols in Europe (London/New York: ­Routledge, 2020), 1. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_005 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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in Switzerland, the majority (although only just: 51.2%) has voted for a ban on face-covering veils.5 The existing legal prohibitions are all phrased in neutral language, but the fact that they are colloquially referred to as ‘burqa bans’ shows the real target of such bans. These bans have been enacted despite the fact that very few women in Europe actually wear burqas.6 In some European countries, the wearing of hijabs7 or headscarves is prohibited for employees in public employment, and sometimes beyond. For example, in France, government employees, including teachers in state schools, are prohibited from wearing any religious clothing or symbols, which include Muslim headscarves, at work. Following a French law in 2004, primary and secondary school pupils are prohibited from wearing ostentatious signs or dress by which they openly manifest a religious affiliation.8 This means that girls are usually not allowed to wear a hijab to school.9 A law in Austria which bans ‘ideologically or religiously influenced clothing which is associated with the covering of the head’ in primary schools, adopted in 2019, was struck down by the Austrian Constitutional Court because it was aimed at Islamic headscarves (the government had made clear that head coverings worn by Sikh boys or Jewish skull caps were not covered by the law) and violated the right to freedom of religion.10 The decision of the Austrian Constitutional Court suggests that prohibitions on hijabs, niqabs and burqas can amount to an interference with the wearer’s freedom of religion. The right to freedom of religion is guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This right includes the right to manifest one’s religion. Article 9(2) determines that the right to manifest one’s religion can be restricted by the state, but only if the restriction is prescribed by law, and is necessary in a democratic society for the protection of public safety, public health or morals, or for the protection of the rights and freedoms of others. ‘Necessary in a democratic society’ means, according to the case law of the 5

“Switzerland Referendum: Voters Support Ban on Face Coverings in Public.” BBC, 7 March 2021, accessed 24 April 2021, https://www.bbc.co.uk/news/world-europe-56314173. 6 Howard, Law and the Wearing of Religious Symbols, 4–5. 7 The hijab is a scarf that covers the hair and neck but leaves the face free. There are other names and variations for Islamic face-covering veils and headscarves, but in this Chapter, we will use the term hijabs for the scarf that leaves the face free, while the terms niqab or burqa are used for veils that cover the whole or part of the face. 8 Law No. 2004’228 of 15 March 2004, Journal Officiel No. 65, 17 March 2004, 5190. 9 Howard, Law and the Wearing of Religious Symbols, 3. 10 “Austria Court Overturns Primary School Headscarf Ban.” BBC, 11 December 2020, accessed 24 April 2021, https://www.bbc.co.uk/news/world-europe-55277840.

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European Court of Human Rights (ECtHR), the Court overseeing the ECHR, that it must fulfil a pressing social need, it must be proportionate to the legitimate aim pursued and the reasons given by the national authorities to justify it must be relevant and sufficient.11 Prohibitions on the wearing of religious clothing or symbols can amount to a violation of the right to freely manifest one’s religion, unless the prohibition is justified using this test. A number of arguments have been brought forward in support of such bans,12 and one of these is that they are necessary to uphold the neutrality or the secular nature of the state. This Chapter will focus especially on this argument and the ECtHR case law on this. That Court has also accepted arguments about the protection of the public order and the minimum requirements of life in society which can both be linked to the secular nature of the state. The Chapter analyses whether these arguments are strong enough to justify restrictions on the wearer’s freedom of religion, or whether they signify an Islamic practice that secular democracies find objectionable. This chapter will start, in section 2, with examining the argument that ­legislation against the wearing of religious clothing, including face-covering clothing, is necessary to preserve the secular nature of the state. The fears of Islam and Muslims that are often at the basis of this argument has two main aspects: the fear of proselytising, which is analysed in section 3, and, the fear of segregation from society and the rejection of the minimum requirements of life in society, analysed in section 4. Section 5 will contain an assessment of how the argument for the preservation of the secular nature of the state as well as these fears can be countered. This leads to the conclusion in section 6. 2

Preserving the Secular Nature of the State

The argument that laws against the wearing of religious clothing and symbols are necessary for the preservation of the secular nature of the state, and to uphold the separation between church and state, has been brought forward to justify such prohibitions, especially in countries such as France and Turkey, where the principle of the secular state is laid down in their respective constitutions. Mazher Idriss writes about the French constitutional principle of

11 ECtHR, Sunday Times v the United Kingdom, App. No. 6538/74, 26 April 1979, para. 62. 12 For a discussion of these arguments see Howard, Law and the Wearing of Religious ­Symbols, 36–66.

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laïcité13 that it symbolises ‘the non-religious nature of the state, where the state neither recognises nor subsidises a particular religion.’ This means that ‘no one religious code should be imposed by the state upon its citizens’ and that ‘religious beliefs should remain outside the public sphere.’14 Poulter points out: There are deep ambiguities about the notion of laïcité. On the one hand, it can be viewed as a passive neutrality of non-intervention by the state in the private religious domain, coupled with a principle of non-­discrimination in the public sphere. On the other hand, it can be interpreted as a more active secularism, in terms of which the nation is promoted as a fundamentally political society fiercely independent of any religious authority but one in which the values of the state can be utilized through the concept of l’ordre public to justify interference where necessary with some religious organizations.15 The second form of laïcité described by Poulter is the prevailing one in French governmental and educational organisations, according to Mazher Idriss, who calls this a ‘far more aggressive’ form of laïcité, ‘where the state will strive hard to maintain its religious neutrality by curtailing religious freedom, in the interests of the public order.’ He then continues that ‘this interpretation of laïcité allows the government justifiably to control religious expression in governmental institutions, including schools, on the part of schoolteachers and school pupils.’16 Where state neutrality is used as an argument for banning religious symbols from educational and other public institutions, it is, therefore, used in the second meaning of an active, more aggressive secularism. This is clear from Article 25 of the French law on the rights and obligations of civil servants, which states that civil servants are bound by the obligation of n ­ eutrality and that they have to exercise their duty in accordance with the

13

14 15 16

The term laïcité is often translated in English as secularism and I will use these terms as ­ aving the same meaning, although I am aware that ‘the English term does not fully capture h the true (and French) meaning’ as Mazher Idriss writes, see: Mohammad Mazher Idriss, “Laïcité and the Banning of the ‘Hijab’ in France.” Legal Studies 25, no. 2 (2005): 262. For more information on the meaning of laïcité see: Mazher Idriss, “Laïcité”, 260–265; Sebastian Poulter, “Muslim Headscarves in School: Contrasting Legal Approaches in England and France,” Oxford Journal of Legal Studies 17, no. 1 (1997): 49–52; Dawn Lyon and Deborah Spini, “Unveiling the Headscarf Debate,” Feminist Legal Studies 12, (2004): 335–336. Mazher Idriss, “Laïcité,” 261. Poulter, “Muslim Headscarves in School,” 50. Mazher Idriss, “Laïcité,” 261–262.

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principle of secularism, by refraining from manifesting their religious opinion while carrying out their duties.17 In Ebrahimian v France, a psychiatric social worker in a public hospital did not have her temporary contract renewed because she refused to remove her veil.18 The ECtHR stated that the reasons for not renewing Ms Ebrahimian’s contract – the requirement of religious neutrality in a context where the users of the public service were in a vulnerable situation – pursued the legitimate aim of the protection of the rights of others. This was because ‘the purpose was to ensure respect for all of the religious beliefs and spiritual orientations held by the patients who were using the public service and were recipients of the requirement of neutrality imposed on the applicant, by guaranteeing them strict equality.’19 The ECtHR thus held that the legitimate aim of the protection of the rights of others included the constitutional principle of secularism. The more aggressive secularism, referred to above, can also be seen in Sahin v Turkey, concerning a medical student at university who was not allowed to sit her exams wearing a hijab. According to the ECtHR, this was an interference with the student’s right to manifest her religion, but it was justified (among other reasons) because it aimed at preserving the secularist nature of the ­Turkish state.20 The Chamber and the Grand Chamber of the Court both considered that the notion of secularism is consistent with the values underpinning the ECHR and that upholding this principle, which is one of the fundamental principles of the Turkish State, may be considered necessary to protect the democratic system in Turkey.21 The Grand Chamber mentioned that the principle of secularism was the paramount consideration for the ban on the wearing of religious symbols in universities, and that it was, therefore, ‘understandable that the relevant authorities considered it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn.’22 17 Law No. 83-634 of 13 July 1983 on the rights and obligations of civil servants. 18 ECtHR, Ebrahimian v France, App. No. 64846/11, 26 November 2015. The ECtHR referred to Ms Ebrahimian wearing a veil, but commentators have referred to her wearing an Islamic headscarf, see, for example: Eva Brems, “Ebrahimian v France: Headscarf Ban Upheld for the Entire Public Sector,” Strasbourg Observers, 27 November 2015, accessed 24 April 2021, https://strasbourgobservers.com/2015/11/27/ebrahimian-v-france-headscarf-ban-upheldfor-entire-public-sector/. 19 Ebrahimian v France, para. 53. 20 ECtHR, Sahin v Turkey, App. No. 44774/98, 29 June 2004 (Chamber); 10 November 2005, (Grand Chamber). 21 Sahin v Turkey, Chamber para. 106; Grand Chamber, para. 114. 22 Sahin v Turkey, Grand Chamber, para. 116.

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This suggests that the ECtHR sees the preservation of secularism as a l­egitimate aim for restrictions on the freedom to manifest one’s religion by wearing religious clothing or symbols. This is confirmed by Ahmet Arslan and Others v Turkey, where the ECtHR took into account the importance of the principle of secularism for the democratic system in Turkey, and accepted that the interference complained of, insofar as it aimed at ensuring respect for secular and democratic principles, pursued several of the legitimate aims enumerated in Article 9: the maintenance of public security, the protection of order as well as the protection of the rights and freedoms of others.23 The above also suggests that a state can require neutrality and support for secularism from its employees. Support for this can be found in a recommendation of the Parliamentary Assembly of the Council of Europe, where it states that ‘legal restrictions on this freedom [freedom of religion] may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen.’24 The ECtHR confirmed this in Hamidovic v Bosnia and Herzegovina,25 where a witness in a criminal trial had been held in contempt of court after he refused to remove his skull cap in court. The ECtHR accepted the legitimate aim of upholding secular and democratic values as part of the protection of the rights and freedoms of others. However, it distinguished this case from previous cases concerning the wearing of religious symbols by public officials at work, because they may be ‘under a duty of discretion, neutrality and impartiality, including a duty not to wear such symbols and clothing while exercising official authority. In democratic societies, private citizens, such as the applicant, are normally not under such a duty.’26 The ECtHR went on to find a violation of Article 9 ECHR. But what is behind this emphasis on preserving religious neutrality and upholding secularism? In a Resolution in 2010, the Parliamentary Assembly states that it ‘deplores that a growing number of political parties in Europe exploit and encourage fear of Islam and organise political campaigns which promote simplistic and negative stereotypes concerning Muslims in Europe and often equate Islam with extremism.’27 Power-Forde expresses a similar 23 ECtHR, Ahmet Arslan and Others v Turkey, App. No. 41135/98, 23 January 2010, para. 43. 24 Parliamentary Assembly, Council of Europe, Recommendation 1927, Islam, Islamism and Islamophobia, (2010), para. 3.13, accessed 24 April 2021, http://www.assembly.coe.int/nw /xml/XRef/Xref-XML2HTML-en.asp?fileid=17881&lang=en. 25 ECtHR, Hamidovic v Bosnia and Herzegovina, App. No. 57792/15, 5 December 2017. 26 Ibid. para. 40. 27 Parliamentary Assembly, Council of Europe, Resolution 1743, Islam, Islamism and Islamophobia (2010) para. 12, accessed 24 April 2021, https://pace.coe.int/en/files/17880/html. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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view where she writes that ‘in recent years, a discourse has sprung up that not only criticizes extremist and radical interpretations of a politicized Islam (and rightly so), but which also attack Islam itself as if it were “somehow an intrinsically inhuman religion”.28 This suggests that Islam is seen as ‘inhuman,’ as going against the values of human rights, pluralism and tolerance, against the values of secular societies. Muslims are then seen as not fitting into these ­societies and not wanting to subscribe to its values. This fear of Islam and Muslims, also referred to as Islamophobia, which is exploited by some political parties, appears to be behind the stress on neutrality and secularism and behind the calls for restrictions on the wearing of Islamic headscarves and face-covering veils. In S.A.S. v France, a challenge to the French law banning face-covering clothing in public spaces,29 the ECtHR expressed its concern about ‘the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’.30 This fear can be said to have two main and interlinked aspects: fear of proselytism or religious propaganda, and, fear of separation and segregation from society and a threat to the minimum requirements of life in society, of living together. Each of these will be examined in turn. 3

Fear of Proselytism

The first aspect of this Islamophobia appears to be fear of religious indoctrination. Lyon and Spini, writing about the headscarf debates before the 2004 French law prohibiting schoolchildren from wearing ostentatious signs of ­religious affiliation, put it as follows: there was the argument that the foulard islamique [Islamic headscarf] is a form of religious propaganda, for which there should be no place in public schools, all the more so since the foulard can be read as opposing certain values which are protected in French Republicanism, such as ­tolerance and equality.31

28

Ann Power-Forde, “Freedom of Religion and ‘Reasonable Accommodation’ in the Case Law of the European Court of Human Rights,” Oxford Journal of Law and Religion 5, no. 3 (2016): 578. 29 Law no. 2010-1192 of 11 October 2010. 30 ECtHR, S.A.S. v France, App. No. 43835/11, 1 July 2014, para. 149. 31 Lyon and Spini, “Unveiling the Headscarf Debate,” 335–336. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Therefore, in this view, the wearing of the headscarf, even by schoolchildren, is seen as indicating that the wearer wants to propagate her religion and wants to convert others. In 1989, the French Conseil d’État gave a ruling on the compatibility with the principle of secularism of wearing signs at school indicating affiliation to a religious community, which stated that the freedom of expression and of manifesting religious beliefs ‘should not allow pupils to display signs of religious affiliation, which, inherently, in the circumstances in which they are worn, individually or collectively, or conspicuously or as a means of protest, might constitute a form of pressure, provocation, proselytism or propaganda.’32 Poulter discussing the developments in France in relation to the wearing of headscarves at schools after 1989, refers to a circular from the French Minister for National Education in 1994, which stated that ostentatious insignia would be, in themselves, elements of proselytism.33 Poulter recounts that girls wearing headscarves were excluded from school because their actions amounted to proselytism, provocation or the disruption of the good order of the school and that this was upheld by several judicial authorities.34 Dahlab v Switzerland concerned a teacher in a primary school (her pupils were between 4 and 8 years old) who challenged a ban on her wearing a headscarf in school. The ECtHR accepted 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 religion of very young children’; and, that ‘it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect.’35 This was despite the fact that, as the ECtHR noted, Ms Dahlab had been teaching with a headscarf for more than three years without any complaints from parents, and that this implied that ‘there were no objections to the content or quality of the teaching provided by the applicant, who does not appear to have sought to gain any kind of ­advantage from the outward manifestation of her religious beliefs.’36 In Dogru v France,37 the applicant was a girl who was excluded from school for refusing to remove her headscarf during physical education classes. She had offered to wear a hat or balaclava, but this was not accepted by the school. 32

Avis n° 346.893 du Conseil d’Etat - 27/11/1989 - Port du foulard islamique. English translation can be found in ECtHR, Dogru v France, App. No. 27058/05, 4 December 2008, para. 26. 33 Poulter, “Muslim Headscarves in School,” 61–62. 34 Ibid. 61–62. 35 ECtHR, Dahlab v Switzerland, App. No. 42393/98, 15 February 2001 (Admissibility ­Decision), under ‘The Law’, 1. 36 Ibid. 37 ECtHR, Dogru v France, App. No. 27058/05, 4 December 2008.

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The ECtHR held that this exclusion was justified for the protection of the rights and freedoms of others and the protection of public order. But can it be said that a hat or balaclava would have had a proselytising effect? All this appears to be based on the fact that the mere wearing of a hijab has a proselytising effect and puts pressure on other people to convert to Islam. However, it can be asked whether this is really the case? This is further ­analysed in section 5 below. First, we examine the second main aspect of the fear of Islam and Muslims that exists in Europe. 4

Fear of Retreating from ‘Living Together’

There are two linked parts to this fear: first, the wearing of headscarves and face-covering veils is a sign of failed integration and assimilation of migrants in the society in which they live, which means that these groups are marginalised and excluded and this ‘raises fears of groups being radicalised (for example into violent and terrorist activity).’38 Second, these veils are also seen as a sign of both an unwillingness and an inability to integrate and to take part in s­ ociety. As DeBula Bains writes, ‘a simple hijab, when worn by Muslim girls, signifies to many French a refusal to become French.’39 Headscarves and ­face-veils set the wearer apart from other people and this leads to the creation of separate communities, thus furthering social and cultural division. Both can lead to threats to safety and the public order. In S.A.S. v France, the French government brought forward as one of the legitimate aims of the ban: ensuring ‘respect for the minimum set of values of an open and democratic society,’ which was part of the protection of the rights and freedoms of others. According to the French government: the face plays a significant role in human interaction: more so than any other part of the body, the face expresses the existence of the individual as a unique person, and reflects one’s shared humanity with the interlocutor, at the same time as one’s otherness. The effect of concealing one’s face in public places is to break social ties and to manifest a refusal of the principle of “living together” (le “vivre ensemble”).40 38 39 40

Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford/Portland, Oregon: Hart Publishing, 2006), 19. Cynthia DeBula Bains, “L’Affaire des Foulards – Discrimination, or the Price of a Secular Public Education System?” Vanderbilt Journal of Transnational Law 29, (1996): 311. S.A.S. v France, para. 82.

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The ECtHR accepted this argument as a legitimate aim, and then found that the ban was justified ‘in so far as it seeks to guarantee the conditions of “living together”’.41 It stated: The Court takes into account the respondent State’s point that the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.42 However, the ECtHR accepted that the notion of ‘living together’ was flexible and thus risked being abused and that, therefore, ‘the Court must engage in a careful examination of the necessity of the impugned limitation.’43 In the debates in the Belgian Parliament on the law banning face-covering in all public spaces, the principles of civility and sociability were mentioned. These principles mean that the visibility of someone’s face forms the basis for – even minimal - communication between members of society and that the identity of an individual is expressed in their face. So, covering the face is a barrier to normal communications in everyday society which can only properly take place when people can see each other’s face.44 After the law in Belgium was adopted, it was also challenged before the ECtHR, which followed its own judgment in S.A.S. v France and held the ban justified for the same reasons.45 The main argument for introducing a ban on face-covering clothing in education, public transport, public buildings and health care in the Netherlands was that covering the face seriously affects open and mutual communication.46 41 Ibid. para. 142. 42 Ibid. para. 122. 43 Ibid. 44 DCO 52 2289/005 Chambre des Représentants de Belgique, Proposition de Loi Visant à Interdire le Port de Tout Vêtement Cachant Totalement ou de Manière Principale le Visage, 9 April 2010, para. 6–7, accessed 24 April 2021, http://www.lachambre.be/FLWB/ PDF/52/2289/52K2289005.pdf. 45 ECtHR, Belcacemi and Oussar v Belgium, App. No. 37798/13, 11 July 2017, para. 61; ECtHR, Dakir v Belgium, App. No. 4619/12, 11 July 2017, para. 60. 46 Erica Howard, “Religious Clothing and Symbols in Employment: A Legal Analysis of the Situation in the EU Member States,” European Network of Legal Experts in Gender ­Equality Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Likewise, the preparatory notes to the Austrian law banning covering the face in public, show that the aim was ‘to facilitate integration by strengthening participation and living together in society. Integration is a process involving society at large while its success depends on the cooperation of everyone in Austria and is based on social interaction.’47 Therefore, the ‘living together’ argument stresses the importance of mutual and open interaction between people in society which is important to facilitate integration. 5

Counter Arguments

Whether the wearing of religious symbols must be prohibited in order to ­preserve the secular nature of the state depends on the interpretation given to secularism or laïcité. Bans are not necessary if these terms are interpreted as a passive neutrality,48 as referring to a policy of non-intervention where all religions and religious symbols are treated equally. State neutrality would only be affected if the state prohibited symbols of a certain religion only, because it would indicate that the state is of the opinion that this particular religion does not deserve equal respect and does not need to be treated equally with other religions. State neutrality, the secular nature of the state, would be maintained as long as there is no favouring of one religion over others and if there is no religious indoctrination of any sort. However, if secularism is interpreted as a more ‘active’49 or ‘aggressive’50 laïcité, then the state will aim to keep all ­religions outside the public space. 5.1 Preservation of the Secular Nature of the State The argument that bans on religious clothing and symbols are necessary for the preservation of the secular nature of the state can, independent of the interpretation of secularism, be countered even more strongly in the following way. According to the French Conseil d’État, secularism should manifest itself in three principles: state neutrality, religious freedom and respect for pluralism.51 and Non-Discrimination, European Commission, Directorate General for Justice and Consumers 78, accessed 24 April 2021, http://ec.europa.eu/newsroom/just/item-detail .cfm?item_id=608849. 47 Ibid. 82. 48 Poulter, “Muslim Headscarves in School,” 50. 49 Ibid. 50 Mazher Idriss, “Laïcité,” 261–262. 51 Conseil d’État, Study of Possible Legal Grounds for Banning the Full Veil, Report adopted by the Plenary General Assembly of the Conseil d’État, 25 March 2010, 23–24, accessed 24 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Therefore, state neutrality clearly goes hand-in-hand with religious freedom and pluralism. The ECtHR also clearly links pluralism to tolerance and broadmindedness, as it has held that a society cannot be a democratic society without these three.52 Allowing the wearing of religious symbols in public places would show tolerance, broadmindedness and respect for pluralism, as well as respect for every individual’s right to freedom of religion and to manifest that religion. It is suggested that pluralism is about accepting differences and diversity between groups and treating everyone with the same respect. As the ECtHR stated in The Moscow Branch of the Salvation Army v Russia, ‘pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of ... religious beliefs…’.53 Allowing religious symbols to be worn in schools and other public places rather than banning this would show genuine recognition of, and respect for, pluralism and diversity. And, as the ECtHR continued, ‘the harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion.’54 It is clear that this also counteracts the fear of groups retreating from society, from ‘living together.’ As was mentioned, in S.A.S. v France, the ECtHR expressed its concern about the fact that Islamophobic remarks had marked the debate on the French law banning face-covering in public spaces. The ECtHR then considered: It is admittedly not for the Court to rule on whether legislation is desirable in such matters. It would, however, emphasise that a State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance. … The Court reiterates that remarks which constitute a general, vehement attack on a religious or ethnic group are incompatible with the values of tolerance, social peace and non-discrimination which underlie the Convention …55

April 2021, https://www.conseil-etat.fr/ressources/etudes-publications/rapports-etudes /etudes/etude-relative-aux-possibilites-juridiques-d-interdiction-du-port-du-voileintegral. 52 ECtHR, Handyside v United Kingdom, App. No. 5493/72, 7 December 1976, para. 49. This was also stressed by the Grand Chamber in Sahin v Turkey, para. 108; and, in S.A.S. v France, para. 128. 53 ECtHR, The Moscow Branch of the Salvation Army v Russia, App. No. 72881/01, 5 October 2006, para. 61. 54 Ibid. 55 S.A.S. v France, para. 149.

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The dissenters in S.A.S. v France, agreed with the applicant that ‘the French legislature has restricted pluralism, since the measure prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public.’ They described the blanket ban ‘as a sign of selective pluralism and restrictive tolerance.’ They further pointed out that the ECtHR has held that the state has a duty to ensure mutual tolerance between opposing groups, and that ‘the role of the authorities ... is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.’56 The dissenters conclude that, by banning the full-face veil, the French legislature has done the opposite. It has not sought to ensure tolerance between the vast majority and the small minority but has prohibited what is seen as a cause of tension.57 The dissenting judges thus clearly expressed that ‘tolerance, broadmindedness and pluralism’ would be an argument against bans on facecovering clothing and against the proposition that these bans are necessary for the preservation of the secular nature of the state. It was suggested above that a state can require neutrality and support for secularism from its employees. However, both the Parliamentary Assembly of the Council of Europe58 and the ECtHR, in Hamidovic v Bosnia and Herzegovina,59 appear to suggest that such a duty is subject to the justification test in Article 9(2) ECHR. The dissenting judge, in Ebrahimian v France, stated that the judgment of the majority suggested that ‘the abstract principle of laïcité or secularism of the State requires a blanket prohibition on the wearing by a public official at work of any symbol denoting his or her religious belief’ but that this ‘rests on the false (and, I would add, very dangerous) premise … that the users of public services cannot be guaranteed an impartial service if the public official serving them manifests in the slightest way his or her religious affiliation.’60 This suggests that the mere wearing of a headscarf indicates a lack of impartiality or the presence of partiality and this could be linked to the fear of proselytism. 5.2 Fear of Proselytism However, should the mere wearing of a headscarf or face-covering veil be seen as proselytism, as indicating that the wearer wants to convert others? It is 56 57 58 59 60

S.A.S. v France, Dissenting Opinion Judges Nußberger and Jäderblom, para. 14; the ­dissenters refer to ECtHR, Serif v Greece App. No. 38178/97, 14 December 1999, para. 53. S.A.S. v France, Dissenting Opinion, para. 14. Parliamentary Assembly, Council of Europe, Recommendation 1927, para. 3.13. Hamidovic v Bosnia and Herzegovina. Ebrahimian v France, Dissenting Opinion Judge de Gaetano.

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submitted that a distinction has to be made between practising one’s religion on the one hand and trying to proselytise/convert others on the other hand. The latter might be legitimately restricted if it interferes with the right of others to freedom of religion or to be free from religion. Nathwani writes that, ‘indoctrination can be and needs to be distinguished from the simple wearing of religious symbols’ and suggests that indoctrination can be avoided in other, less intrusive ways than banning the wearing of headscarves and faceveils.61 Sharpston also points out that this distinction should be made and that proselytising may legitimately be prohibited in order to safeguard the rights of ­others; and, that a legitimate limitation on proselytising would, for example, be ‘protecting vulnerably [sic] younger children from being influenced towards adopting a particular religion by the persuasive discourse of a teacher.’62 The ECtHR itself, in Dahlab, noted that there were no complaints regarding any attempt at proselytising. Moreover, ‘there was no evidence of the applicant having a political agenda, and even the Swiss Federal Court accepted that she only wished to wear the headscarf “in order to obey a religious precept”’.63 Sharpston suggests that Dahlab should not be seen as authority for accepting that a ban is justified because the wearing of the headscarf in itself is a form of proselytising, mainly because the events in Dahlab happened in the early 1990s, the ECHR is a living instrument and moves with the times, and the ECtHR has already moved on from its decision in Dahlab.64 Support for this can also be found in Ahmet Arslan v Turkey, where the ECtHR considered, in relation to the allegation of the Turkish government of possible proselytising on the parts of the applicants, that there was no evidence to show that they had sought to exert inappropriate pressure on passers-by in public streets and squares in order to promote their religious beliefs.65 This, indeed, suggests that the ECtHR has moved on and is now seeing the mere wearing of religious clothing without proper evidence of proselytising as insufficient to justify prohibiting this. 61 62

63 64 65

Niraj Nathwani, “Islamic Headscarves and Human Rights: A Critical Analysis of the ­ elevant Case Law of the European Court of Human Rights,” Netherlands Quarterly of R Human Rights 25, no. 2 (2007): 230–231. Eleanor Sharpston, Former Advocate General of the Court of Justice of the European Union, “Shadow Opinion of Former Advocate General Sharpston: Headscarves at Work (Cases C-804/18 and C-341/19)”, EU Law Analysis, 23 March 2021, para. 125–126, accessed 24 April 2021, http://eulawanalysis.blogspot.com/2021/03/shadow-opinion-of-former-advocate.html Peter Cumper and Tom Lewis, “Taking Religion Seriously? Human Rights and Hijab in Europe: Some Problems of Adjudication,” Journal of Law and Religion 24 (2008–2009): 609. Sharpston, Shadow Opinion, para. 301–307. Ahmet Arslan and Others v Turkey, para. 51.

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In her dissenting opinion in Sahin v Turkey, Judge Tulkens mentioned that there was no evidence that Ms Sahin wore the headscarf in order to ‘exert pressure, to provoke a reaction, to proselytise or to spread propaganda’ nor was it used to ‘undermine – or was liable to undermine – the convictions of others.’ Neither was there a suggestion or any evidence of ‘disruption in teaching or in everyday life at the university, or any disorderly conduct’.66 The two dissenting judges in S.A.S. v France write that ‘it seems to us, however, that such fears and feelings of uneasiness are not so much caused by the veil itself, which – unlike perhaps certain other dress-codes – cannot be perceived as aggressive per se, but by the philosophy that is presumed to be linked to it’ [emphasis added].67 This links this clearly to the fear of Islam. They continue that ‘the full-face veil was also linked to the “self-confinement of any individual who cuts himself off from others whilst living among them”’.68 The latter links in with the fear of retreating from society. 5.3 Fear of Retreating from Society A number of counterarguments can be brought forward here as well. First of all, the argument that bans are necessary to promote ‘living together,’ because hiding the face is to break social ties and serves to make open, interpersonal relationships impossible, suggests that human interaction can only take place when people can see each other’s faces. However, not only does this seem to overlook that much communication in present day society takes place via telephones and texts, it has also been brought into perspective during the global Covid-19 pandemic, which has led to the compulsory wearing of face masks in many countries. If communication with people wearing face masks is possible, why is it not possible with people wearing a niqab? What is the difference?69 In fact, in France, where the wearing of face-masks was compulsory, the burqa and niqab were still prohibited. So a woman could simultaneously be fined for not wearing a face mask and for wearing a face-covering veil.70 66 Sahin v Turkey, Dissenting Opinion Judge Tulkens, para. 8. 67 S.A.S. v France, Dissenting Opinion, para. 6. 68 Ibid. 69 Katherine Bullock, “We are All Niqabis Now: Coronavirus Masks Reveal the Hypocrisy of Face Covering Bans,” The Conversation, 27 April 2020, accessed 24 April 2021, https://theconversation.com/we-are-all-niqabis-now-coronavirus-masks-reveal-hypocrisy-of-facecovering-bans-136030. 70 James McAuley, “France Mandates Masks to Control the Corona Virus. Burqas Remain Banned,” The Washington Post, 10 May 2020, accessed 24 April 2021, https://www.washingtonpost.com/world/europe/france-face-masks-coronavirus/2020/05/09/6fbd50fc-8ae611ea-80df-d24b35a568ae_story.html.

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Second, the argument that wearing a hijab, niqab or burqa shows the ­ earer’s reluctance to integrate, to be part of and take part in the society w she lives in, is not borne out by any evidence. As Brems writes, empirical ­evidence shows that: Within their familiar environment, especially before the ban, face veil wearers participated in a range of social activities involving contact with others at schools (picking up children), in shops, administrative offices etc. … But there does not appear to be a pattern of withdrawal from ­everyday social life - at least not before the ban.71 Above we mentioned that the dissenting judges, in S.A.S. v France, stated that the veil ‘linked to self-confinement of any individual who cuts himself off from others whilst living among them.’72 The dissenters follow this with pointing out that this and other interpretations of the veil had all been called into question by the applicant in that case.73 The ECtHR, in S.A.S. v France, appears to say something similar where it states that ‘it does not have any evidence capable of leading it to consider that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others’.74 Moreover, rather than preventing the retreat from life in society, the legal prohibition on face-covering in public spaces could have the opposite effect in that it stops women, who wear face-covering veils for religious reasons, from leaving the house at all, from taking part in society. Brems, in the quote above, stresses that she was talking about evidence ‘before the ban’ and mentions later on that the empirical research from France, which was presented to the ECtHR in S.A.S. v France, ‘shows clearly that the ban has decreased the level of participation of these women.’75 Another effect of the bans which can be seen as a counterargument here is that bans, because they clearly target Muslims, could lead to a strengthening of the Muslim identity and an increase in the polarisation between Muslims and others in society, which could exacerbate social divisions and, thus, achieve the opposite of ‘living together’ by increasing segregation, radicalisation and risks to public safety. 71 72 73 74 75

Eva Brems, “SAS v France: A Reality Check,” Nottingham Law Journal 25, (2016): 67. S.A.S. v France, Dissenting Opinion, para. 6. Ibid. para. 7. S.A.S. v France, para. 120. Brems, “SAS v France: A Reality Check,” 68.

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Another counterargument under this heading would be that the task of the ECtHR, as the dissenters in S.A.S. v France point out, is to protect small minorities against disproportionate interferences. In this same case, the ECtHR expresses the same where it states: Pluralism, tolerance and broadmindedness are hallmarks of a “­democratic society”. 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 treatment of people from minorities and avoids any abuse of a dominant position. However, the ECtHR, in S.A.S. v France, has been accused of not scrutinising whether the ban actually succeeds in achieving the aim of living together and ‘that there is evidence that it does not and only succeeds in further marginalising an unpopular minority’.76 Furthermore, the ‘living together’ argument, the recognition of ‘the minimum requirements of life in society’, taken to its full conclusion could mean that any minority practice which makes the majority population feel uncomfortable could be banned. This could include hoodies or sunglasses but also, as Brems suggests, clearing Roma people from the streets because the majority of people in a country do not like to socially interact with Roma, or accepting prohibitions on ‘homosexual propaganda’ as a choice of Russian society because this makes many Russians uncomfortable.77 Edwards similarly argues that: the French ban and the opinion of the ECtHR [in S.A.S. v France] sends out the message that matters of interest and habit that may characterise a minority, where disapproved of by the majority, will in fact not be tolerated but simply eradicated and erased and extinguished.78 Therefore, feelings of fear and uneasiness of the majority would then dictate what a majority could do or wear. This would not only hinder rather than promote integration of Muslims and, especially veil wearing Muslim women, but 76 77 78

John Adenitire, “Case Comment. Has the European Court of Human Rights Recognised a Legal Right to Glance at a Smile?” Law Quarterly Review 131 (2017) 48. Eva Brems, “S.A.S. v. France as a Problematic Precedent,” Strasbourg Observers, 9 July 2014, accessed 24 April 2021, https://strasbourgobservers.com/2014/07/09/s-a-s-v-france-as-aproblematic-precedent/. Susan Edwards, “No Burqas We’re French: The Wide Margin of Appreciation and the ECtHR Burqa Ruling,” Denning Law Journal 26, (2014): 255.

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would also go against the pluralism, tolerance and broad-mindedness which characterises a democratic society. The Parliamentary Assembly of the Council of Europe sums all this up well where it notes that ‘in many Council of Europe member states, Muslims feel socially excluded, stigmatised and discriminated against; they become victims of stereotypes, social marginalisation and political extremism’.79 Further, they state: A great majority of European Muslims share the principles at the basis of our societies and it is essential to fight against Islamophobia, which stems mainly from lack of awareness and from negative perceptions ­associating Islam with violence. Failing to address these issues, many European g­ overnments pave the way to the rise of extremism.80 The Parliamentary Assembly suggests that national governments and the Council of Europe ‘must give priority to fostering the social inclusion of ­Muslims and other religious minorities.’81 6 Conclusion In this Chapter, legal bans on the wearing of hijabs, burqas and niqabs have been analysed and particular attention has been given to the argument that such bans are necessary for the preservation of the secular nature of the state and the counter arguments brought forward against this. Throughout the whole chapter, the ECtHR case of S.A.S. v France played an important role, as the decision of the Grand Chamber and of the dissenting judges dealt with the aspect of the secular nature of the state in the form of the argument that bans were necessary to guarantee the minimum requirements of living together in society. It was argued that, independent of what interpretation is given to the term ‘secularism,’ the preservation of the secular nature of the state should not be accepted as a legitimate aim for bans, and that prohibiting the wearing of r­ eligious symbols in public places would go against the respect for pluralism, tolerance and broadmindedness that are, according to the case law of the ECtHR, requisites for a democratic society. It would also not respect every ­individual’s right to freedom of religion and to manifest that religion freely. 79 80 81

Parliamentary Assembly, Council of Europe, Resolution 1743, para. 1. Ibid. para. 2. Ibid. para. 8.

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Two aspects of the fear of Islam and Muslims, which often lies at the basis of the argument that bans on the wearing of religious clothing are necessary for the preservation of the secular nature of society, were examined. The fear of proselytising is based on the, as was argued, erroneous assumption that the mere wearing of a hijab, niqab or burqa signifies the wearer’s intention to proselytise and to try and convert others. A distinction has to be made between practising one’s religion and proselytism. This is supported by the fact that the ECtHR now sees the mere wearing of religious clothing without proper evidence of proselytising as insufficient to justify prohibitions. A number of arguments were brought forward against the second fear, the fear of retreat from society, including the hypocrisy of banning face-covering clothing but making the wearing of face-masks compulsory during the global Covid-19 pandemic; the lack of empirical evidence that veil wearing women are unable or unwilling to take part in society; that bans might actually stop women from doing so and could lead to more segregation, polarisation and social divisions which, in turn, could lead to radicalisation; and, upholding bans based on the living together argument panders to the feelings of unease from the majority and ignores the ECtHR’s duty to protect minorities in society. This would then also go against the pluralism, tolerance and broadmindedness which form the foundation of a democratic society. It is submitted that bans on the wearing of headscarves and face-covering veils do constitute an interference with the wearer’s freedom to manifest their religion. There is no evidence to support the assertion that women who wear hijabs, niqabs or burqas are doing this to convert others, nor that they want to segregate themselves from society. Just because the majority in society finds certain forms of dress objectionable, that is no reason to prohibit these. Therefore, it appears that headscarves and face-covering veils indeed signify an Islamic practice that secular democracies find objectionable and that the ECtHR has accepted this as reason for banning such clothing. It is submitted that the ECtHR should, instead, scrutinise justifications brought forward for bans very strictly and should require factual evidence that bans are necessary to preserve the secular nature of society. The ECtHR should not simply accept that this is the case based on feelings of fear and uneasiness of the majority. There is, as the dissenters in S.A.S. v France state, ‘no right not to be shocked or provoked by different models of cultural or religious identity, even those that are very distant from the traditional French and European lifestyle’ and neither is there ‘a right to enter into contact with other people, in public places, against their will.’82 The ECtHR should heed this. 82

S.A.S. v France, Dissenting Opinion, para. 7 and 8.

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Bibilography Books Howard, Erica. Law and the Wearing of Religious Symbols in Europe. London/New York: Routledge, 2020. Howard, Erica. Religious Clothing and Symbols in Employment: A Legal Analysis of the Situation in the EU Member States. European Network of Legal Experts in Gender Equality and Non-Discrimination, European Commission, Directorate General for Justice and Consumers, 2017. http://ec.europa.eu/newsroom/just/item-detail .cfm?item_id=608849. McGoldrick, Dominic. Human Rights and Religion: The Islamic Headscarf Debate in Europe. Oxford/Portland, Oregon: Hart Publishing, 2006.

Articles Adenitire, John. “Case Comment. Has the European Court of Human Rights Recognised a Legal Right to Glance at a Smile?” Law Quarterly Review 131, (2017): 43–48. “Austria Court Overturns Primary School Headscarf Ban.” BBC, 11 December 2020. https://www.bbc.co.uk/news/world-europe-55277840. Brems, Eva. “SAS v France: A Reality Check.” Nottingham Law Journal 25, (2016): 58–72. Brems, Eva. “Ebrahimian v France: Headscarf Ban Upheld for the Entire Public Sector.” Strasbourg Observers, 27 November 2015, https://strasbourgobservers.com/2015/11/27 /ebrahimian-v-france-headscarf-ban-upheld-for-entire-public-sector/. Brems, Eva. “S.A.S. v. France as a Problematic Precedent.” Strasbourg Observers, 9 July 2014, https://strasbourgobservers.com/2014/07/09/s-a-s-v-france-as-a-problematicprecedent/. Bullock, Katherine. “We Are All Niqabis Now: Coronavirus Masks Reveal the Hypocrisy of Face Covering Bans.” The Conversation, 27 April 2020, https://theconversation .com/we-are-all-niqabis-now-coronavirus-masks-reveal-hypocrisy-of-face-covering-bans-136030. Cumper, Peter and Lewis, Tom. “Taking Religion Seriously? Human Rights and Hijab in Europe: Some Problems of Adjudication.” Journal of Law and Religion 24, (2008– 2009): 599–627. DeBula Bains, Cynthia. “L’Affaire des Foulards – Discrimination, or the Price of a Secular Public Education System?” Vanderbilt Journal of Transnational Law 29, (1996): 303–327. Edwards, Susan. “No Burqas We’re French: The Wide Margin of Appreciation and the ECtHR Burqa Ruling.” Denning Law Journal 26, (2014): 246–260.

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Idriss, Mohammad Mazher. “Laïcité and the Banning of the ‘Hijab’ in France.” Legal Studies 25, no. 2 (2005): 260–295. Lyon, Dawn and Spini, Deborah. “Unveiling the Headscarf Debate.” Feminist Legal Studies 12, (2004): 333–345. McAuley, James. “France Mandates Masks to Control the Corona Virus. Burqas Remain Banned.” The Washington Post, 10 May 2020, https://www.washingtonpost.com /world/europe/france-face-masks-coronavirus/2020/05/09/6fbd50fc-8ae6-11ea -80df-d24b35a568ae_story.html. Nathwani, Niraj. “Islamic Headscarves and Human Rights: A Critical Analysis of the Relevant Case Law of the European Court of Human Rights.” Netherlands Quarterly of Human Rights 25, no. 2 (2007): 221–254. Poulter, Sebastian. “Muslim Headscarves in School: Contrasting Legal Approaches in England and France.” Oxford Journal of Legal Studies 17, no. 1 (1997): 43–74. Power-Forde, Anne. “Freedom of Religion and ‘Reasonable Accommodation’ in the Case Law of the European Court of Human Rights.” Oxford Journal of Law and ­Religion 5, no. 3 (2016): 575–603. Sharpston, Eleanor. “Shadow Opinion of Former Advocate General Sharpston: Headscarves at Work (Cases C-804/18 and C-341/19).” EU Law Analysis, (March 2021), http://eulawanalysis.blogspot.com/2021/03/shadow-opinion-of-former-advocate .html. “Switzerland Referendum: Voters Support Ban on Face Coverings in Public.” BBC, 7 March 2021, https://www.bbc.co.uk/news/world-europe-56314173. Witte Jr, John and Pin, Andrea. “Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts.” Emory Law Journal 70, no. 3 (2021): 587–661.

Cases ECtHR, Ahmet Arslan and Others v Turkey, App. No. 41135/98, 23 January 2010. ECtHR, Belcacemi and Oussar v Belgium, App. No. 37798/13, 11 July 2017. ECtHR, Dahlab v Switzerland, App. No. 42393/98, 15 February 2001 (Admissibility ­Decision). ECtHR, Dakir v Belgium, App. No. 4619/12, 11 July 2017. ECtHR, Dogru v France, App. No. 27058/05, 4 December 2008. ECtHR, Ebrahimian v France, App. No. 64846/11, 26 November 2015. ECtHR, Hamidovic v Bosnia and Herzegovina, App. No. 57792/15, 5 December 2017. ECtHR, Handyside v United Kingdom, App. No. 5493/72, 7 December 1976. ECtHR, The Moscow Branch of the Salvation Army v Russia, App. No. 72881/01, 5 October 2006.

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ECtHR, Sahin v Turkey, App. No. 44774/98, 29 June 2004 (Chamber); 10 November 2005, (Grand Chamber). ECtHR, S.A.S. v France, App. No. 43835/11, 1 July 2014. ECtHR, Serif v Greece, App. No. 38178/97, 14 December 1999. ECtHR, Sunday Times v the United Kingdom, App. No. 6538/74, 26 April 1979.



National Instruments

Law No. 2004’228 of 15 March 2004, Journal Officiel No. 65, 17 March 2004, 5190. Law No. 83-634 of 13 July 1983 on the rights and obligations of civil servants. Law no. 2010-1192 of 11 October 2010.



International Instruments

European Convention for the Protection of Human Rights and Fundamental ­Freedoms, 1950.

Other Avis n° 346.893 du Conseil d’Etat - 27/11/1989 - Port du foulard islamique. Conseil d’État, Study of Possible Legal Grounds for Banning the Full Veil, Report adopted by the Plenary General Assembly of the Conseil d’État, 25 March 2010, https://www .conseil-etat.fr/ressources/etudes-publications/rapports-etudes/etudes/etude-­ relative-aux-possibilites-juridiques-d-interdiction-du-port-du-voile-integral. DCO 52 2289/005 Chambre des Représentants de Belgique, Proposition de Loi Visant à Interdire le Port de Tout Vêtement Cachant Totalement ou de Manière Principale le Visage, 9 April 2010, http://www.lachambre.be/FLWB/PDF/52/2289/52K2289005 .pdf. Parliamentary Assembly, Council of Europe, Recommendation 1927, Islam, Islamism and Islamophobia, (2010), http://www.assembly.coe.int/nw/xml/XRef/Xref-XML�2HTML-en.asp?fileid=17881&lang=en. Parliamentary Assembly, Council of Europe, Resolution 1743, Islam, Islamism and Islamophobia (2010), https://pace.coe.int/en/files/17880/html.

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CHAPTER 5

The ‘Non-Religious’ in Religion and Worldviews Education and in the Light of Human Rights Law Paul Weller 1 Between Two Laws: From Christendom Assumptions to Socio-Religious Realities The overall focus of this book is on religious freedom in secular state contexts. The story of the interaction between the distinctive inheritance of historically entangled religion, state and society roots as found in different polities throughout the world, and the emergence of a body of human rights law, policy and practice which aspires to be of universal import and applicability, is one that has been traced and debated across a range of national contexts and thematic foci. This chapter aims to explore the book’s broader theme by a discussion, conducted in the light of international and United Kingdom (UK) human rights law, of developments in England and Wales in relation to the place of the ‘non-religious’1 in the school subject area that, until recently, has generally been known as Religious Education (RE), while the temporal parameters that will frame discussion of the chapter’s central theme are set by two contrasting pieces of legislation. The first was the Education Act 1944, which set the basic parameters for the post-War development in England and Wales of what, at the time, was still called Religious Instruction (RI).2 Although specifying that neither RI nor

1 This word was deliberately chosen as being in contrast to ‘religious’ and is being used here in a way that, just like the word ‘religious’, can serve both as a descriptor of a perspective on life and, when preceded by the definite article, also of those people who live within the framework of such an understanding of life. It is, of course, fully understood that neither the term ‘religious’ nor ‘non-religious’ are without ambiguity and contestation, and also, as will be discussed towards the end of this chapter that, in empirical reality, such binary distinctions are likely to be less sharply differentiated. 2 And also for the formally distinct, but often practically linked with RE and peculiarly B ­ ritish phenomenon of what is known as “Collective Worship.” See Peter Cumper and Alison Mawhinney, eds., Collective Worship and Religious Observance in Schools (Oxford: Peter Lang, 2018). © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_006 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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collective worship should be of what was called a ‘denominational’ character,3 both the Act and its interpretation for many subsequent years reflected what were then common assumptions about the nature of the society and of the place of religion or belief within it as being broadly Christian. Even though at this time, at least among many educationalists, there had been an increasing awareness of the growth both of religious plurality and of religious scepticism, the place and implications of the ‘non-religious’ was not explicitly addressed in the Act, although parents were given the right to withdraw their children from both Collective Worship and RI without needing to specify a reason.4 The second piece of legislation, which was passed almost eighty years later, is the Curriculum and Assessment (Wales) Act, 2021. Due to be ­implemented from September 2022 this includes ‘a change of name’ for RE in Wales to the new name of ‘Religion, Values and Ethics’ (RVE). As a central part of this, alongside greater attention to a wider diversity of religions, for the first time the curriculum will be required to include ‘non-religious beliefs which are philosophical convictions’ such as ‘humanism, atheism and secularism.’5 In explaining this change, the Welsh Government explicitly stated that its statutory understanding of ‘philosophical convictions’ was ‘linked to’ the term within the ­meaning of Article 2, Protocol 1 (see further later in the chapter) of the European ­Convention on Human Rights and Fundamental Freedoms (ECHR). 2

Socio-Religious and Legal Inheritance and Change

In between these two pieces of law and their embodiment of what school curricula for education in relation to religion are expected to teach, have been decades of socio-religious and legal change: globally, in Europe, and in England and Wales. But notions of the ‘secular state’ (which in many ways sit at the interface between the spheres of the social, the religious/‘non-religious’ and the legal) are often all too loosely invoked in popular discourse, journalism and politics in comparison with what is in reality a much greater empirical 3 This relates to RE that, in other European education systems, might be called “confessional”: in other words as conducted from within, and informed by the assumptions of, of a particular Christian tradition such as Lutheran, or Roman Catholic or, in this case, Anglican/Church of England. 4 Today, pupils can withdraw themselves from collective worship after reaching the age of sixteen, but they cannot withdraw themselves from RE without parental consent, until they reach the age of eighteen. 5 Welsh Government, Curriculum for Wales: Summary of Legislation. https://hwb.gov.wales /curriculum-for-wales/summary-of-legislation/#religion,-values-and-ethics.

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complexity than exists in particular and diverse social and political contexts.6 Indeed, in relation to what the current author has elsewhere called the ‘­four-nations-state’7 of the UK, it is questionable how far it can properly be described as a ‘secular state.’ On the one hand, there is no ‘state Church’ in the way, for example, that the Lutheran Church in Denmark is such. However, by virtue of its ‘establishment’ in law, the Church of England does embody a form of what might be called a ‘special relationship’ with England,8 and also the UK state. A classical expression of a very ‘organic’ view of this relationship was articulated by the seventeenth century Anglican theologian Roger Hooker who, in Book 8 of his Of the Laws of Ecclesiastical Polity argued that: ‘There is not any man of the Church of England who is not also a member of the Commonwealth, nor any member of the Commonwealth who is not also of the Church of England’.9 This left no room for religious diversity and gave shape to an historical heritage that, despite the legal reforms of the nineteenth century,10 means that the Church of England still remains a part of what the constitutionalist Peter ­Hennessy has called ‘the hidden wiring’ of the constitution.11 At the same time, any reality that may once have informed Hooker’s view of this special relationship has, especially since the end of the Second World War, been severely eroded. This erosion has taken place, on the one hand, through the impact and implications of deep processes of secularisation that accelerated in the 1950s and early 1960s, and eventually led to what Callum Brown has called ‘The Death of Christian Britain’;12 and on the other due to the impact and implications of the inward migration of significant numbers of migrants and refugees of other than Christian – and especially Muslim, Hindu, Sikh and Buddhist - religious heritage. The overall result of this has been that the contemporary socio-religious landscape of England and Wales is composed of 6 7 8 9 10 11 12

John Madeley and Zolt Enyedi, eds., Church and State in Contemporary Europe: The ­ himera of Neutrality (London: Frank Cass, 2003). C Paul Weller, Time for a Change: Reconfiguring Religion, State and Society (London: T. & T. Clark, 2005), 73. Even though, in Scotland, the (Presbyterian) Church of Scotland has a special relationship with the Monarchy and has often, at least historically, been seen as a ‘national Church’ there. See Peter Bisset. The Kirk and Her Scotland (Edinburgh: Handsel, 1986). Roger Hooker [1648], Of the Laws of Ecclesiastical Polity (Arthur McGrade, ed). (­Cambridge: Cambridge University Press, 1989), 130. Paul Weller, ‘Religious Minorities and Freedom of Religion or Belief in the UK,’ Religion and Human Rights: An International Journal 13, No. 1 (2018): 76–109. Peter Henessy, The Hidden Wiring: Unearthing the British Constitution (London: Victor Gollancz, 1995). Callum Brown, The Death of Christian Britain: Understanding Secularisation, 1800–2000 (Abingdon: Routledge, 2002).

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what the present author has elsewhere called “three-dimensional” contours that are becoming ever more clearly “Christian, secular and religiously plural”,13 some of the key implications of which for the development of RE in the same period will be explored in more detail in the next section of the chapter on ‘Religious Education and its historic Christendom moorings.’ In parallel with this period of socio-religious change has been one also of legal change. The end of the Second World War and the construction of the international order that followed it marked a watershed both in articulating, and in developing on an international level, mechanisms for the enforcement of what were to be promoted as ‘universal’ human rights, including that of ­religious freedom. Thus, Article 18 of the United Nations’ 1948 Universal ­Declaration of Human Rights affirmed that ‘everyone has the right to freedom of thought, conscience and religion,’ while Article 9 of the Council of Europe’s 1950 European Convention on Human Rights (ECHR) brought these same rights into operation across the state parties of Europe with the European Court of Human Rights (ECtHR), based in Strasbourg, being set up to act in the legal enforcement of these rights. The jurisprudence of the ECtHR around freedom of religion or belief, albeit constrained by the qualifications to those rights also contained within ­Article  9,14 developed into quite a rich seam,15 including in relation to the place of the ‘non-religious.’ However, during most of the four decades that followed, in the UK it was only possible for individuals practically to avail themselves in law of these rights once potential domestic legal remedies had been exhausted. But with the coming into force of the Human Rights Act 1998 these rights were incorporated into UK law as positive rights, so that from 2 ­October 2000 onwards, individuals in the UK engaged in legal proceedings against ‘public authorities’ could formally rely on these rights in domestic courts and tribunals prior to any need to appeal to the Strasbourg court. With the passage into law in the UK of the Employment Equality (­Religion or Belief) Regulations 2003, these rights became more clearly linked also with domestic law relating to equality and discrimination. Further, the domestic jurisprudence associated with the Regulations (which have since been 13 14

15

Weller, Time for a Change, 73. viz: “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.” For a current summary of the case law see Council of Europe, Guide on Article 9 of the European Convention on Human Rights Freedom of Thought, Conscience and Religion. Updated on 31 August 2021. (Strasbourg: Council of Europe, 2021), https://echr.coe.int /Documents/Guide_Art_9_ENG.pdf.

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superseded by the comprehensive legislative framework for equality and human rights created by the Equality Act 2006, and then updated and further extended in the Equality Act, 2010) started to spell out more explicitly their scope in relation to the ‘non-religious’ in ways that will be explored in more detail in the next section but one of this chapter on ‘Definitional and Developmental Parallelism in Law and RE?’ 3 Historic Christendom Moorings and Inclusion of the ‘Non-Religious’ in RE Having previously noted the continuing significance of the Church of ­England’s heritage as an established Church, beyond the more strictly constitutional points of intersection between the Church of England and the state, it is significant for the focus of this chapter that schools of Church of England character and with public funding had a foundational role within the historical development of the overall modern education system in England and Wales.16 Today, what are generically called ‘Faith schools’, in order to reflect that there are now not only Church schools of Anglican and Catholic Christian traditions, but along with a small number of Jewish schools, also Muslim, Hindu and Sikh ones, can, within the law, have their own admissions criteria and staffing policies. However, they must follow what is now the National Curriculum (which does not include RE, although it is a statutorily required subject), but they are free to choose what to teach in relation to religion. Contrastingly, ‘Faith academies’ have their own admissions processes and do not have to teach the National Curriculum.17 There are, perhaps not surprisingly, many among the ‘non-religious’ who, in principle, argue against schools of this kind. Thus, for example, the National Secular Society sponsors a campaign on ‘No More Faith Schools’,18 which argues that such schools privilege religions; are socially divisive; and undermine the human rights of the ‘non-religious.’ At the same time, many of those who support such schools also do so with reference to human rights. Indeed, often cited in support of ‘Faith schools’ is Article 2 of Protocol 1 of the ECHR, which states that: ‘In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to 16 17 18

James Murphy, Church, State and Schools in Britain, 1800–1970 (London: Routledge and Kegan Paul, 1971). See Gov.uk. Types of Schools. https://www.gov.uk/types-of-school/faith-schools. No More Faith Schools. https://www.nomorefaithschools.org/.

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ensure such education and teaching is in conformity with their own religious and philosophical convictions.’ Interestingly, this was also (as noted in the opening section of this chapter) the part of the ECHR cited by Welsh Government in support of its change of name for the subject area to RVE and its new requirement to include the ‘non-religious’ in future RVE curricula in Wales. Contemporary debates around such matters tend to be constructed on the basis of an expectation that those who are personally religious will almost inevitably support Faith schools, while those who are against them are likely to be at least ‘non-religious,’ if not anti-religious. However, it is important to understand that in England and Wales, historically, there were quite substantial bodies of religious opinion and conviction that were opposed to public funding of schools of religious foundation as well as to their incorporation into the national system on the grounds that this was what nineteenth century critics saw as promoting ‘denominational teaching on the rates.’ For example, the Baptist Union took a stand against the Elementary ­Education Bill 1870 which proposed giving state financial subsidies to existing voluntary (largely Church of England) schools, seeing this as an extension of privilege to one denomination, and therefore as potentially undermining the freedom of conscience of non-Anglican schoolchildren and their parents. Indeed, when initial proposals were made for what eventually became the Education Act 1902, the leading Baptist minister John Clifford (who later became President of the Baptist World Alliance) launched the National Passive Resistance Committee against the payment of public rates to subsidise Church schools. And because of this, on several occasions his possessions were confiscated, while some other Free Church Christians were sent to prison for their conscientious stance. Historic positions such as these pre-dated the articulation of modern human rights law on of the ‘freedom of thought, conscience and religion.’ They were rooted in what might be called the ‘values DNA’ of the Free Church (and especially Baptist) traditions of Christianity which, on theological and ecclesiological grounds, advocated for the rights of individual freedom of religion and conscience; the separation of religion and state; and the ending of religious privilege.19 Today, pragmatism about the major role played in English education by Church of England schools (where it has over four thousand schools), and particularly at primary level (where it has also almost a quarter of all primary

19

Timothy Larsen, Friends of Religious Equality: Nonconformist Politics in Mid-Victorian England (Woodbridge: The Boydell Press, 1999).

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schools),20 combined with the stake in this system now achieved by schools of other than Christian religious minorities, means that there are now few religious voices prepared publicly to argue for unpicking this interwoven heritage. Indeed, when in 1982, the organisation Christians Against Racism and Fascism published a small discussion paper questioning the continuation of Church schools because it saw such as reinforcing inequity in a society in which, at the time, there were no similar Muslim, Hindu and Sikh schools,21 it was met with a storm of criticism. Overall, then, despite the Christendom roots of religiously-based schools and also of the kind of RE found in schools more broadly across England and Wales in the immediate wake of the Education Act 1944, in that Act’s provision for parents to be able withdraw their children, one can see the impact of the historic Free Church campaigns in support of freedom of religion and conscience; while in the Act’s negative insistence that the content of RI must not be ‘denominational’, one can see modification of assumptions around the existence of an ‘organic’ Anglican Christendom culture. Other than those with a specific religious foundation, ethos and governance, publicly funded schools and academies have no detailed curriculum content legally prescribed for RE except that it should not be ‘denominational’ in character, and in keeping with broad requirements of relevant Education Acts. While (see further below) national curricula frameworks and models have increasingly since 1944, been produced as reference points for good practice, the specific content of RE curricula have continued formally and legally to be shaped locally through what are known as Agreed Syllabus Conferences (ASCs). Since the Education Reform Act 1988, Standing Advisory Councils for Religious Education (SACREs), which had previously existed in a number of local authorities, also became a legal requirement.22 ASCs are composed of four Committees which must reach agreement on the content of their locally agreed syllabus. In England, reflective of the special position of the established Church of England, one of these Committees is 20 21 22

The Church of England. Church Schools and Academies. https://www.churchofengland .org/about/education-and-schools/church-schools-and-academies. Christians Against Racism and Fascism, Church Schools in a Multi-Faith Society (Coalville: Christians Against Racism and Fascism, 1982). SACRE s oversee the implementation of the locally agreed curricula but are also responsible for making “determinations” in relation to what, also under the 1988 Act, became statutory requirements for the majority of acts of Collective Worship to be of a “broadly Christian” character. See Julie Grove, “Agreed Syllabuses, SACREs and Their National Association” Brian Gates, ed., Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England (Tübingen: Mohr Siebeck, 2016), 35–57.

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exclusively composed of Church of England representatives. Another consists of local authority nominees; another of professional teachers; and the final one of representatives from other Christian traditions and other than C ­ hristian religions. This is to reflect the principal traditions of the local area concerned, with similar composition of SACREs. From the 1960s onwards, the aims, content and approaches of RE in ­England and Wales have been the subject of an enormous amount of discussion, debate and development.23 The vast majority of these developments have focused more on the explicit inclusion of a wider range of religions than on the position of the ‘non-religious’ in the curriculum.24 In terms of the changes that have occurred over the whole of the period under review in this chapter, it is arguable that the principal motivating forces have come from a combination of, on the one hand, pedagogical reflection among teaching professionals about the impact on RE of social (especially ethnic and religious) change; and on the other hand, from increasing demands on the part of minority religious parents, communities and other groups (including humanists) for their religions and beliefs to be reflected in RE curricula, and a gradually increasing recognition of these demands by local authorities. By the time of the Education Reform Act 1988, it was clear that the assumptions of the 1944 Act no longer reflected the socio-religious reality. This was through a combination of a numerically and culturally declining Christianity; a continuing rise in the secular; and the increase in religious plurality, especially through the inward migration of significant numbers of people of other than Christian religious heritage. In partially recognising this changed religious landscape, the new Act specified that, while RE syllabi should continue to ‘reflect the fact that the religious traditions in Great Britain are in the main Christian’, they should now also do so ‘whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.’ With regard to these key principles, it will be seen that the second of what this author argues are the ‘three dimensions’ of the current socio-religious reality of England and Wales – namely that of the secular or ‘non-religious’ – was notable by its absence. Impacting on the subsequent speed and spread of change in the direction of incorporating the ‘non-religious’ into RE curricula have been the dynamics arising from the representation or otherwise of the ‘non-religious’ in ASCs 23 24

Brian Gates, ed., Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England (Tübingen: Mohr Siebeck, 2016). Paul Weller, “The Emerging Inter-Faith Context in Society and Religious Education,” in ed. Brian Gates, Religion and Nationhood, 205–28.

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and SACREs. One early and historic example of a curriculum that did take specific account of humanism was Birmingham City Council’s original 1975 curriculum,25 which was developed by an ASC that included a humanist representative. This was also the first local curriculum explicitly to include the teaching of other than Christian religions. Its original version also included throughout reference to ‘stances for living’ covering both religious and ‘nonreligious’ philosophical perspectives on life. However, the original version of the curriculum was in the end never taught following a reactive backlash against it led by the then Church of England Bishop of Birmingham and in the light of which, informed by legal advice on the RI requirements of the 1944 Education Act, a new ASC was convened and the original curriculum, including especially its inclusivity towards ‘non-religious’ perspectives, was replaced. In response to this, the British Humanist Association published a booklet called ‘Objective, Fair and Balanced,’26 which became quite influential in how RE later developed. However, all the time that there remained a gap between the provisions of international law and national legislation in relation to the ‘non-religious,’ progress on inclusively incorporating the ‘non-religious’ into RE curricula was slow and when progress was made, it was also sometimes reversed. But with the introduction into domestic law of the Human Rights Act 1988, of which section 3 stated that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights’, an important lever was provided on the basis of which the British Humanist Association and others were able to argue that, ‘the Act therefore the put the law and the statutory guidance at odds with one another.’27 In relation to the potential for fruitful touchpoints between human rights perspectives on (especially) ‘non-religious’ belief and how this might engage with RE, one might note Robert Jackson’s work within the Council of Europe.28 Since 2008, in its work with member states on intercultural e­ducational 25 26 27 28

Birmingham City Council, Agreed Syllabus of Religious Instruction (Birmingham: ­ irmingham City Education Committee, 1975). B British Humanist Association, Objective, Fair and Balanced (London: British Humanist Association, 1975). Richy Thompson, “A Humanist Perspective”, Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England, ed. Brian Gates, Tübingen: Mohr ­Siebeck. 2016, 183. Robert Jackson, “The Development and Dissemination of Council of Europe Policy on Education about Religions and Non-Religious Convictions, Journal of Beliefs and Values 35, No. 2. 2014, 133–43.

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approaches that are consistent with the values of the EHRC, through an agreed policy recommendation the Council of Europe’s Committee of Ministers (composed of the Foreign Ministers of all its member states), the Council has integrated the ‘non-religious’ into its approach under the terminology of ‘nonreligious convictions.’29 While such recommendations can help in focusing attention on and motivating appetite for the need for equitable inclusion of the ‘non-religious’ in RE curricula as a manifestation of human rights, recommendations of this kind alone have historically not been sufficient to bring about the necessary change of perspective either at the level of national ­government’s overall approach, or at the more granular level of specific ­curriculum development as taken forward by ASCs and SACREs. Thus, until the Welsh Government’s radical and innovative adoption of RVE in its new curriculum for Wales the existence of the previously identified conflict in principle between human rights perspectives on ‘religion or belief’, and the outworking of its implications in relation to the existing statutory guidance on RE, was inconsistent in its effects when it came to the position of the ‘nonreligious.’ In Wales, change became possible due to the Welsh Government’s devolved responsibilities for education which enabled it in this, as in other matters, to differentiate itself from approaches taken in England (on which, see further below in this section of the chapter). In England, at least part of the reason for this inconsistency, relates back to the previously noted structural composition of ASCs and SACREs and the impact of that on the inclusion or otherwise in these of voices that represented humanist perspectives. In a 2010 article on the process of ‘Including Secular P ­ hilosophies Such as Humanism in Locally Agreed Syllabuses for ­Religious Education,’ Jaqueline Watson cites the findings of a 2007 survey that she undertook and which included results for eighty out of one hundred and fifty-one possible Local Authorities (LA). Of these 80 LAs eighty-one per cent ‘included secular philosophies such as humanism in their syllabus in some form’ (among which nine did so ‘extensively’, including four where ‘humanism was compulsory at some key stages’). In thirty LA s (including some that shared the same syllabus), ‘humanism was referred to explicitly but less strongly, including some where it was only briefly mentioned.’ In twenty-six LAs, syllabuses ‘referred explicitly to secular worldviews but not to humanism.’30 In 29

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Council of Europe. Recommendation CM/Rec (2008) 12 of the Committee of Ministers to Member States on the Dimension of Religions and Non-Religious Convictions within Intercultural Education. Strasbourg: Council of Europe, 2008. https://search.coe.int/cm/Pages /result_details.aspx?ObjectID=09000016805d20e8. Jaqueline Watson, “Including Secular Philosophies Such as Humanism in Locally Agreed Syllabuses for Religious Education,” British Journal of Religious Education 32, No. 1 (2009): 6. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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nineteen per cent of responding LAs, respondents reported no reference to secular worldviews. In commenting on these research findings, Watson noted that more inclusive developments in relation to the ‘non-religious’ had been hindered partly by the fact that some ASCs and SACREs started to exclude humanists from being full members based on a legal interpretation contained in a Department for Education circular,31 allowing them to be only observers or co-optees rather than full voting members. Nevertheless, in due course, a number of English local authorities, especially in London, increasingly developed the curricula to take account of the ‘non-religious.’ While the Birmingham syllabus had referred to ‘stances for living’ as its inclusive descriptor for both the religious and the ‘non-religious,’ among other later local curricula that sought to take account of the ‘non-religious,’ and also within national guidance documents and model curricula produced from within the professional RE sector, the concept of ‘worldview(s)’ was increasingly adopted. Etymologically, the English word ‘worldview’ derives from the German word Weltanschauung which, as with many German words, is a compound of Welt (world) and Anschauung (perception). The first appearance of the original German word was in Kant’s 1790 ‘Critique of the Power of Judgement’,32 but its use was further developed by Wilhelm Dilthey, who used the term to differentiate what he saw as the philosophical task from what he argued were the much more discrete ways of looking at the world associated with the emergent modern sciences (Wissenschaften). For Dilthey, ‘worldviews’ included also the emotions and reflected the possibility of achieving a more wholistic approach to understanding than what he believed was possible starting from particular scientific methods.33 By the time of the Religious Education Council for England and Wales’ (REC) 2003 ‘A Curriculum Framework for Religious Education in England’, the word ‘worldview/s’ appeared one hundred times across a report of thirtytwo ­pages.34 In terms of official government approaches, in 2004, ‘Religious 31 32 33 34

Department for Education, Circular Number 1/94. Religious Education and Collective ­Worship (London: Department for Education, 1994), para. 104, Microsoft Word - circular 1-94 final.doc (educationengland.org.uk). Immanuel Kant [1790], Critique of the Power of Judgement. ed. Paul Guyer, trans. Paul Guyer and Eric Matthews (Cambridge: Cambridge University Press, 2000): 1.2.26. Dilthey, Wilhelm [1911], “The Types of World-View and Their Development”, in W ­ illiam ­Dilthey: Selected Works, Volume VI: Ethical and World-view Philosophy, eds. Rudolf M ­ akkreel and Fritjhof Rodi (Princeton: Princeton University Press, 2019), 249–94. Religious Education Council for England and Wales. A Curriculum Framework for Religious Education in England. October 2013. (London: Religious Education Council for England and Wales), https://www.religiouseducationcouncil.org.uk/wp-content/uploads/2017/09/RE _Review_Summary.pdf. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Education: The Non-Statutory Framework’, issued by the Qualifications and Curriculum Authority/Department for Education and Science innovatively recommended that ‘secular philosophies such as humanism’ (as well as a wider range of religious traditions), should be included at all four ‘Key Stages’ of locally agreed RE curricula in England.35 At the same time, having stated this, within the fifty-one pages of the report overall, it did not go on to provide detailed examples or guidance on how this might be done. By the time of the publication of the Department for Education, Schools and Families’ ‘Religious Education in English Schools: Non-Statutory Guidance 2010’36 its section on ‘Breadth and Depth in the Agreed Syllabus’ noted that, in addition to meeting the legal requirements relating to Christianity and the principal world religious ­tradition, RE could, ‘where appropriate’, be extended also to ‘other religious traditions and worldviews’. But again, the word ‘worldview(s)’ appeared only twice across the whole of this government document of forty-six pages. Through these indicative examples of the use of ‘worldviews’ one can see that, in contrast with documents generated from within the professional RE sector, those produced by government were paying considerably less attention to the ‘non-religious’ dimension within RE until the major legal change brought about by the Welsh Government’s new ‘Curriculum for Wales’. Prior to that, the most significant high-water mark in the increasing attention given to the place of the ‘non-religious’ in RE curricula in England and Wales had been (again, the non-governmental) Commission on Religious Education’s ‘Final Report. Religion and Worldviews: The Way Forward. A National Plan for RE.’37 As a comparative indicator, this report included three hundred and twenty mentions of ‘worldview(s).’ In more substantive terms, it recommended that, in reflecting what it called a ‘new and richer vision of the subject,’38 the name of the subject should be changed from ‘Religious Education’ to that of ‘Religion and Worldviews.’39 Having recognised and considered other possible options, 35 36

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Qualifications and Curriculum Authority/Department for Education and Science, ­ eligious Education: The Non‐Statutory National Framework (London: Qualifications and R Curriculum Authority, 2004), 12, http://www.mmiweb.org.uk/publications/re/NSNF.pdf. Department for Children, Schools and Families, Religious Education in English Schools: Nonstatutory Guidance 2010 (London: Department for Children, Schools and F­ amilies, 2010). https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/190260/DCSF-00114-2010.pdf. Commission on Religious Education, Final Report. Religion and Worldviews: The Way ­Forward. A National Plan for RE (London: Commission on Religious Education, 2018), https://www.commissiononre.org.uk/wp-content/uploads/2018/09/Final-Report-of-theCommission-on-RE.pdf. Commission on Religious Education, Final Report. Religion and Worldviews, 3. Commission on Religious Education, Final Report. Religion and Worldviews, 3.

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the Commission had judged that, overall, that the term ‘worldview’ offered ‘the best available catch-all term to describe both religious and non-religious approaches to life.’40 In addition, it offered what might be called its own ‘working definition’ of ‘worldview’ as being a person’s: …way of understanding, experiencing and responding to the world. It can be described as a philosophy of life or an approach to life. This includes how a person understands the nature of reality and their own place in the world. A person’s worldview is likely to influence and be influenced by their beliefs, values, behaviours, experiences, identities and commitments.41 However, although the Commission represented a very wide consensus from across a broad range of institutional, religious and professional interest groups, the then Secretary of State for Education, Damian Hinds MP, rejected its proposal for a name change for the subject in England. In doing so, he referred to correspondence from what he described as ‘some stakeholders’ who ‘have concerns that making statutory the inclusion of ‘worldviews’ risks diluting the teaching of RE.’42 Those who had such concerns included the Catholic Education Service (that has a significant stake in secondary school education) and which referred to what it called ‘this contentious redefinition of Religious Education,’ arguing that, ‘the proposed name change to include ‘worldviews’ means that the scope of the subject is now so wide and nondescript that it would potentially lose all academic value and integrity.’43 The then Vice-President of the Board of D ­ eputies of British Jews, Edwin Shuker articulated similar concerns and, additionally, argued that, ‘this might be seen as an attempt by those hostile to

40 41 42

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Commission on Religious Education, Final Report. Religion and Worldviews, 31. Commission on Religious Education, Final Report. Religion and Worldviews, 4. Damian Hinds, Secretary of State for Education. Letter to Very Revd. Dr. John Hall, Chair of the Commission on Religious Education. https://www.religiouseducationcouncil.org .uk/wp-content/uploads/2018/12/Letter-to-The-Very-Reverend-Doctor-John-Hall-fromRt-Hon-Damian-Hinds-MP...-1.jpg and https://www.religiouseducationcouncil.org.uk /wp-content/uploads/2018/12/Letter-to-The-Very-Reverend-Doctor-John-Hall-from-RtHon-Damian-Hinds-MP...-2.jpg. Catholic Education Service, “Catholic Education Service Response to the Commission on Religious Education Report” (London: Catholic Education Service, 2018). 10.9.2018, https://www.catholiceducation.org.uk/schools/religious-education/item/1003658-­ catholic-education-service-response-to-the-commission-on-religious-education-report.

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faith to push their agenda of undermining rigour in religious education at a time when faith literacy could not be more important.’44 The Commission’s recommendations were therefore not able to progress further in England. However, when the Welsh Government’s consultative proposals on the development of new ‘Curriculum for Wales’ were published, they (originally) advocated that in Wales the subject area of RE should be renamed as ‘Religions and Worldviews’.45 However, after a range of those ­consulted (including, see further below in the following section of this chapter, the REC) expressed concerns, as noted at the beginning of this chapter, the ­subject area in Wales is now to be called ‘Religion, Values and Ethics,’ with the Welsh ­Government’s website explaining that this ‘reflects the expanded scope of ­religious education (RVE)’ and ensures that ‘the legislation itself is clear that RVE includes non-religious philosophical views.’ It furthermore noted that section 71 of the Act ‘makes it explicit’ that, in future, any agreed syllabus for RVE in Wales ‘must reflect both religious beliefs and also non-religious beliefs which are philosophical convictions’ within the above meaning, while going on to refer to ‘examples of the sort of beliefs that are within scope’ as being inclusive of such as ‘humanism, atheism and secularism.’46 4

Definitional and Developmental Parallelism in Law and RE?

Just as this chapter as a whole is framed by consideration of two key pieces of legislation that dealt with the curriculum content of RE, this section of the chapter is framed by reference to two key documents: the first was a report published by the Equality and Human Rights Commission on ‘Religion or Belief’: Identifying Issues and Priorities;47 while the second was a literature review on 44 45

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Edwin Shuker, “Commission on RE Report is Fundamentally Flawed.” Statement. 18.12.2018 (London: Board of Deputies of British Jews, 2018). Welsh Government, Consultation on Proposals to Ensure Access to the Full Curriculum for all Learners, WG39139, October 19th (Cardiff: Welsh Government, 2019), np. Overview, https://gov.wales/sites/default/files/consultations/2019-10/consultation-document-­ ensuring-access-to-the-full-curriculum_0.pdf. Welsh Government. Curriculum for Wales: Summary of Legislation. https://hwb.gov.wales /curriculum-for-wales/summary-of-legislation/#religion,-values-and-ethics. Linda Woodhead with Rebecca Catto, ‘Religion or Belief’: Identifying Issues and Priorities, Equality and Human Rights Commission Research Report No. 48 (Manchester: Equality and Human Rights Commission, (2009), https://www.equalityhumanrights.com/sites /default/files/research-report-48-religion-or-belief-identifying-issues-and-priorities_0.pdf

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‘WORLDVIEW: A Multidisciplinary Report’,48 that was commissioned by the REC working in partnership with TRS-UK.49 Woodhead with Catto’s ‘Religion or Belief’ report was produced at a pivotal time in the development of UK law in this area. Published ahead of the anticipated passage of the Equality Act 2010, on the basis of being informed by relevant expert input, the report was intended to help inform a better understanding and also some practical ways forward for implementing that had otherwise, at the time, been (outside of the specific and particular context of Northern Ireland) a relatively new area of legal theory and practice in the UK following the passage of the Human Rights Act 1988; the Employment Equality (Religion or Belief) Regulations 2003; and the Equality Act 2006 and their linkage of ‘religion or belief’ with matters of human rights, discrimination and equality. Of course, prior to the development of this in the UK, the ECHR had itself given birth to a new body of international jurisprudence through the ECtHR in which, as early as in which the 1978 case of Arrowsmith v UK, the ‘non-religious’ ethical and philosophical position of pacifism had already been accepted as coming within the ambit of Article 9 rights. But as EHRC rights became more directly translated into the British context via the provisions of the Human Rights Act 1988, as argued by the present author and co-authors in their book on ‘Religion or Belief, Discrimination and Equality: Britain in Global Contexts’: …because of equality and human rights laws that relate to religion or belief, a new legal and conceptual space has been created within which the category of belief can apply to those with no religion, but who also live by reference to specific philosophical and/or ethical perspectives and values.50 Indeed, over time, the evolving case law in England and Wales not only echoed the European approach of relative inclusivity in relation to the definition 48

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Céline Benoit, Timothy Hutchings and Rachael Shillitoe, WORLDVIEW: A Multidisciplinary Report (London: Religious Education Council of England and Wales, 2021), https://www .religiouseducationcouncil.org.uk/wp-content/uploads/2020/10/20-19438-REC-Worldview-Report-A4-v2.pdf. Theology and Religious Studies UK (TRS-UK). https://trs.ac.uk/. It is described on this website as, “the Professional Association for Departments, Units and Subject Associations of the Study of Religion and Theology in the UK.” Paul Weller, Kingsley Purdam, Nazila Ghanea and Sariya Cheruvallil-Contractor, Religion or Belief, Discrimination and Equality: Britain in Global Contexts (London: Bloomsbury, 2013), 9.

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of what might be called ‘non-religious’ beliefs and convictions, but arguably stretched it even further.51 This development occurred especially around the provisions of the 2003 Employment Equality (Religion or Belief) Regulations, the key terms of which initially used referred to ‘religion, . . . religious belief, and . . . similar philosophical belief.’ However, in the context of the further development of integrated equalities law, with the adoption of the Equality Act 2006 the approach to belief that was not religious was modified by addition of a specific reference to lack of belief, while the word ‘similar’ was removed in order that philosophical belief should not be seen as a kind of deficit version of religion or religious belief. Of particular importance in this whole evolutionary pathway was the case of Grainger PLC v. Nicholson, 2009. This addressed the question of belief in relation to the issues arising from humanly created climate change, the ­environment and resulting moral imperatives in which an employment appeal tribunal accepted such a philosophical belief as being of a similar cogency or status as religious belief and as therefore falling within the purview of the 2003 Regulations. This case was important not only because of its outcome, but also because in arriving at its decision the employment tribunal articulated a ­number of criteria that were necessary for a belief to meet if it were to be recognised and applied within the context of human rights law, including that the belief in question must: …be genuinely held; be a belief and not an opinion or viewpoint, based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others. The second of the two key documents that frame this part of the chapter is Benoit, Hutchings and Shillitoe et al’s literature review on the concept of ‘worldview.’52 This was commissioned in the light of the fact that, although Commission on Religious Education found the word ‘worldview’ to be ‘the best 51

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Peter Edge and Lucy Vickers, Review of Equality and Human Rights Law Relating to Religion or Belief, Equality and Human Rights Research Report No. 97 (Manchester: Equality and Human Rights Commission, 2015), https://www.equalityhumanrights.com/sites/default /files/research-report-97-review-of-equality-and-human-rights-law-relating-to-­religionor-belief.pdf. Benoit, Hutchings and Shillitoe, WORLDVIEW, 5.

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fit for the shifts in practice that the Commission is advocating,’ in arriving at that position it had recognised that the concept of worldview’ is still ‘not perfect and is contested’.53 Indeed, as already touched on briefly towards the end of the previous section of this chapter, illustrative of some of the considerable variations, tensions and even conflicts that have arisen within the broad field of RE around the intention and/or potential perception of a concept such as ‘worldview(s)’ were the debates that ensued around the Welsh Government’s original October 2019 consultative proposal on the ‘Curriculum for Wales’ to change the name of RE to that of ‘Religions and Worldviews’.54 Just as in the context of human rights law, where the ‘belief’ of ‘religion or belief’ has, for many, often come to be particularly associated with the ‘nonreligious,’ so also in the discussion about RE, the concept of ‘worldview(s)’ has sometimes become a kind proxy term for ‘non-religious’ and, the REC’s Chief Executive, Rudolf Elliot Lockhart saw the original Welsh proposals as encouraging a contrast between ‘worldviews’ and ‘religions.’ This, he contrasted with the Commission on Religious Education’s approach which had stated the term ‘worldview(s)’ was chosen it because, in its view, it offered ‘the best available catch-all term to describe both religious and ­non-religious approaches to life’,55 while Lockhart himself argued that the Commission’s approach offers ‘a more inclusive integration of the religious and the non-religious.’56 In addition, as well as arguing against such a clear bifurcation between ‘religions’ and ‘worldviews’, the REC also expressed what it called it ‘serious reasons for concern’ about the use of the plural ‘religions’ rather the singular ‘religion’ in the original Welsh Government proposals, with Lockhart again commenting that: ‘ ‘Religions’ describes a set of content to be studied’ whereas the Commission on Religious Education’s proposed use of ‘religion’ offered a ‘higher-order conceptual approach’ which also enabled a ‘greater conceptual sophistication.’ In reviewing the concept of ‘worldview(s),’ including its contestations within the field of RE, Benoit et al’s review explained that, in addition to RE specifically, it had taken account of some other literatures, including especially 53 54 55 56

Commission on Religious Education. Final Report. Religion and Worldviews, 31. Welsh Government, Consultation on Proposals to Ensure Access to the Full Curriculum for all Learners. Commission on Religious Education. Final Report. Religion and Worldviews, 31. Religious Education Council for England and Wales, Welsh Government Proposal to Change the Name of RE and Remove the Right of Withdrawal. 4.10.2019. https://www .­religiouseducationcouncil.org.uk/news/welsh-government-proposal-to-change-thename-of-re-and-remove-the-right-of-withdrawal/.

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those from philosophy, anthropology, sociology, religious studies, Christian theology and Biblical studies, which the authors saw as having ‘the greatest engagement with the concept of ‘worldview’ and the greatest relevance to contemporary RE.’ And, indeed, alone from within the literature that relates most closely what has traditionally been called RE, the review gave insight into what has been a significant history of lively debate, some of which prefigured the above debates around the Welsh Government’s original proposals for a new name for the subject and the REC’s response to that. The Benoit et al review noted that the respected parent of ‘Religious Studies’ in the UK, Ninian Smart, adopted use of the English word ‘worldview’ in his work, although somewhat hesitatingly and grudgingly describing it as ‘the briefest, least bad’ English translation of Weltanschauung, given that the English word did not really manage to reflect the ‘mix of theory and value, of belief and feel, of faith and rite’ which belong to both religions and ideologies.57 Despite this, Smart was an early advocate of reconstructing the study of religion as part of a broader field of ‘Worldview Studies’. Within the broader field of RE, Benoit et al cited discussions including those of van der Kooij, de Ruyter, and Miedema who argued that ‘worldview’ is a useful concept in what has traditionally been called Religious Education because of its ‘encompassing’ character. It includes religious and secular views; a distinction between organized and personal worldviews; and enables the asking of existential questions.58 The review also noted the same authors’ 2013 article ‘Worldview ‘which distinguishes between ‘organized worldviews’ - which are more or less established systems with a group of believers; and what might be called ‘personal worldviews,’ which reflect individuals’ views on life and humanity.59 At the same, the review tried to take note also of more critical discussions of the concept, including from particular Christian perspectives such as those of Schultz and Swezey who, in 2013, published an article which they describe as one that ‘investigates the concept of worldview from an Evangelical Christian

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Ninian Smart, “The Philosophy of Worldviews – That is, the Philosophy of Religion ­Transformed,” Neue Zeitschrift für systematische Theologie und Religionsphilosophie 23, No. 1 (1981): 212–224 (214). See Jacomijn van der Kooij; Dorit de Ruyter and Siebren Miedema, “The Merits of Using ‘Worldview’ in Religious Education”, in Religious Education 112, No. 2 (2017): 172–184. See Jacomijn van der Kooij, Dorit de Ruyter, and Siebren Miedema, “ ‘Worldview’: The Meaning of the Concept and the Impact on Religious Education,” Religious Education 108, No. 2 (2013): 210–28.

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perspective.’60 The authors highlighted that ‘scripture does not use the term’, while also noting that ‘various writers have defined the term with language that is Biblically relevant’. The literature review did, to some degree, also go beyond the previously mentioned disciplines to give attention to the use of ‘worldview(s)’ in literature from linguistics, psychology and politics. But interestingly and significantly for the focus of this chapter, it does not seem to have engaged in any substantive way with the disciplinary field of human rights law and practice. Of course, it might be argued the omission was because the field of human rights law and practice has not made significant use of the specific terminology of ‘worldview.’ The review did, however, take note the existence of what it called ‘synonyms’ for ‘worldview.’61 Terminologies noted from among bodies concerned with RE included the already noted original Birmingham City Council’s use of ‘stances for living’;62 Ofsted’s use of ‘belief system’;63 and ‘outlook on life’ as used by the Swedish National Agency for Education.64 Finally, along with noting a wide range of terminologies used by individuals from both within the beyond the field of RE, the review did make reference to the concept of ‘(non-religious) convictions’ as used by the Council of Europe;65 while also noting that of ‘beliefs’ as used in the Equality Act 2010. In both cases these were, however, little more than en passant mentions. Finally, Even though the Woodhead with Catto report on ‘religion and belief’ was produced by scholars in the study of religion (although not of RE, specifically) rather than by legal scholars, the Benoit et al report did not reference it at all. Equally, Woodhead with Catto’s report on the development of broader human rights and equality law, policy and practice in relation to belief (and religion), did not include the world ‘worldview(s)’ nor did it reference RE’s history of engagement with the concept of the ‘non-religious’ as outlined in this chapter. At the same time, while noting that, ‘there is no hard and fast boundary between ‘religion’ and ‘belief’, both refer to orientating commitments which 60

Katherine Schultz and James Swezey, “A Three-Dimensional Concept of Worldview”, The Journal of Research on Christian Education 22, No. 3 (2013): 227–43. 61 Ibid. 62 Birmingham City Council, Agreed Syllabus of Religious Instruction. 63 Ofsted, Transforming Religious Education: Religious Education in Schools, 2006–2009 (­London: Ofsted, 2010): 44, https://dera.ioe.ac.uk/1121/1/Transforming%20religious%20 education.pdf. 64 Skolverket, Curriculum for the Compulsory School, Preschool Class and School-age Educare (2018): 218, https://www.skolverket.se/getFile?file=3984. 65 Council of Europe, Recommendation CM/Rec (2008) 12.

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help give meaning and direction to life’.66 With regard to the challenge and opportunity for future clarification and development, Woodhead with Catto make the pregnant claim that, ‘it is not necessary to undertake fresh research in this area, so much as to utilise existing experience effectively.’67 This claim, although it is not developed within the report in any very explicit way, but is implicitly substantiated by the deployment into its discussion of material from the wider study of religion, is highly relevant for what is argued in the final section of this chapter concerning the potentially mutually enriching ‘A Possible Dialogical Opportunity’ across the disciplines of RE and law. Both are supplemented and complemented by religious studies more generally and by the emergent and very important field of ‘non-religious’ studies.68 5

Different but Cognate Challenges?

Apart from the Woodhead and Catto claim noted above (and which was more alluded to than expanded upon in the document itself) the Benoit et al and Woodhead with Catto documents could be seen as indicative of what, generally speaking, have arguably been historically parallel development of bodies of literature, theory and practice in RE and in the law. Within their own respective spheres of discourse and of practice, each has been trying to find appropriate ways forward to conceptualise, address and take appropriate account of the dimension of the ‘non-religious,’ but without having had any significant explicit dialogical engagement. As has been seen, within both the development of RE and of human rights law to take account of the ‘non-religious,’ definitional matters in relation to key concepts have been challenging, even within their own individual spheres. In this, however, they are not fundamentally different from related key concepts in other academic/educational fields and legislative contexts. For example, the concept of ethnicity, which became a central part of UK race relations law, is one around which there has for many years been a lively academic debate.69 However, when the UK Parliament originally passed its ground-breaking Race Relations Act 1968 it did not attempt rigidly to define meanings of the 66 67 68 69

Woodhead with Catto, ‘Religion or Belief’, 3. Woodhead with Catto, ‘Religion or Belief’, 30. See, for example, Lois Lee. Recognizing the Non-Religious: Reimagining the Secular. Oxford: Oxford University Press. 2015. Azril Bacal, Ethnicity in the Social Sciences: A View and Review of the Literature on E­ thnicity, Reprint Paper on Ethnic Relations, No. 3. (Coventry: Centre for Research in Ethnic ­Relations, University of Warwick, 1991).

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key concepts of race and ethnicity in any comprehensive way. Rather, it set out some key parameters, the interpretation and application of which were expected to evolve through the development of a body of case law that would contain within it some degree of expected evolutionary contextual adjustment. Indeed, it was such case development (specifically in the 1983 case of Mandla v. Dowell-Lee) which led to Sikhs becoming recognised as an ‘ethnic group’ within the meaning the Act.70 As with the concept of ethnicity, in relation to ‘religion or belief,’ even before focusing more specifically on ‘non-religious’ belief, it should be noted that here there has also been no single or uncontested definition of religion in either academic literature and disciplines or in the law. In some historic legal usage in England and Wales, especially within charity law, religion was linked with a belief in God or a divine being, until it was recognised that such an understanding excluded traditions such as Buddhism, which were generally accepted as religions but were atheistic. Thus, when the concept of ‘religion’ itself first (beyond Northern Ireland) came into UK legal discourse in relation to human rights, discrimination and equality it was subject to a considerable degree of debate and contestation71 given that, unlike in some countries, the UK has not had a tradition of having a list of officially recognised and registered religions outside the particular contexts of the prison service. And finally, while the key concepts of ethnicity and religion have both been complex when separately considered, the question of their inter-relationship has been contested with extensive debate occurring about whether the religious variable is dependent, independent or interdependent.72 70 71

72

In this case, the House of Lords held that a school’s refusal to admit a Sikh boy on the grounds that wearing a turban would make him unable to comply with the school’s dress code amounted to “indirect discrimination” within the meaning of race relations law. The present author in P. Weller, “The Dimensions and Dynamics of Religious Discrimination: Findings and Analysis from the UK”, in Nazila Ghanea, ed., The Challenge of Religious Discrimination at the Dawn of the New Millennium (Leiden: Martinus Nijhoff, 2003), 57–81 has, for example, suggested the following ‘working definition’, namely, that: “…religion is perhaps best understood as a way of living in which some form of identification (either in a weaker and more general sense, or in a stronger and more specific sense of alignment with particular movements, communities and/or organisational forms) is often (though not always or necessarily) to be found in conjunction with different forms of ‘believing’ (in various combinations of certain values, ideals and doctrines) and can be expressed through ‘practice’ (that is related to shared symbols, rituals, observances and ethical orientations).” Kevin Clements, “The Religious Variable: Dependent, Independent or Interdependent” in ed. Michael Hill, A Sociological Yearbook of Religion, No. 4 (London: SCM Press), 36–45.

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However, notwithstanding the above, it should be acknowledged that the conceptual issues that specifically surround the notion of (especially, ‘nonreligious’) ‘belief’ in UK equality and human rights law have posed particularly challenging issues of definition and application, both in law and in RE. Thus, although the criteria set out in Grainger PLC v Nicholson were, in many ways, helpful for the practical application of human rights law on ‘religion or belief’, many of the conceptual and practical challenges arising still remained. Thus, when the UK’s Equality and Human Rights Commission (EHRC) commissioned a report to review issues arising from the implementation of ‘religion or belief’ protected characteristics within the 2010 Equality Act, its authors Donald, Bennet and Leach noted that, ‘Under the Equality Act 2010, religion means ‘any religion’ and belief means ‘any religious or philosophical belief’; the lack of religion or belief is also covered.’ From this, they argued that, ‘the defining boundary is not between religion and belief, but between protected beliefs and those that are too ill-defined to warrant protection’ and related to this they highlighted that, ‘The lack of clarity as to what constitutes a religion or belief - and the instability this creates at the heart of the protection provided - arises frequently in legal and academic commentary.’73 Feeding into Donald et al’s report were perspectives drawn from a series of interviews with a range of people, especially from within employment, the law, and religion or belief groups. Many of the interviewees who were involved in matters of employment expressed concern about the lack of definitional clarity created by the case law in this area.74 For example, Steve Williams, Head of Equality at ACAS, described it as a ‘problematic’ area for employers, while Simon Langley, National Grid’s UK Lead Manager for Inclusion and Diversity argued that the assessment of whether a belief enjoyed legal protection ‘shouldn’t be left as a judgment call for employers because judgment calls by definition expose both parties to risk’. Another equality specialist working for a large private sector employer, who wished to remain anonymous, noted that it was ‘exceptionally difficult’ to interpret the definition of ‘belief”’ and pressed that ‘it’s a big issue for us; line managers just can’t get their heads around it’. Alan Beazley, an Advice and Policy Specialist with the of the Employers’ Forum on Belief (now part of the Employers’ Network for Equality and Inclusion) 73

74

Alice Donald, with the assistance of Karen Bennett and Philip Leach, Religion or Belief, Equality and Human rights in England and Wales, Equality and Human Rights Research Report No. 84 (Manchester: Equality and Human Rights Commission, 2012), 52. https:// www.equalityhumanrights.com/sites/default/files/research-report-84-religion-or-beliefequality-and-human-rights-in-england-and-wales.pdf. See Donald, Bennett and Leach, et al. Religion or Belief, Equality and Human rights in England and Wales, 55 for the following examples.

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c­ ommented that the ‘acid tests’ established through case law for the definition of belief were useful to employers, yet particular judgments had been ‘surprising.’ Concerns could also be found among interviewees who were affiliated to both religious and ‘non-religious’ groups. Thus, Donald et al reported that some Christian interviewees objected to placing what they called ‘idiosyncratic’ views or attitudes contingent on contemporary events onto a par with religious beliefs that had been held for millennia, while from a humanist p ­ erspective, David Pollock argued that recent judgments risked ‘watering down the concept of religion or belief such as to bring it into disrepute; this might, in turn, provoke a backlash resulting in a diminution of protection for all non-religious beliefs, including humanism.’75 6

A Possible Dialogical Opportunity

In the light of all of the above, Donald et al argued that, ‘These comments suggest that the criteria set out in the Explanatory Notes to the Equality Act for determining what is a ‘philosophical belief’ are either insufficiently known about and/or insufficiently clear’.76 They also concluded that, ‘taken as a whole, these concerns suggest the need for more detailed and accessible guidance for decision-makers which might assist them to achieve clarity and consistency in matters of definition of ‘belief’.’77 In this, they were standing in the lineage also of Woodhead with Catto’s 2009 report, which at that time stated with regard to the relationship between religion and belief in the law that: ‘current guidance may be inadequate’ and that, while the concepts ‘overlap’, they also ‘have important differences’.78 Despite the consolidation of the Equality Act 2010 having taken place in between these two reports, as Donald et al noted the only examples that had been offered in the Explanatory Notes to the 2010 Act relating to beliefs that would be excluded were ‘any cult involved in illegal activities’ and ‘adherence to a particular football team’.79 Although following on from the report 75 76 77 78 79

Donald, Bennett and Leach, et al. Religion or Belief, Equality and Human rights in England and Wales, 54. Donald, Bennett and Leach, et al. Religion or Belief, Equality and Human rights in England and Wales, 55. Donald et al Religion or Belief, Equality and Human rights in England and Wales, 55. Woodhead with Catto, ‘Religion or Belief’, 30. Equality Act 2010. Explanatory Notes, paragraphs 52–54. https://www.legislation.gov.uk /ukpga/2010/15/notes/contents.

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of Donald et al, the EHRC convened a working group80 which developed a guidance ­document geared towards supporting employers in dealing with ‘Religion or Belief in the Workplace’81 many of the challenging conceptual and implementational challenges relating to ‘religion or belief’ (and especially the dimension of the ‘non-religious’) still remain in law; while in RE they are unlikely to disappear with the changes from RE to RVE embodied in the new Curriculum for Wales – not least because in England, the territory around RE and the ‘non-religious’ still remains very contested. It is in this context, however, that what was described in the chapter’s earlier section on ‘Different but Cognate Challenges?’ that Woodhead with Catto’s ‘pregnant claim that, ‘it is not necessary to undertake fresh research in this area, so much as to utilise existing experience effectively’82 may still be able to come into its own. On the one hand, it is unlikely that the respective discussions and debates on ‘religion or belief’ and (especially) on the ‘non-religious’ that have taken place in the separate fields of RE and the law will provide the other field with a perfectly fitting hermeneutical key. This is not least because, in RE the conceptual issues involved more educatively inform the understanding of school pupils in a way that can shape their interactions with their wide social worlds. In law, however, there is an overriding need for any concepts and their use to be adequate in the very concrete task of assisting the law practically to identify, address and enable legal remedies in relation to, a specific kind of discrimination or lack of human rights. However, an openness to serious conversation between scholars within RE and law, and which focuses on their respective understandings of and approaches to arguably cognate issues and concerns relating to the ‘non-­ religious,’ might help both fields to move forward beyond a history disciplinary parallelism in ways that could ultimately at the least assist, by way of comparison and contrast, in better illuminating and clarifying each field’s ongoing conceptual challenges and practical challenges. Finally, in closing, it is likely that that both in separate disciplinary discussions, and in any dialogical engagement, the growing work on the diversity and complexity of the ‘non-religious’ that has emerged in recent years around the varying terminologies of religious or ‘non-religious’, ‘religions or belief’ and 80 81

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And of which the present author was a member. Equality and Human Rights Commission. Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments (Manchester: Equality and Human Rights Commission) Microsoft Word - GD.12.411-2 Religion belief workplace employers 26-03-14 (equalityhumanrights.com). Woodhead with Catto, ‘Religion or Belief’, 30.

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‘worldviews’ is likely to prove beneficial, important and significant.83 As noted in the first footnote of this chapter, and explored more extensively in the range of contributions in Day, Vincett and Cotter’s edited book on ‘Social Identities Between the Sacred and the Secular,’84 in empirical reality there are significant differences, fluidities and confluences that exist along the spectra of those who more self-identify in one way or another as broadly ‘non-religious.’85 Bibliography References (all web references accessible on 24.01.2022) Books Bacal, Azril. Ethnicity in the Social Sciences: A View and Review of the Literature on ­Ethnicity, Reprint Paper on Ethnic Relations, No. 3. Coventry: Centre for Research in Ethnic Relations, University of Warwick, 1991. Berger, Peter. A Far Glory: The Quest for Faith in an Age of Credulity. New York: Free Press, 1992. Bisset, Peter. The Kirk and Her Scotland. Edinburgh: Handsel, 1986. Bourdieu, Pierre. Outline of a Theory of Practice. Cambridge: Cambridge University Press, 1977. British Humanist Association. Objective, Fair and Balanced. London: British Humanist Association, 1975. Brown, Callum. The Death of Christian Britain: Understanding Secularisation, 1800–2000. Abingdon: Routledge, 2002. Cumper, Peter, and Alison Mawhinney, eds. Collective Worship and Religious ­Observance in Schools. Oxford: Peter Lang, 2018. Day, Abby, Giselle Vincett and Christopher Cotter, eds. Social Identities Between the Sacred and the Secular. Farnham: Ashgate, 2013. 83

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Sariya Cheruvallil-Contractor, Tristram Hooley, Nicki Moore, Kingsley Purdam and Paul Weller, “Researching the Non-Religious: Methods and Methodological Issues, Challenges and Controversies”, in eds. Abby Day, Giselle Vincett and Christopher Cotter, Social Identities Between the Sacred and the Secular (Farnham: Ashgate, 2013), 173–89. Abby Day, Giselle Vincett and Christopher Cotter, eds., Social Identities Between the Sacred and the Secular (Farnham: Ashgate, 2013). See Sariya Cheruvallil-Contractor, Kingsley Purdam and Paul Weller, “Much More Than a Negation of Religion: A Qualitative Exploration of Non-Religious Identities in England and Wales”, Journal of Contemporary Religion 36, No. 2 (2021): 329–48.

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Gates, Brian ed., Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England. Tübingen: Mohr Siebeck, 2016. Henessy, Peter, The Hidden Wiring: Unearthing the British Constitution. London: Victor Gollancz, 1995. Hooker, Roger [1648], Of the Laws of Ecclesiastical Polity, edited by Arthur McGrade. ­Cambridge: Cambridge University Press, 1989. Kant, Immanuel. [1790] Critique of the Power of Judgement. edited by Paul Guyer, trans. Paul Guyer and Eric Matthews. Cambridge: Cambridge University Press, 2000. Larsen, Timothy. Friends of Religious Equality: Nonconformist Politics in Mid-Victorian England. Woodbridge: The Boydell Press, 1999. Lee, Lois. Recognizing the Non-Religious: Reimagining the Secular. Oxford: Oxford ­University Press, 2015. Madeley, John and Zolt Enyedi, eds. Church and State in Contemporary Europe: The Chimera of Neutrality. London: Frank Cass, 2003. Murphy, James. Church, State and Schools in Britain, 1800–1970. London: Routledge and Kegan Paul, 1971. Ofsted. Transforming Religious Education: Religious Education in Schools, 2006–09. London: Ofsted, 2010. https://dera.ioe.ac.uk/1121/1/Transforming%20religious% 20education.pdf. Polanyi, Michael. The Tacit Dimension. Chicago: The University of Chicago Press, 1966. Taylor, Charles. Modern Social Imaginaries. Durham, NC: Duke University Press. 2004 Weller, Paul. Time for a Change: Reconfiguring Religion, State and Society. London: T. and T. Clark. 2005. Weller, Paul, Purdam, Kingsley, Ghanea, Nazila, and Cheruvallil-Contractor, Sariya. Religion or Belief, Discrimination and Equality: Britain in Global Contexts. London: Bloomsbury, 2013.

Chapters Cheruvallil-Contractor, Sariya, Tristram Hooley, Nicki Moore, Kingsley Purdam and Paul Weller. “Researching the Non-Religious: Methods and Methodological Issues, Challenges and Controversies.” In Social Identities Between the Sacred and the ­Secular, edited by Abby Day, Giselle Vincett and Christopher Cotter, 173–89. ­Farnham: Ashgate, 2013. Clements, Kevin. “The Religious Variable: Dependent, Independent or Interdependent.” In A Sociological Yearbook of Religion, No. 4 edited by Michael Hill, 36–45, London: SCM Press, 1971.

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Dilthey, Wilhelm. [1911] “The Types of World-View and Their Development”. In William Dilthey: Selected Works, Volume VI: Ethical and World-view Philosophy edited by Rudolf Makkreel and Fritjhof Rodi, 249–94. Princeton: Princeton University Press, 2019. Grove, Julie. “Agreed Syllabuses, SACRE s and Their National Association.” In Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England edited by Brian Gates, 35–57. Tübingen: Mohr Siebeck, 2016. Thompson, Richy. “A Humanist Perspective.” In Religion and Nationhood: Insider and Outsider Perspectives on Religious Education in England, edited by Brian Gates, Tübingen: Mohr Siebeck. 2016. Weller, Paul. “The Dimensions and Dynamics of Religious Discrimination: Findings and Analysis from the UK. In The Challenge of Religious Discrimination at the Dawn of the New Millennium edited by Nazila Ghanea, 57-81. Leiden: Martinus Nijhoff, 2003. Weller, Paul. “The Emerging Inter-Faith Context in Society and Religious Education”. In Religion and Nationhood: Insider and Outsider Perspectives on Religious E­ ducation in England, edited by Brian Gates, 205–28. Tübingen: Mohr Siebeck. 2016.



Journal Articles

Cheruvallil-Contractor, Sariya, Kingsley Purdam and Paul Weller. “Much More Than a Negation of Religion: A Qualitative Exploration of Non-Religious Identities in ­England and Wales.” Journal of Contemporary Religion 36, No. 2 (2021): 329–48. https://doi.org/10.1080/13537903.2021.1936966. Chigwidden, Paul. “Religious Education and the Interwar Intellectuals: a Secularism Case Study.” British Journal of Religious Education 42, No. 2 (2020): 129–40. https:// doi.org/10.1080/01416200.2018.1556599 Gearon, Liam. “Paradigm Shift in Religious Education: A Reply to Jackson, or Why Religious Education Goes to War.” Journal of Beliefs and Values 39, No. 3 (2017), 358–378. https://doi.org/10.1080/13617672.2017.1381438 Jackson, Robert. “The Development and Dissemination of Council of Europe Policy on Education about Religions and Non-Religious Convictions.” Journal of Beliefs and Values 35, No. 2 (2014): 133–43. https://doi.org/10.1080/13617672.2014.953295 van der Kooij, J Jacomijn, Dorit de Ruyter and Siebren Miedema. “ ‘Worldview’: The Meaning of the Concept and the Impact on Religious Education.” Religious ­Education 108, No. 2 (2013): 210–28. https://doi.org/10.1080/00344087.2013.767685 van der Kooij, Jacomijn; Dorit de Ruyter and Siebren Miedema. “The Merits of Using ‘Worldview’ in Religious Education.” Religious Education 112, No. 2 (2017): 172–184. https://doi.org/10.1080/00344087.2016.1191410

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Schultz, Katherine, and James Swezey. “A Three-Dimensional Concept of Worldview.” The Journal of Research on Christian Education 22, No. 3 (2013): 227–43. https://doi .org/10.1080/10656219.2013.850612 Smart, Ninian. “The Philosophy of Worldviews – That is, the Philosophy of Religion Transformed.” Neue Zeitschrift für systematische Theologie und Religionsphilosophie 23, No. 1 (1981): 212–24. https://doi.org/10.1515/nzst.1981.23.1.212 Watson, Jaqueline. “Including Secular Philosophies such as Humanism in Locally Agreed Syllabuses for Religious Education.” British Journal of Religious Education 32, No. 1 (2009): 5–18. https://doi.org/10.1080/01416200903332023 Weller, Paul. “Religious Minorities and Freedom of Religion or Belief in the UK,” ­Religion and Human Rights: An International Journal 13, No. 1 (2018): 76–109. https:// doi.org/10.1163/18710328-13011160



Reports & Reviews

Benoit, Céline, Timothy Hutchings and Rachael Shillitoe. WORLDVIEW: A Multidisciplinary Report. London: Religious Education Council of England and Wales, 2021. https://www.religiouseducationcouncil.org.uk/wp-content/uploads/2021/01/RECWorldview-Report-A4-v2.pdf Birmingham City Council. Agreed Syllabus of Religious Instruction. Birmingham: ­Birmingham City Education Committee, 1975. British Humanist Association. British Humanist Association Position Paper: Beliefs, ­Non-Religious Worldviews, and Humanism: What we Understand by These Terms. London: British Humanist Association 2017. https://humanists.uk/wp-content/ uploads/Position-paper-Beliefs-non-religious-worldviews-and-Humanism.pdf. Catholic Education Service, Catholic Education Service Response to the Commission on Religious Education Report. (London: Catholic Education Service, 2018). https://www.catholiceducation.org.uk/schools/religious-education/item /1003658-catholic-education-service-response-to-the-commission-on-religiouseducation-report. Christians Against Racism and Fascism. Church Schools in a Multi-Faith Society. (­Coalville: Christians Against Racism and Fascism, 1982). Commission on Religious Education. Final Report. Religion and Worldviews: The Way Forward. A National Plan for RE. London: Commission on Religious Education, 2018. https://www.commissiononre.org.uk/final-report-religion-and-worldviews-theway-forward-a-national-plan-for-re/. Department for Children, Schools and Families. Religious Education in English Schools: Non statutory Guidance 2010.London: Department for Children, Schools and Families, 2010. https://assets.publishing.service.gov.uk/government/uploads/system /uploads/attachment_data/file/190260/DCSF-00114-2010.pdf Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Department for Education. Circular Number 1/94. Religious Education and Collective Worship. London: Department for Education, 1994. Donald, Alice with Karen Bennett and Philip Leach. Religion or Belief, Equality and Human Rights in England and Wales, Equality and Human Rights Research Report No. 84. Manchester: Equality and Human Rights Commission, 2012. https://www .equalityhumanrights.com/sites/default/files/research-report-84-religion-orbelief-equality-and-human-rights-in-england-and-wales.pdf Edge, Peter, and Lucy Vickers. Review of Equality and Human Rights Law Relating to Religion or Belief. Equality and Human Rights Research Report No. 97. Manchester: Equality and Human Rights Commission, 2015. https://www.equalityhumanrights. com/sites/default/files/research-report-97-review-of-equality-and-human-rightslaw-relating-to-religion-or-belief.pdf Equality and Human Rights Commission. Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments. ­Manchester: Equality and Human Rights Commission, 2013. Qualifications and Curriculum Authority/Department for Education and Science, Religious Education: The Non‐Statutory National Framework. London: Qualifications and Curriculum Authority, 2004. http://www.mmiweb.org.uk/publications/re /NSNF.pdf. Religious Education Council for England and Wales. Welsh Government Proposal to Change the Name of RE and Remove the Right of Withdrawal. London: Religious Education Council. 2019. https://www.religiouseducationcouncil.org.uk/?news =welsh-government-proposal-to-change-the-name-of-re-and-remove-the-right-ofwithdrawal/ Shuker, Edwin. Commission on RE Report is Fundamentally Flawed. 18.12.2018. London: Board of Deputies of British Jews, 2018. Skolverket. Curriculum for the Compulsory School, Preschool Class and School-age ­Educare. Stockholm: Norstedts Juridik kundservice, 2018. https://www.skolverket. se/getFile?file=3984. Welsh Government. Consultation on Proposals to Ensure Access to the Full Curriculum for all Learners, WG39139, October 19th. Cardiff: Welsh Government, 2019. https://gov. wales/sites/default/files/consultations/2019-10/consultation-document-ensuringaccess-to-the-full-curriculum_0.pdf. Welsh Government. Curriculum for Wales: Summary of Legislation. Cardiff: Welsh Government, 2020 (updated 2022). https://hwb.gov.wales/curriculum-for-wales/sum mary-of-legislation/#religion,-values-and-ethics. Woodhead, Linda with Rebecca Catto. ‘Religion or Belief’: Identifying Issues and ­Priorities, Equality and Human Rights Commission Research Report No. 48. Manchester: Equality and Human Rights Commission, 2009. https://www.equalityhumanrights.com /sites/default/files/research-report-48-religion-or-belief-identifying-issues-and-­ priorities_0.pdf. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Websites Church of England, The. Church Schools and Academies. https://www.churchofengland.org/about/education-and-schools/church-schools-and-academies. Equality Act 2010. Explanatory Notes, paragraphs 52–54. https://www.legislation.gov. uk/ukpga/2010/15/notes/contents. Gov.uk. Types of Schools. https://www.gov.uk/types-of-school/faith-schools. No More Faith Schools. https://www.nomorefaithschools.org/. Theology and Religious Studies UK (TRS-UK). https://trs.ac.uk/.

International Council of Europe. Recommendation CM/Rec (2008) 12 of the Committee of Ministers to Member States on the Dimension of Religions and Non-Religious Convictions within Intercultural Education. Strasbourg: Council of Europe, 2008. https://search.coe.int /cm/Pages/result_details.aspx?ObjectID=09000016805d20e8. Council of Europe. Guide on Article 9 of the European Convention on Human Rights Freedom of Thought, Conscience and Religion. Updated on 31 August 2021. Strasbourg: Council of Europe, 2021. https://echr.coe.int/Documents/Guide_Art_9_ENG.pdf.

Other Hinds, Damian, Secretary of State for Education. Letter to Very Revd. Dr. John Hall, Chair of the  Commission on Religious Education, 2018. https://www.religiouseducationcouncil .org.uk/wp-content/uploads/2018/12/Letter-to-The-Very-Reverend-Doctor-JohnHall-from-Rt-Hon-Damian-Hinds-MP...-1.jpg and https://www.religiouseducation council.org.uk/wp-content/uploads/2018/12/Letter-to-The-Very-Reverend-DoctorJohn-Hall-from-Rt-Hon-Damian-Hinds-MP...-2.jpg.

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CHAPTER 6

Religious Footprints in Secular Sand-the Imprint of Religious Culture in Civil Law Javier García Oliva and Helen Hall 1 Introduction1 In writing his commentaries, the XVIII century jurist William Blackstone could confidently assert the Christian character of the legal framework, reminding his readers that in order to be binding, human made laws must be in conformity with the precepts of Divine Law, as revealed in Holy Scripture.2 Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. In the centuries since Blackstone produced his magnum opus, the ­juridical order and the assumptions underlying it have changed radically. Whilst the Constitution retains its religious character, with established Churches in ­England and Scotland and a quasi-established Church in Wales,3 the Anglican privilege which formed part of Blackstone’s world has long since been stripped away.4 By virtue of the Human Rights Act 1998, there is a universal, positive right to hold and express religious and philosophical ideas, and to be free from discrimination on the basis of these convictions.5 Secular courts6 refrain from adjudicating on spiritual matters (although this does not preclude them from determining civil law issues which happen 1 We would like to thank Jahid Hossain and Ann Black, for their invaluable assistance throughout this endeavor. 2 William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), Section 2. 3 Norman Doe, The Law of the Church in Wales (Cardiff: Cardiff University Press, 2002), 11. 4 Javier Garcia Oliva and Helen Hall, Law, Religion and the Constitution: Balancing Beliefs in Britain (Abingdon: Routledge, 2018), 11–49. 5 European Convention on Human Rights: Articles 9 and 14. 6 It is not possible to say “State courts” in this context, because the ecclesiastical courts remain part of the State legal framework. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_007 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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to have a religious factual context), and certainly do not accept the truth of Church of England doctrine as axiomatic.7 In remaining silent of the validity of all religious, spiritual and philosophical beliefs, the courts maintain the type of neutrality which is to be expected in a liberal democratic paradigm.8 However, this does not mean that there are not still ideas and images from a more overtly religious era woven into the contemporary legal fabric. Inevitably, judges in previous generations operated from the cultural and intellectual ­paradigm within which they lived, and this is neither a cause for lament nor celebration, it is simply a reality of the human condition. Exactly the same thing is true of contemporary judges, and commentators a hundred years from now may express horror and disapproval at the assumptions and values of society in the 2020s. The purpose of this chapter is to examine the imprint of the religious culture within two seminal cases, and to explore what this might mean for the way that we approach these precedents for the purpose of legal analysis and teaching. One ruling is the iconic Donoghue v Stevenson,9 arguably the most famous civil law case of all time, and a decision which continues to fascinate lawyers and ‘the man on the Clapham omnibus’ alike. The other is the leading Family Law case of Hyde v Hyde,10 which wisely or otherwise continues to be routinely wheeled out by undergraduate textbooks and other sources examining the nature of marriage. We shall examine each of these rulings in turn and assess the footprints of Christian thought discernible within the judgments, before determining what common insights might be gleaned. 2

Donoghue v Stevenson

This is the decision which gave Lord Atkin the opportunity to launch the modern tort of negligence on the sea of precedent, and has left generations of law students with a queasy feeling around ginger-beer. The facts as pleaded were that Ms Donoghue visited a café with a friend, who bought her ginger-beer and some ice-cream. The bottle was made from dark, opaque glass, so when she began drinking, Ms Donoghue could not see the rotting carcass of a very unlucky snail lurking within. When more of the drink was poured out, and 7 8 9 10

Shergill and Others v Kaira [2013] UKSC 33. Pierre Manent, An Intellectual History of Liberalism, trans. Rebecca Balinski (Princeton: Princeton University Press, 1995), XI. Donoghue v Stevenson [1932] UKHL 100. Hyde v Hyde [1866] [L.R.] 1 P & D 30.

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the decomposing gastropod emerged, she received an unpleasant shock, and afterwards suffered a bout of gastroenteritis. The problem was that Ms Donoghue had not bought the drink, so did not have an action in contract. The House of Lords was required to decide whether an action lay, and this turned on whether the manufacturer of the contaminated ginger-beer owed the pursuer a duty of care.11 It is difficult for legal scholars who have grown up in a world where the tort of negligence plays such a large, and arguably dominant role, to appreciate how controversial this question was in 1932. Buxton justly observes that the ruling was met with hostility and scorn by many of the leading academic writers of the day,12 and it was not until the decision in Home Office v Dorset Yacht Club that the full force of its generalising power was appreciated.13 It is true, of course, that Lord Atkin did not pluck his doctrine out of thin air, as there were antecedent developments in legal reasoning which made it a possible, if not necessarily an inevitable step. As Ibbetson explains, the language of duty had its origins in the work of XVII and XVIII century natural lawyers, but began to emerge in the pleading of negligence cases in the early XIX century, where plaintiffs wished to stress that their action was not contractual in nature.14 Nevertheless, courts in this period were keen to stress that the duty arose out of some special relationship between the parties, usually relating to either a contractual or statutory obligation, or some category of activity known to be dangerous to third parties, e.g. kindling fires.15 The clear articulation of a general and free-standing duty was a point at which the courts had not arrived prior to Donoghue v Stevenson. Whilst it is unlikely that Lord Atkin could have foreseen the immense forest of case law that would grow up from the seed he was planting, he was certainly well aware that his leading judgment would bring about a sea-change in tort. He clearly ­carefully constructed his speech to justify the direction he was taking, and the language in which he couched it was extremely important. This member of the judiciary undoubtedly wanted to both provide reassurance and stem criticism, in response to possible fears of having opened the flood-gates to a deluge of claims. Lord Atkin stressed that the boundaries of legal liability were drawn 11 12 13 14 15

The case was a Scottish one, but counsel for both sides agreed that Scots and English law were coterminous in respect of the particular point at issue. Richard Buxton, “How the Common Law Gets Made: Hedley Byrne and other Cautionary Tales,” Law Quarterly Review, no. 125 (January 2009): 60, 61. Home Office v Dorset Yacht Club [1970] AC 1004 HL. David Ibbetson, An Introduction to the Law of Obligations (Oxford: Oxford University Press, 2001), 165–171. Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781.

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more narrowly than those of moral or social duty, and in doing so explicitly referenced Christian Scripture. “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.” The ‘lawyer’ referred to is not a hypothetical practitioner or student of the common law, but the Torah scholar referred to in Luke 10:25–29: 25 And, behold, a certain lawyer stood up, and tempted him, saying, ­Master, what shall I do to inherit eternal life? 26 He said unto him, What is written in the law? how readest thou? 27 And he answering said, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself. 28 And he said unto him, Thou hast answered right: this do, and thou shalt live. 29 But he, willing to justify himself, said unto Jesus, And who is my neighbour?16 In answering the lawyer’s question, Jesus then goes on to relate the parable of the Good Samaritan, who cared for a stranger whom he found lying injured in the road. Lord Atkin was assuming that those reading his judgment would be familiar with this story, and therefore, would understand the clear differentiation which he was drawing between Christian duty and legal obligation. The illustration is a powerful and elegant one for an audience with knowledge of the relevant passage from Scripture, but would inevitably be lost on anyone who would not make this connection. In attempting to reconstruct the thought-processes of Lord Atkin in formulating his judgment in Donoghue, Kleefeld explicitly references the Law Lord’s personal spiritual life and the possibility of the idea having been sparked by a reading or sermon which he had heard on the Good Samaritan.17 Whist it is impossible to know for certain whether Lord Atkin had a sudden moment of inspiration after attending church, it is undeniable that he drew on a cultural frame of reference that made sense to him, and that he anticipated would resonate with his addressees. The overwhelming majority of people reading law reports in England in 1932 were white, male, middle class, and identified as Christian. 16 17

Luke 10:25–19, King James Version, John Kleefeld, “The Donoghue Diaries: Lord Atkin’s Research Notes on Donoghue v ­Stevenson,” Juridical Review, no. 3 (2013): 375, 384.

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Whilst the language and imagery employed are by no means insignificant, some commentators go further, and point to Christian doctrine as one of the sources for the reasoning set out in the leading judgment. This is extremely different from drawing upon Biblical stories or characters simply as readily recognisable symbols or tropes, but attaching no special moral value or truth to their content. Lawyers have always focused on literature, folktales and fairy-stories to elucidate and give colour to their points, and continue to do so, but turning to religious texts for guidance is a different endeavour altogether. Vines argues that in formulating his response to Donoghue v Stevenson, Lord Atkin was living in a world in which ‘the New Testament was an unproblematic source of community morality,’ and very properly wished to align the operation of tort with community morality.18 This is a slightly problematic line of reasoning, given that, as noted above, Lord Atkin was very deliberately staking out the difference between the spiritual duty of Christians to promote the welfare of any and all persons in need or at risk, and the legal duty to avoid harming third parties by negligent conduct. It is true, that as Cooke observes19: Lawyers nervous of the potential reach of Lord Atkin’s Donoghue v ­Stevenson principle based on the Christian ethic often argue on the lines that the common law must stop short of enforcing love of one’s neighbour or altruism as a legal duty, making the point that the right to pursue self-interest underlies many rules of law. Nonetheless, the problem here arguably lies with the reading, rather than the words of the text. The possible Frankenstein’s monster of a proactive duty to care is frequently trotted out in argument, but this makes very little sense in light of Lord Atkin’s speech as actually delivered. Consequently, it is difficult to avoid the conclusion that this either arises from commentators relying on memory or secondary sources when discussing an iconic case, as opposed to rereading the original text, or deliberately attacking a straw-man for rhetorical purposes. The judge brings up the Christian neighbour principle precisely to make the point of distinguishing it, metaphorically waving it before his ­audience and asserting ‘this is not the standard that we should apply here.’

18 19

Prue Vines, “The Protected Apology as the modern response to the moral question at the heart of Donoghue v Stevenson,” Juridical Review, no. 3 (2013): 483, 483–484. Robin Cooke, “An Impossible Distinction,” Law Quarterly Review, no. 107 (January 1991), 46, 52.

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Castle provides some helpful nuance to the analysis, referring to the e­ vidence available from an address given by Atkin in 1931, at King’s College in the Strand.20 The topic was ‘Law As An Educational Subject,’ and he outlines the principle that he would reiterate only a few months later in Donoghue v Stevenson, namely that law occupied a narrower sphere than morality. Nevertheless, he then went on to make a curious statement, which is very different from the line taken in the famous case: “I doubt whether the whole of the law of tort could not be comprised in the golden maxim to do unto your neighbour as you would that he should do unto you.” Now it should be noted that this is not primarily a reference to the exchange between Jesus and the lawyer, which frames the immediately succeeding ­parable of the Good Samaritan, and the precept often referred to as ‘The Golden Rule’ is found in Matthew 7:12 and Luke 6:31. That said, neither of these passages uses the word ‘neighbour,’ that is contained in the lawyer episode previously discussed, and in various parts of the Old Testament, for example Leviticus 19:18. Lord Atkin was thus synthesizing a number of different passages to discern a coherent and common theme, which is an orthodox and widely accepted approach to Christian Scripture. It is also fair to observe that a negative form of the instruction offered by Christ was taught by a number of contemporaries, most famously Hillel the Elder: ‘That which is hateful to you, do not do to others.’21 What can be gleaned from this? It does appear that speaking extra-judicially, Lord Atkin certainly affirmed the idea the law should be in harmony with morality, and made reference to an understanding of this which coincided with his own Christian faith and the prevailing culture in which he lived. However, it is difficult to see that this could be interpretated as Christian values h ­ aving directed Donoghue v Stevenson, other than at the very broadest sense. Both in giving that ground-breaking judgment, and expressing his more personal views in a lecture, he was careful to stress that religious duties are broader than the responsibilities to be laid down by the law of the State, and the reference to The Good Samaritan form of neighbourliness is expressly raised in Donoghue in contrast to what the common law demands. In the Donoghue formulation, your neighbour is not any fellow human being you might encounter, but any legal person you might foreseeably injure.

20 21

Richard Castle, “Lord Atkin and the Neighbour Test: Origins and Principles of Negligence,” Ecclesiastical Law Journal 7, no. 33 (2003): 210, 211–214. Yitzhak Buxbaum, The Life and Teaching of Hillel (Plymouth: Bowman and Littlefield, 1994), 97–99.

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The kind of morality that the Donoghue formulation does embody, comes closer to the negative version of the Golden Rule, not to inflict treatment on another person if you would not wish to receive it yourself. It is true that this is absolutely in harmony with most understandings of the teachings of Christ and the contents of the Old and New Testament, but the underlying principle is certainly not exclusively Christian by any stretch of the imagination. The Golden Rule is often quite properly cited in interfaith discussions as a value around which most communities and ideologies can unite, and many religions and philosophies have their own formulation of the core principle.22 Neither it is confined to faith-based creeds, and many humanists, for instance, adopt a version of it.23 We are not suggesting that the Golden Rule is universally accepted or beyond criticism. For example, Kant famously argued that it was problematic, given the necessity of actions sometimes being taken against an individual for the good of society, such as a judge sending a criminal to prison.24 ­Without doubt, the usefulness of Kant’s contribution to philosophical thought is beyond the scope of this discussion, but what is pertinent is that Lord Atkin, and for that matter, the Rabbi Hillel, could not be read in context as suggesting that the Golden Rule signifies that individuals should not be subject to collective j­ustice and punishment or enforced reparation. The relevance of the Golden Rule to Lord Atkin’s approach is that there is a moral duty to avoid behaviours which may inflict harm on third parties, and if legal persons fail in that duty, then it is appropriate that they should pay compensation. It goes without saying that this very broad formulation leaves open many questions which have preoccupied courts, litigants and academics since ­Donoghue v Stevenson. For example, at what point is the link between the behaviour and the harm too remote to justify the imposition of liability? What kinds of harm should the legal framework recognise as demanding compensation? Does it matter if the harm which arose differed from the harm which might have been foreseen?25 Nevertheless, despite all of this, it would be difficult to conclude that the Christian moral precept behind the neighbour 22 23 24 25

Tarunjit Butalia and Dianne Small, Religion in Ohio: Profiles of Faith Communities (Ohio: Ohio University Press, 2004), 28. “Understanding Humanism: The Golden Rule,” Humanism UK, https://understandinghumanism.org.uk/. Zev Friedman, “The Individual in Kant and Kierkegaard,” in Dewi Phillips and Timothy Tessin (eds) Kant and Kierkegaard on Religion (New York: St Martin’s Press, 2000) 95–106, 102–103 Tony Weir, An Introduction to Tort Law (Oxford: Clarendon Press, 2006), 2–5.

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­ rinciple, at least as Lord Atkin understood it to apply in the realm of tort, was p likely to be problematic in terms of giving preferential treatment to exclusively Christian ideas. He was expressing a very broad principle which is present in many different religious and cultural contexts, and he described it in Christian terms because that was the vocabulary and imagery with which he and his addressees were familiar. Taking a holistic approach to the neighbour principle, it is unquestionable that the language and imagery reflected the still predominantly Christian ethos of Britain in the interwar years, and undoubtedly, a member of the judiciary in 2021 would not couch a judgment in terms that would require readers to have a working knowledge of the New Testament in order to fully understand the arguments being made, and possibly also the humour. (Whilst Lord Atkin was obviously well aware that the lawyer in the passage was not a barrister or a solicitor, but a Jewish religious scholar, it is tempting to imagine him with a wry smile at the picture of a ‘lawyer’ effectively looking for a loop-hole in the requirements to attain eternal life). Not only would this be problematic in terms of equality and inclusion, it would also run a real risk of obscuring the meaning of the words used and possibility of misinterpretation. Having acknowledged this, however, reading cases decided in a very different era, in this instance almost a century ago, always and inevitably requires caution in approaching the context and sense of what is being said. This can relate to cultural assumptions and values, or very practical matters such as technology. For instance, anyone discussing the formation of contracts, and the Brinkibon decision, especially with undergraduates, now needs to explain what a Telex machine was, as technology which was cutting edge within living memory has now long since been obsolete.26 In summary, Christian language and imagery in older case law is not problematic per se, it is part of the cultural heritage of the context from which it is drawn, and one factor to bear in mind in seeking to unpack and analyse the arguments being made. Far more potentially problematic, are exclusively Christian values and assumptions that may persist within the reasoning and ratio of cases. In the case of Donoghue v Stevenson, this was not really a feature, as the underlying principle being expressed had (and indeed retains) widespread currency and acceptance, despite the culturally Christian vesture in which it appeared. Nonetheless, this is not always the case, and it is with this consideration in mind that we turn now to the decision of the House of Lords in Hyde v Hyde. 26

Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34.

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Hyde v Hyde

This is another case frequently referred to by judges, textbooks and undergraduates writing essays.27 It is all too often treated as at least a starting point in considering the definition of marriage at common law, even though the often quoted key phrase ‘the voluntary union for life of one man and one woman to the exclusion of all others,’28 is acknowledged to no longer reflect the law, if indeed it ever did.29 The facts of the decision concerned a man who had emigrated to the United States of America as a teenager and married a woman according to Mormon marriage rites. Years and several children later, he changed his religious ­convictions, left the faith and preached against the Mormon religion. His behaviour incurred the inevitable disapproval of the leaders of the group, and he was excommunicated. He tried to persuade his wife to join him in leaving ­Mormonism, but she was committed to her faith and not prepared to abandon it, despite protesting her continued affection for him personally. Ultimately, it became apparent to both parties that the estrangement was permanent. The wife married another Mormon faithful, and had further children with him, whilst the husband returned to England and petitioned to divorce her on the basis of adultery. However, in order to obtain a dissolution of the marriage, he had to convince a court that the union was a marriage for the purposes of the law of England and Wales. In addressing this question, Lord Penzance referred repeatedly, and at length, to the concept of ‘Christendom’, and he made the point that the terminology of husband and wife might denote different status and relationships within varying cultural and linguistic contexts.30 Whilst the highly pejorative language and implicit assumption of superiority on the part of European society is deeply troubling from a contemporary perspective, as we shall discuss, recognition of the inherent logical flaws in assuming that ‘marriage’ is an isomorphic concept across all religious, cultural and juridical boundaries is valid and potentially helpful. In reality, the legal benefits and burdens, as well as social roles and expectations attached to marriage, vary widely between societies.31 27 28 29 30 31

Archana Parashar and Francesca Dominello, Family Law (Cambridge: Cambridge ­ niversity Press, 2017), 83. U Hyde v Hyde, 130. Stephen Gilmore and Lisa Glennon, Hayes and Williams: Family Law (Oxford: Oxford ­University Press, 2016), 3. Hyde v Hyde, 133–134. Robin Fox, Kinship and Marriage: An Anthropological Perspective (Cambridge: Cambridge University Press, 1983).

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It is legitimate, and in some circumstances, even necessary, for legal d­ ecision-makers to assess whether a divergence in meaning between an English word, and a counterpart in another language is great enough to demand differential treatment, but what is striking in this context, is that the judge sought to group together ‘all Christian nations’32 on the basis that they shared a common understanding of the fundamental nature of marriage, albeit with some variation in ‘minor incidents.’ The full phrase as expressed by Lord Penzance was that: I conceive that marriage, as understood in Christendom [emphasis added], may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. It is noteworthy that this statement was not in fact accurate, even in the context that it was being spoken, and Lord Penzance must have been acutely aware of this. In 1866, dissolution of marriage had been a legal possibility for some time (albeit in extremely limited circumstances), and given that the judge was hearing a divorce petition in making this ruling, it can hardly be that this had slipped his mind. Furthermore, in contrast to Donoghue v Stevenson, where there are allusions to Christian Scripture, no overt reference is made to the sources of religious doctrine. The formulation given does echo the Book of Common Prayer vows: Wilt thou have this woman to thy wedded wife, to live together after God’s ordinance in the holy estate of Matrimony? Wilt thou love her, comfort her, honour, and keep her, in sickness and in health; and, forsaking all other, keep thee only unto her [emphasis added], so long as ye both shall live?33 But there is no attempt to appeal to Scripture, and the embarrassing prevalence of polygamous marriage in the Old Testament may have been one reason behind this. It is notable that this consideration was also conveniently brushed under the carpet in the debates around the introduction of same-sex marriage in the twenty-first century, with campaigners against such reform arguing that, as the Church of England General Synod put it: ‘[T] the intrinsic nature of

32 33

Hyde v Hyde, 133. Book of Common Prayer, 1662.

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marriage, as enshrined in human institutions since before the advent of either church or state, is the union of a man and a woman.’34 Leaving aside that this assertion in demonstrably false as far as mainstream academic research in the fields of Anthropology and History are concerned, given that polygamy and polyandry are and have been practised by many human societies,35 it would appear to suggest that the Biblical patriarch Jacob was not in fact married to matriarch Rachael, as he took her as a second wife to her elder sister Leah, which is a somewhat surprising position for the Church of England.36 The reality is that in arguing against the introduction of same-sex marriage, the Church of England was construing marriage in a way which aligned with their current policy and preoccupation, ousting all other considerations in the process. Equally, in focusing on the definition that he put forward, rooted more firmly in the Anglican Prayer Book understanding of marriage than the civil legal framework, Lord Penzance was also engineering a definition to fit with an agenda. As Probert eloquently demonstrated: ‘The desirability of the idea of ­marriage set out in Hyde was more important than its accuracy. As suggested above, Lord Penzance was articulating the ‘traditional’ understanding of ­marriage at a time when a number of threats to that ideal existed.’37 In addition to the possibility of divorce already mentioned, civil marriage was a possibility, and marriages according to Jewish rites had been legally recognised since the XVIII century, which as Poulter argues, makes the appeal to Christian marriage as a prerequisite for legal recognition somewhat illogical.38 This raises the question of what was really going on in this case: why was the court determined to refuse to recognise the Mormon wedding as having generated a valid marriage? Probert’s convincing hypothesis is that the court felt the need to arm the barricades against a perceived assault on core societal values, and he emphasises the anxiety around European settlers in the United States apparently regressing to a more ‘primitive’ state of society. The supposedly 34 35 36 37 38

“Government Consultation on Same Sex Marriage,” General Synod of the Church of England GS Misc 1027, 2012, 2. See for example, William Farris, Daily Life and Demographics in Ancient Japan (Michigan: University of Michigan Centre for Japanese Studies, 2009), 134; Jean Markale, Women of the Celts (Vermont: Inner Traditions International, 1986), 36. Genesis 29. Rebecca Probert, “Hyde v Hyde: Defining or Defending Marriage,” Child and Family Law Quarterly 19, no. 3 (2007): 322, 325. Sebastian Poulter, “Hyde v Hyde: A reappraisal,” Child and Family Law Quarterly, no. 25 (1976): 475, 479.

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benevolent, civilising imposition of British colonial rule was a justification for the exploitation of the Empire, and this worldview was necessarily predicated on the premise of ‘Anglo-Saxon’ superiority, because an Anglophone society eschewing a model of family perceived as a hallmark of civilisation was, in some sense, an existential threat. It undermined a hierarchical vision of humanity which placed northern Europeans at the top of the pyramid, and a narrative of inexorable progress. As added to this narrative, the idea of polygamy played into mid-Victorian terrors about sexual excess and corruption.39 There was the fear of naïve young women being seduced away to live in sin with men who were not truly their husbands, and the unchecked licentiousness of men permitted to cohabit with multiple wives. When you add into the mix the fascination and alarm at new religious movements, and Mormonism in particular, the cocktail becomes even more heady. The general public lapped up reports in newspapers and magazines, with Conan Doyle famously using Mormons in Utah as part of the backdrop for the first Sherlock Holmes novel.40 The allure is perhaps not dissimilar to the thirst of reality television programmes and documentaries in the modern era, featuring religious groups living counter-cultural lives, which frequently transgress accepted norms in wider society. In both cases a combination of curiosity and othering can be observed. Another social phenomenon at this time was the rise of Anglo-Catholicism as the Oxford Movement gained strength, effectively having survived into its second generation.41 This might not immediately seem relevant, but it was a further source of anxiety in relation to women, marriage, religion and ­gender-roles. Husbands were concerned about the idea of their wives ­disclosing intimate details of their marital lives to priests in confession, and the newly formed Anglican Convents presented women from Church of E ­ ngland families with an alternative vocation to marriage and motherhood. Whilst the numbers joining was by no means a deluge, the very idea of an alternative to traditional marriage and life under male-headship was alarming for some. All things considered, there are a plethora of reasons why Lord Penzance may have felt strongly that there was no viable choice but to bolster what we interpreted as Christian marriage, although he almost certainly neither saw nor intended the long-term repercussions. It is apparent enough why a mid-Victorian 39 40 41

Violet Fenn, Sex and Sexuality in Victorian Britain (Philadelphia: Pen and Sword P ­ ublishing, 2020). Arthur Conan Doyle, “A Study in Scarlett,” Beeton’s Christmas Annual 1887. John Sheldon Reed, The Glorious Battle: The Cultural Politics of Victorian Anglo-­Catholicism (North Carolina: Bozart Books, 2017).

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judge with the preoccupations of his era desired to construe the facts and law in a way which enabled him to reject polygamy and reassert what he understood as an orthodox understanding of marriage, but as Probert notes, it is less clear why contemporary observers would be driven to cling so tightly to the definition which he laid out.42 As she points out, given how malleable precedent can be, and the ease with which judges have distinguished Hyde v Hyde when it has suited them, it can only really be concluded that judges affirm it when they, like Lord Penzance, are seeking to maintain a particular position. Probert was writing in 2007, prior to the introduction of same-sex marriage,43 and when the marriage for transsexual people enabled by gender recognition legislation was still relatively new.44 These debates have now moved on, but the point that Probert makes is interesting in relation to our central concern, namely whether the Christian elements of legal reasoning from previous ­generations have a deleterious impact upon our juridical framework. Read on its own terms, Hyde v Hyde is a decision rooted in an explicitly Christian worldview, and it affirms that the law of England and Wales must necessarily support an understanding of matrimony which is common to all Christian States. Nevertheless, does this actually mean that it successfully embeds Christian values in the legal framework? Are the courts obliged to accept that marriage as recognised in England and Wales is Christian in origin, and possibly character? The short answer would appear to be no. Firstly, as we have demonstrated, a number of the assertions made within Hyde v Hyde were palpably untrue even in 1866, and Lord Penzance had no power to render marriage as recognised by the State ‘Christian,’ when Jewish and civil marriage were established juridical realities, nor to erase divorce from the statute book. Secondly, as Probert powerfully highlights, judges are more than capable of distinguishing cases when they desire to do so. Thirdly, with the introduction of readily available divorce, women’s rights to financial autonomy and equal pay, and same-sex marriage, Parliament has repeatedly driven a coach and horses through many aspects of the Hyde v Hyde definition that did stand up to scrutiny in the 1866. This does not mean, however, that we can simply dismiss the dicta in this ruling as having failed to leave a religious imprint on the legal framework. Its lurking presence means that those who wish to defend a conservative understanding of marriage and resist its expansion will find support for their stance. 42 43 44

Rebecca Probert, “Hyde v Hyde: Defining or Defending Marriage,” Child and Family Law Quarterly 19, no. 3 (2007): 322, 325. Marriage (Same Sex Couples) Act 2013. Gender Recognition Act 2004.

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It is true that there is scope for debate as to whether the values expressed by the court in Hyde as Christian are religious, rather than cultural in nature, but it is unlikely to be fruitful to try to disentangle these two concepts. Pragmatically speaking, religion cannot exist in a cultural vacuum, and whilst Lord Penzance might have been championing a number of causes from which many twentyfirst century Christians would be keen to distance themselves, his words make it clear that he understood himself to be articulating Christian principles. Not only have judges followed Hyde v Hyde when they have been inclined to do so, third parties have leapt upon it to justify their own claims to legal orthodoxy. As Coningsby observed, the Church of England has used the ­ruling as a basis for arguing that State and Church law on marriage were fundamentally in harmony.45 In addition, as García Oliva and Hall argued, the claim for a ­coterminous understanding of marriage subsisting between Church and State had become untenable even prior to the passage of the Marriage (Same Sex Couples) Act.46 For example, civil law did not, at that stage, and does not now, place any restraint upon a person remarrying if they have obtained a valid divorce.47 In stark contrast, whilst remarriage within the lifetime of a former spouse is permitted by the Church of England, it would not be considered appropriate to offer this to an openly unrepentant serial adulterer who wants to marry the party to the affair which ended marriage number five. Nonetheless, despite the uncontroversial distance between civil marriage and Church of England marriage, opponents of same-sex marriage were prepared to turn a Nelsonian blind eye to the distinctions, and protest that the two concepts were coterminous, relying on Hyde v Hyde for support. The expression of values in this case is perhaps of particular significance because Marriage Law is an unusual aspect of the legal framework, in that it now functions to fulfil a self-consciously symbolic purpose. There can be no other interpretation for the maintenance of civil partnership and marriage as registrable adult partnerships, and the admission of heterosexual couples to civil partnership after litigation and a popular campaign.48 Whilst the road taken to this point has been largely by accident, the fact remains that adults can choose which form of partnership they wish to adopt, depending upon their personal convictions.

45 46 47 48

Thomas Coningsby, “An Honourable Estate,” Ecclesiastical Law Journal 1, no. 3 (1988): 10. Javier Garcia Oliva and Helen Hall “Same sex marriage: an inevitable challenge to ­religious liberty and establishment?” Oxford Journal of Law and Religion 3, no. 1 (2014): 25. Matrimonial Causes Act 1973 s 1. R (Steinfeld) v Secretary of State [2018] UKSC 32.

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Civil partnership was introduced in the first instance to provide same-sex couples with the same rights, benefits and duties as heterosexual couples who opted to marry.49 The entire raison d’etre of the legal institution was to avoid according matrimonial status to same-sex unions. Predictably, an arrangement which treated some couples as different, and therefore, implicitly lesser, was intolerable in the eyes of many people, leading to further legislative change around ten years later. Same-sex marriage was not needed to bring homosexual couples parity in financial or property terms, as that was already established, but it was crucial to acknowledge that their loving partnerships were not qualitatively different. Conversely, there were citizens who, irrespective of gender or sexuality, regarded the institution of marriage as irredeemably tainted by patriarchy, heteronormativity, religion or some combination of the three, and this was a driving factor behind the original retention of civil partnership, as well as the expansion of the institution to heterosexuality. The legislature recognised the wide spectrum of views on this question, and acquiesced to demands for couples to be given the ability to choose what form of symbolic commitment they wished to make in order to place themselves on a more secure legal footing. In light of all of this, retaining precedent which asserts that the legal framework is Christian and maintains a Christian doctrine of marriage is undeniably problematic, and even if the likelihood of it being followed or applied is vanishingly small, it transmits an unsatisfactory message. A clear statement from the Supreme Court that the case is no longer good law, and a definition of marriage formulated for the twenty-first century would be a highly positive development. Having reached this point, it behoves us to ask, what conclusions we can draw, if our assessment is that the Christian residue within Donoghue v ­Stevenson is essentially unproblematic, but the doctrine of Hyde v Hyde could profitably be addressed. 4

Common Threads

Firstly, it is an undeniable reality that older case law will contain the imprint of our ancestors’ thoughts. Until the second half of the twentieth century, faith, and Christianity in particular, was a prominent feature of collective life. There was broad consensus that it was entirely proper to draw upon religious doctrine when interpreting the legal framework, especially when ­assessing the nature, 49

Civil Partnership Act 2004.

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extent and origin of moral duties. Furthermore, imagery from the Christian Bible and the language of the Church of England prayer book were ingrained features of everyday life and provided a common mode of discourse. All of the above is a given, whether it is desirable or not. However, it leaves us with the dilemma of how to approach this as lawyers seeking to understand and interpret the juridical machinery of a twenty-first liberal democracy, with a constitutional commitment to human rights, and accompanying guarantees of equality for all citizens. The option of erasing old precedents is not on the table, and would not be desirable even if it was. In the first place, this would require a complete reinvention of our legal system, and effectively scrapping the entire common law project. Even if that were to be done, it should be noted that most codified s­ ystems have law reports in some fashion, and dicta of senior judiciary are influential, so the problem would in no sense be solved, it would simply be made less frequent. Secondly, it is often the case that older, sometimes even ancient, judgments, are extremely instructive, and provide clear, succinct analysis of principles which still subsist. Legal reasoning would be poorer if we deprived ourselves of a valuable resource. Unquestionably, it is useful for law students and ­practitioners to sometimes consult classic cases, like Donoghue v Stevenson, or Carlill v Carbolic Smoke Ball.50 A third and related point is that they form part of our Constitutional ­Culture, in other words, the norms, expectations and values which run through our collective life.51 Key decisions shape our legal identity, and steer our sense of where we came from and our direction of travel. The very task of filtering out the aspects of judicial dicta which are incompatible with our current ­worldview is part of our constant reassessment and redefining of ourselves, and maintaining myths can be an asset. Myth in this sense is not a ­pejorative term, but it is used in the anthropological sense of a symbolic narrative that encapsulates ideas or values important to a community. Conn has argued that Donoghue v Stevenson has a folkloric quality, and notes the value in the ­transmission of narrative and the sub-narratives surrounding it, in relation to community self-understanding.52 To take a different concrete example, consider the impact of Somerset v Stewart.53 This was the ruling which confirmed that chattel slavery was 50 51 52 53

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. Javier García Oliva, “Constitutional Culture, Religion and England – Beyond Establishment.” Chapter 9. Joel Conn, “Gingerlore: The legend of Donoghue v Stevenson,” Juridical Review, (2013): 265. Somerset v Stewart (1772) 98 ER 499.

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i­ ncompatible with the principles of common law, and the English legal ­system. Inevitably, there are various aspects of the language and assumptions of the judgment which are problematic from a XXI century perspective, but there are also elements worthy of recognition and celebration, and which evidence both the recognition of human rights and dignity of all people, and the constitutional role of the judiciary in defending these, however much this may upset vested interests. For all of these reasons, we need to find some manner of squaring the circle, and engaging positively with historical precedents, even when they may be suffused with a Christian worldview which is out of step with the XXI century paradigm, yet without allowing cases like Hyde v Hyde to exercise a pernicious influence. We suggest that the answer lies in: 1. Making the distinction between the use of Christian imagery or ­language to convey meaning or emphasis. This is simply part of the ­cultural heritage of this jurisdiction, and need not be seen as problematic in and of itself. Judges of previous generations drew naturally on the Bible as a common point of reference, and those stories or phrases can be applied without any buy-in to their underlying spiritual truth. 2. Where ostensibly Christian values are being articulated, greater care needs to be exercised. It is important to differentiate between situations which are, in reality, still more akin to the situation 1) above, and generally applicable norms, which would be equally affirmed by modern society. For instance, the obligation of parents to care for children was in the past undoubtedly conceived of as a Christian value and duty, but is equally applicable in other cultural contexts, and remains a collective expectation in the XXI century. In contrast, if values are being articulated which are narrower, have an exclusionary effect and are not representative of contemporary society, then these should be firmly and clearly dispensed with. As we have seen from Hyde v Hyde, this is not always the case, and more robust direction from appellate courts would be valuable in signalling which messages the modern framework affirms. Acknowledgement We would like to thank Md Jahid Hossain and Ann Black, for their invaluable assistance during this project.

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Bibliography Books Blackstone, William. Commentaries on the Laws of England. Oxford: Clarendon Press, 1765. Butalia, Tarunjit, and Dianne Small. Religion in Ohio: Profiles of Faith Communities. Ohio: Ohio University Press, 2004. Buxbaum, Yitzhak. The Life and Teaching of Hillel. Plymouth: Bowman and Littlefield, 1994. Doe, Norman. The Law of the Church in Wales. Cardiff: Cardiff University Press, 2002. Farris, William. Daily Life and Demographics in Ancient Japan. Michigan: University of Michigan Centre for Japanese Studies, 2009.Fenn, Violet. Sex and Sexuality in ­Victorian Britain. Philadelphia: Pen and Sword Publishing, 2020. Fox, Robin. Kinship and Marriage: An Anthropological Perspective. Cambridge: ­Cambridge University Press, 1983. Gilmore, Stephen, and Lisa Glennon. Hayes and Williams: Family Law. Oxford: Oxford University Press, 2016. Ibbetson, David. An Introduction to the Law of Obligations. Oxford: Oxford University Press, 2001. Markale, Jean. Women of the Celts. Vermont: Inner Traditions International, 1986. Manent, Pierre. An Intellectual History of Liberalism. trans. Rebecca Balinski. ­Princeton: Princeton University Press, 1995. Oliva, Javier Garcia, and Helen Hall. Law, Religion and the Constitution: Balancing Beliefs in Britain. Abingdon: Routledge, 2018. Parashar, Archana, and Francesca Dominello. Family Law. Cambridge: Cambridge ­University Press, 2017. Reed, John Sheldon. The Glorious Battle: The Cultural Politics of Victorian ­Anglo-­Catholicism. North Carolina: Bozart Books, 2017. Weir, Tony. An Introduction to Tort Law. Oxford: Clarendon Press, 2006.



Book Chapters

Friedman, R Z. “The Individual in Kant and Kierkegaard.” In Kant Kierkegaard on Religion, edited by Dewi Phillips and Timothy Tessin, 95–106. New York: St Martin’s Press, 2000.



Journal Articles

Buxton, Richard. “How the Common Law Gets Made: Hedley Byrne and other Cautionary Tales.” Law Quarterly Review no. 125 (January 2009): 60–78. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Castle, Richard. “Lord Atkin and the Neighbour Test: Origins and Principles of ­Negligence.” Ecclesiastical Law Journal 7, no. 33 (2003): 210–214. Coningsby, Thomas. “An Honourable Estate.” Ecclesiastical Law Journal 1, no. 3 (1988): 10–15. Conn, Joel. “Gingerlore: The legend of Donoghue v Stevenson,” Juridical Review, (2013): 265–278. Cooke, Robin. “An Impossible Distinction.” Law Quarterly Review, no. 107 (January 1991): 46–70. Kleefeld, John. “The Donoghue Diaries: Lord Atkin’s Research Notes on Donoghue v Stevenson.” Juridical Review no. 3 (2013): 375–450. Oliva, Javier Garcia, and Helen Hall. “Same sex marriage: an inevitable challenge to religious liberty and establishment?” Oxford Journal of Law and Religion 3, no. 1 (2014): 25–56. Probert, Rebecca. “Hyde v Hyde: Defining or Defending Marriage.” Child and Family Law Quarterly 19, no. 3 (2007): 322–336. Poulter, Sebastian. “Hyde v Hyde: A reappraisal.” Child and Family Law Quarterly no. 25 (1976): 475–508. Probert, Rebecca. “Hyde v Hyde: Defining or Defending Marriage.” Child and Family Law Quarterly 19, no. 3 (2007): 322–336. Vines, Prue. “The Protected Apology as the modern response to the moral question at the heart of Donoghue v Stevenson.” Juridical Review no. 3 (2013): 483–500.

Cases Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781. Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34. Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. Donoghue v Stevenson [1932] UKHL 100. Home Office v Dorset Yacht Club [1970] AC 1004 HL. Hyde v Hyde [1866] [L.R.] 1 P & D 30. R (Steinfeld) v Secretary of State [2018] UKSC 32. Shergill and Others v Kaira [2013] UKSC 33. Somerset v Stewart (1772) 98 ER 499.



Statues and Convention

Civil Partnership Act 2004. European Convention on Human Rights 1950. Gender Recognition Act 2004. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Matrimonial Causes Act 1973. Marriage (Same Sex Couples) Act 2013.

Website “Understanding Humanism: The Golden Rule,” Humanism UK, https://understandinghumanism.org.uk/.

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PART 2 National Approaches to Religious Freedom

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CHAPTER 7

The Constitutional Principle of Secularism in the Member States of the Council of Europe Rossella Bottoni Few legal categories are as ambiguous as secularism is today.1 The late ­professor Giuseppe Dalla Torre wondered about the usefulness of this notion for legal scholars, who need to resort to precise, terminologically unambiguous concepts. He questioned the meaning of the word ‘secularism,’ which tends to be intuitively regarded as self-explanatory but which in fact can have very different meanings, some of which can be mutually exclusive.2 These differences may be seen when one looks not only at different countries, but also at controversies within the same jurisdiction. The most obvious example is the Lautsi case, where two different understandings of secularism led, respectively, the Second Section of the European Court of Human Rights (ECtHR) to find a violation,3 and the Grand Chamber to reach the opposite conclusion.4 It may thus be agreed with Dalla Torre’s remark that the undeniable plurality of meanings of secularism raises definitional uncertainty when this is used to qualify the character of the state.5 Translation increases this ambiguity. The English term corresponds to a word which – in other languages – reveals a very specific cultural origin deriving etymologically from the Greek λαός and the Latin laicus.6 This is the case 1 The research for this chapter has been carried out in the context of the PRIN Project (2017) ‘From legal pluralism to the intercultural state: personal law, exceptions to general rules and imperative limits in the European legal space’. 2 Il primato della coscienza. Laicità e libertà nell’esperienza giuridica contemporanea (Roma: Studium, 1992), 42–47. Giuseppe Dalla Torre was a prominent Italian scholar of canon and ecclesiastical law and – inter alia – President of the Tribunal of the Vatican City State (1997–2019). 3 Lautsi v. Italy, no. 30814/06, 3 November 2009. The text of all the ECtHR judgments referred to in this chapter are available at https://hudoc.echr.coe.int. 4 Judgment of 18 March 2011. 5 Giuseppe Dalla Torre, “Laicità: un concetto giuridicamente inutile,” Persona y Derecho 53, (2005): 140. 6 On their original meanings, see Jean Baubérot, “La laïcité en France. Histoire et défis actuels,” in Sécularizations et Laïcités, ed. Masashi Haneda (Tokyo: UTCP, 2009), 27. Online version available at https://utcp.c.u-tokyo.ac.jp/publications/2009/04/secularizations_et_laicites_ut. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_008 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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of laïcité in French, laicità in Italian, laicidad in Spanish, Laizität in German, laiklik in Turkish, and so forth. ‘Secularism’ derives from a different Latin word, saeculum,7 which – in most of the languages mentioned above – originated a related but at the same time distinct concept, that is, secularisation (sécularisation in French, secolarizzazione in Italian, and so on). This chapter does not deal with the process of secularisation or any of its stages, nor understand ‘secularism’ as a synonym of state-religion separation. It is concerned with constitutional provisions stating expressly that the state is secular, and it aims to examine how this principle has been understood and applied. It is based on the premise of the impossibility to refer to a single model of secularism and of the existence of different forms resulting from different legal, institutional, political and cultural traditions.8 This is also the premise on which the International Declaration on Secularism in the 21st Century (Déclaration universelle sur la laïcité au XXIe siècle) has been based. In 2005, three sociologists – the French Jean Baubérot, the Mexican Roberto Blancarte and the Canadian Micheline Milot – elaborated this declaration, signed by 250 academics from 30 countries,9 where secularism is considered a key element in democratic life (Art. 6),10 and defined as the harmonisation (Art. 4) of three principles: respect for the freedom of conscience and its individual and collective manifestation (Art. 1), the State’s and public institutions’ autonomy from religion or belief (Art. 2), prohibition of discrimination against individuals (Art. 3). It is not a prerogative of any specific culture, nation, continent,11 and it can exist even in contexts where this 7 8 9 10 11

On this definition, its origin and evolution in English language, see Phil Zuckerman and John R. Shook, “Introduction: The Study of Secularism,” in The Oxford Handbook of Secularism, ed. Phil Zuckerman and John R. Shook (New York: Oxford University Press, 2017), 4–6. In this perspective, see Paolo Cavana, “Modelli di laicità nelle società pluraliste. La questione dei simboli religiosi nello spazio pubblico,” 2005, https://www.olir.it/areetem�atiche/102/documents/Cavana_Campobasso.pdf. Jean Baubérot, “Présentation de la Déclaration universelle sur la laïcité au XXIe siècle,” in Sécularizations et Laïcités, ed. Masashi Haneda (Tokyo: UTCP, 2009), 51–52. The text in French is published in Masashi Haneda (ed.), Sécularizations et Laïcités (Tokyo: UTCP, 2009), 103–09. Secularism is a constitutional principle in most African countries which were colonised by France (a notable exception is the Union of the Comoros). The Kenyan High Court adopted a very broad notion, stating that a sovereign, multi-party democratic country is by definition a secular state (judgment of 24 May 20120, discussed by Jamil Ddamulira Mujuzi, “Separating the Church from State: The Kenyan High Court’s Decision in Jesse Kamau and 25 Others v Attorney General (Judgment of 24 May 2010),” Journal of African Law 55, no. 2 (2011): 314–19. The principle of secularism is enshrined in the constitutions of Bangladesh (preamble and Art. 12), India (preamble) and Nepal (Art. 4 § 1). See respectively Jahid Hossain Bhuiyan, “Secularism in the Constitution of Bangladesh,” The Journal

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term is not traditionally used (Art. 7). The Declaration takes for granted that secularism applies differently in different countries, depending on the balance achieved among the three principles concerned (Arts. 10 and 11). Nevertheless, it stresses that secularism does not mean abolition of religion, but freedom of choice (Art. 14) and warns against forms of sacralisation whereby secularism becomes a civil religion itself (Art. 18). Among the Member States of the Council of Europe,12 the principle of state secularism is enshrined in the constitutions of Azerbaijan,13 France,14 Serbia,15 Russian Federation16 and Turkey.17 In Italy, the Constitutional Court defined

12

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14 15 16

17

of Legal Pluralism and Unofficial Law 49, no. 2 (2107): 204–27; Vidhu Verma, “Secularism in India,” in The Oxford Handbook of Secularism, ed. Phil Zuckerman and John R. Shook (New York: Oxford University Press, 2017), 214–30; Avash Bhandari, “Hindu School in a Secular State: Interpreting Secularism in Nepal Ved Vidhyashram,” Studies in Nepali History and Society 21, no. 1 (2016): 85–112 and Chiara Letizia, “Shaping Secularism in Nepal,” European Bulletin of Himalayan Research 39, (2012): 66–104. The Council of Europe (CoE), founded in 1949, is the continent’s leading human rights organisation. There are 46 Member States, all of whom have signed and ratified the European Convention on Human Rights. This treaty – designed to protect fundamental freedoms, democracy, and the rule of law – established the ECtHR. Unlike the courts of other regional human rights organisations, the ECtHR issues binding judgments. The Committee of Ministers (one of the CoE bodies) supervises their execution and ensures that the countries found to have violated the European Convention comply with them. See https:// www.coe.int/en. The CoE should not be confused with the European Union (EU), a political and economic union, whose origins date back to 1957. Today it is composed of 27 members, which have delegated to the EU some of their sovereignty on specific matters of joint interest. See https://europa.eu. All EU Member States are also members of the CoE. In the preamble, ‘The people of Azerbaijan’ declare the intention ‘to build constitutional and secular state that guarantees the supremacy of law as an expression of the will of the people.’ Art. 7 § I affirms that ‘The state of Azerbaijan is a democratic, law-governed, secular, unitary republic.’ Official English translation at https://en.president.az/azerbaijan /constitution. ‘France shall be an indivisible, secular, democratic and social Republic. […],’ (Art. 1). Official English translation at https://www.conseil-constitutionnel.fr/sites/default/files/as /root/bank_mm/anglais/constiution_anglais_oct2009.pdf. ‘The Republic of Serbia is a secular state,’ (Art. 11 § 1). Official English translation at http:// www.parlament.gov.rs/upload/documents/Constitution_%20of_Serbia_pdf.pdf. ‘The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble,’ (Art. 2). The principle of secularism is restated in the preamble and in Arts. 13, 14 § 1, 68 § 4, 136 and 174. Official English translation at https://www.anayasa.gov .tr/en/legislation/turkish-constiution. ‘The Russian Federation is a secular state. No religion may be established as a state or obligatory one,’ (Art. 14). Official English translation at http://www.constitution.ru /en/10003000-01.htm.

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state secularism as a ‘supreme principle of the constitutional system.’18 The following sections will examine the legal experiences of the three States where the debate on the constitutional principle of secularism has been more intense – that is, France, Turkey and Italy. To avoid the ambiguity of t­ ranslation as well as to highlight the specific features of secularism in each country, I will use this term in its original language, thus respectively laïcité, laiklik and laicità. 1

Laïcité

The cultural strength of the French ideal-type of secularism – promoted at the political and ideological level – has often led to neglect that the path of the emergence and development of the principle of laïcité has been all but unilinear. ‘Over the last decades, French laïcité seems to have become the central protagonist of a story that has been told and (re)told in and outside France. In this story, laïcité is often narrated as the original and purest model, a model that can be a source of inspiration for other countries, but is impossible to replicate: an exceptional model […]. French laïcité appears as a stable, almost ahistorical and timeless paradigm.’19 Far from being so, it has been and is still deeply dependent on specific historical, cultural and political contexts, which has resulted in different interpretations given to it.20 1.1  The Legal Principle of Laïcité and the Conflict with the Catholic Church The word laïcité has been used since the 1870s to refer to the separation between the state and religious institutions, to the neutrality of the former and to its independence from the latter. As early as 1871 Littré introduced it in the Supplement to his Dictionary.21 The debate on laïcité originated in the context of the conflict between ‘the two Frances’ – the Catholic and the Revolutionist ones. The end of the 18th century and the first half of the 19th century were a time of great political instability, with the 1789 Revolution, the establishment and then the fall of Napoleon’s Empire, the restoration of the French monarchy, the proclamation of the Second Republic, then of the Second Empire and 18 19 20 21

Judgment of the Italian Constitutional Court no. 203 of 12 April 1989. Text in o­ riginal l­ anguage at https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=1989&numero=203. Amélie Barras, ‘Secularism in France,’ in The Oxford Handbook of Secularism, ed. Phil Zuckerman and John R. Shook (New York: Oxford University Press, 2017), 142. Barras, ‘Secularism in France,’ 148, 150. Francis Foreaux (ed.), Dictionnaire de culture générale (Paris: Pearson, 2010), 240.

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finally of the Third Republic. These political changes were also the outcome of changing balances of power between two opposite sides promoting two different visions of national identity, that is, militant or intransigent Catholics regarded as natural allies to monarchists, and anticlerical Republicans.22 In that context, it is not surprising that school – where future citizens were educated to national values – became the main battleground. The principle of laïcité found its first legal expression in education-related legislation, starting from the law of 28 March 1882, which substituted moral and civic education to moral and religious one, and lay personnel to religious one.23 Subsequent measures continued the process of cultural and social separation from religion (in particular, the Catholic Church) till the point where Napoleon’s concordatarian regime lost its raison d’être. 1.2 Separatism and Laïcité There was a heated debate on the type of separatism that should be introduced. Some proposed anticlerical projects, but the text that in the end was approved was the most accommodationist one.24 The 1905 Law on Separation on Churches and State25 put an end to the dream that part of France had to restore a Catholic nation, but it did not pursue a hostile policy to the Catholic Church.26 The latter moved to initial rejection to acceptance in 1924,27 when it obtained the guarantee of an unprecedented freedom of organisational autonomy. The 1905 law did not and still does not apply to the entire French territory. Alsace and Moselle were annexed to the Second Reich in 1871 and were still part of it when the separation law was approved. When they were returned to France after the end of World War I, it was decided that they would maintain Napoleon’s concordat of 1801 and system of cultes reconnus, including the provisions establishing and subsidising the Catholic, Protestant, Reformed and Jewish denominations.28 Likewise, it does not apply to some overseas 22 Baubérot, “La laïcité en France,” 29–33. 23 Foreaux, Dictionnaire de culture générale, 240. 24 Jean Baubérot, “Libertà religiosa e laicità in Francia,” Lessico di etica pubblica 2, no. 2 (2011): 63. 25 Loi du 9 décembre 1905 concernant la séparation des Eglises et de l’Etat. Original text at https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000508749/2021-01-26. 26 Baubérot, “La laïcité en France,” 34–35. 27 Encyclical of pope Pius X Maximam Gravissimamque of 18 January 1924. Text in Italian at http://www.vatican.va/content/pius-xi/it/encyclicals/documents/hf_p-xi_enc_19240118 _maximam-gravissimamque.html. 28 Francis Messner, “Le droit des cultes dans les départements du Rhin et de la Moselle,” Revue européenne des relations Eglises-Etat 1, (1994): 37–53. This is the territory where ‘concordatary laïcité’ – as defined by Baubérot – applies.

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territories (in Mayotte a personal-status system based on customary and Islamic law was in force until recently).29 Separatism remained dead letter in colonial-era Algeria, where French Republicans preferred to continue the traditional jurisdictionalist policy.30 With the approval of the 1905 law the principle of laïcité has become indivisible from state-religion separation,31 although the law does not mention it explicitly. Nevertheless, it has always been regarded as enshrining the two aspects (one positive and the other one negative) which have since characterised the French legal notion of secularism.32 The former is the guarantee of unlimited freedom of conscience, and of freedom of manifestation of worship subject to limitations necessary to protect public order. The latter is the prohibition to establish and subsidise religious denominations.33 1.3 The Constitutional Principle of Laïcité and Islam Only in 1946 was the principle of laïcité enshrined in the constitution (of the Fourth Republic): Art. 1 defined France as an indivisible, secular (laïque), democratic and social Republic.34 This provision has been reiterated by the new constitution (of the Fifth Republic) adopted in 1958 and currently binding. Over the 20th century, the conflict with the Catholic Church gradually extinguished and a largely shared agreement was found over the coexistence between secular public schools and private schools (including r­ eligion-­oriented ones, the greatest majority of which are Catholic).35 Nevertheless, the old conflict with the majority religion seems to have been substituted by a new one with the largest religious minority, Islam. The main issues revolving around laïcité – public funding, the delivery of public services including its personnel’s conduct, and the conduct of public services’ users – have not concerned only

29 30 31 32 33

34 35

Conseil d’État, Réflexions sur la laïcité (Paris: La Documentation Française, 2004), 269–72. Franck Frégosi, “Islam et État en Algérie. Du gallicanisme au fondamentalisme d’État,” Revue du monde musulman et de la Méditerranée 65, (1992): 62. The French State Council has defined the separation law as the keystone of laïcité. See Conseil d’État, Réflexions sur la laïcité, 246, 258. Jean Rivero, quoted by Conseil d’État, Réflexions sur la laïcité, 278. The prohibition on financial support is not absolute. There are significant sources of indirect public funding, for example as regards chaplaincies, Catholic churches built before 1905, and religion-oriented private schools. See Francis Messner, “Le financement des cultes en France,” in The Financing of Religious Communities in the European Union, ed. Brigitte Basdevant-Gaudemet and Salvatore Berlingò (Leuven: Peeters, 2009), 155–68. Original text at https://www.elysee.fr/la-presidence/la-constitution-du-27-octobre-1946. Baubérot, “La laïcité en France,” 35–36.

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Islam,36 but the wearing of Islamic symbols is the contemporary challenge to laïcité that is most often referred to in political, academic and public discourse. Like with the Catholic Church, the main battleground has been in schools, where young people socialise and develop national identity. In 1989, three Muslim students refused to take off their headscarf at school as required by the principal’s directive. This issue became ‘the Dreyfus Affair of the Fifth Republic.’37 The controversy which arose went well beyond the specific situation and was fueled by a number of other factors. 1989 was the bicentennial of the French Revolution as well as the year of the Salman Rushdie affair, which strongly impressed the West at large and which, in the case of France, added to the uneasiness to deal with the post-colonial reality. Algeria’s decolonisation had been violent and the presence in the French territory of northern African Muslims coming from former French colonies was being questioned. The memory of the events of May 1968 also played a negative role in raising again the issue of ‘student’s rights.’ Last but not least, the wearing of the Islamic headscarf was linked to women’s religious-based submission to men. This was the most remarkable development as regards the understanding of laïcité. This principle in the past was never invoked or used to promote female emancipation. The ‘abstract citizen’ devised since the French Revolution and entitled to the new rights was a man, not a human being as such. Women were excluded from the political and public sphere and relegated at home to their traditional role of wives and mothers.38 In the opinion no. 346.893 issued on 27 November 1989, the Council of State held that the wearing of religious symbols by students was not per se inconsistent with the principle of laïcité insofar as it was a manifestation of the freedom of expression and religion. Nevertheless, this freedom did not include the wearing of symbols which – by their own nature, the conditions in which they were worn individually or collectively, or their conspicuous character – constituted an act of repression, provocation, proselytism or propaganda.39 In the subsequent years, the idea of the inherent incompatibility between the wearing of the Islamic headscarf and laïcité gradually prevailed. The civil war that ravaged Algeria in the 1990s and the news on the violent acts committed by Islamic-oriented forces, as well as the terrorist attacks on 11 36 37 38 39

John Bell, “Secularism French Style,” European Public Law 23, no. 2 (2017): 238–39 and 244. Blandine Chelini-Pont, “Is laïcité the civil religion of France?,” The George Washington International Law Review 41 (2010): 784. Baubérot, “La laïcité en France,” 31, 39–41. See also Barras, “Secularism in France,” 147. Original text at http://affairesjuridiques.aphp.fr/textes/avis-n-346-893-du-conseil-detat27111989-port-du-foulard-islamique.

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September 2001 contributed to the increasing hostility to the Islamic headscarf.40 Laborde has argued that ‘the wearing of headscarves in schools was problematic in France because it questioned the normative relevance of the three interpretations of laïcité at the same time,’ respectively as (1) neutrality, (2) autonomy, and (3) community.41 State neutrality has always been a leitmotiv in all discourses around laïcité. The State must be indifferent to religion or belief, because the equality of all citizens before the law implies that all of them, regardless of their religion or belief, must have equal access and equal opportunities to use the public space. There seems to be nothing objectionable in this assumption, but in the French ideological construction, indifference must be pursued not only by the State, but also by citizens themselves, who are expected to disregard their religion or belief in the public sphere in general, and at school in particular. Even more, they are ‘required not only to leave behind, but often to transcend, their particularisms by endorsing a superior public identity.’42 Other scholars have criticised the notion of State neutrality. Barras has argued that, in today’s France, this seems to be defined above all by an oppositional relationship with Islamic garments.43 Palomino has warned about the myth of neutrality: there is no such a thing as a truly neutral state. ‘It would certainly be easy from any point of view – including a liberal ­perspective – to confuse non-­interference in individuals’ conceptions of ethics or the good life with ethical neutrality on the part of the state. But it is undeniable that the state is not ethically neutral from the moment that, for example, it establishes a criminal code.’44 He further contends that ‘neutrality and education are incompatible concepts. Education means the transmission of values; wherever values are transmitted, neutrality is absent.’45 This leads to the second meaning identified by Laborde, that is, autonomy. Laïcité is seen as a philosophy of human emancipation and of education. School must free young generations from transcendent and heteronomous norms (symbolised in this case by the wearing of religious symbols) and educate them to be enlightened citizens.46 The latter then become part of a community – the third and last meaning of laïcité questioned by the Islamic headscarf. Laïcité understood as a community embodies the aspiration to create ‘a new civic bond, which would 40 41 42 43 44 45 46

Baubérot, “Libertà religiosa e laicità in Francia,” 42; Baubérot, “La laïcité en France,” 67. Cécile Laborde, “On Republican Toleration,” Constellations 9, no. 2 (2002): 168. Laborde, “On Republican Toleration,” 170–71. Barras, “Secularism in France,” 145. Rafael Palomino, “Religion and Neutrality: Myth, Principle, and Meaning,” BYU Law Review 3, (2011): 656–57. Palomino, “Religion and Neutrality,” 682. Laborde, “On Republican Toleration,” 171–75.

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unite citizens in common love of the secular republic,’47 that is, to establish a sort of new civil religion: ‘it is easy to see that this term in France today has a connotation that is not at all ‘laïque’ but is closer to the sacred.’48 In 2003 President of France Chirac defined schools as Republican sanctuaries49 and the Commission on the Reflection on the Application of the Principle of Laïcité in the Republic – or Stasi Commission after its chairman – issued a report where it recommended the approval of a law prohibiting the wearing of conspicuous religious symbols at all levels of public education except university.50 Law no. 228 of 15 March 200451 has extended the realm of application of the principle of laïcité – which until that moment had been basically understood as applying to the state and public servants – to the users of public services. Its language is neutral, but the abovementioned public and political debate makes it undeniable that it was meant to target implicitly the Islamic headscarf,52 among other reasons because it epitomises gender inequality.53 This assumption results in the paradoxical effect to deny – in the name of the principle of autonomy – women’s right to choose whether or not to wear a religious symbol.54 Alessandro Ferrari has stressed that the Islamic headscarf has a semantic richness which democratic and pluralist societies like the French one could (and should) have fully developed, by recognising that every person may attach a different meaning to it. By contrast, an interpretation has been imposed which is dogmatic, univocal and external to the subjects concerned, who look like trapped in an interpretative cage whose key they do not possess. This has also led to debase the role of school as the most suited place to freely develop one’s personality. On the other hand, if the Islamic headscarf had seriously threatened gender equality, then the lawmaker should have prohibited it also in private schools, to which in fact the prohibition does not 47 48 49 50 51

52 53 54

Laborde, “On Republican Toleration,” 175. Chelini-Pont, “Is laïcité the civil religion of France?”: 769. Quoted by Barras, “Secularism in France,” 145. Commission de réflexion sur l’application du principe de laïcité dans la République, ­Rapport au Président de la République, 11 December 2003, 68, https://www.vie-publique .fr/sites/default/files/rapport/pdf/034000725.pdf. Loi n° 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics. Original text at https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000417977. Nevertheless, other religious minorities – and the Sikhs in particular – have been impacted as well. Barras, “Secularism in France,” 145–48. See T. Jeremy Gunn, “French Secularism at Utopia and Myth,” Houston Law Review 42, no. 1 (2005): 99, 101.

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apply. A ­number of Muslim students thus enrolled in Catholic-oriented private schools, which paradoxically result to be more inclusive than public ones.55 The 2010 law prohibiting the wearing of clothing concealing one’s face,56 implicitly targeting the burqa and the niqab, was approved in the name of the respect for public order, and not laïcité.57 The latter was connected to the controversy over the burkini, which was prohibited on a number of French beaches in the summer of 2016 in the aftermath of the terrorist attack of 14 July in Nice. The surrealist tones of the ensuing debate are perhaps best represented by Prime Minister Manuel Valls’s grotesque reference to bare-breasted Marianne as the symbolic representation of France.58 In the meantime, France, like other European countries, is pursuing the project to develop a national Islam, just like it did with Catholicism, with the difference that Islam is being asked to democratise itself whereas the Catholic Church was only asked to respect the laws guaranteeing the democratic order.59 2

Laiklik

In Turkey, the political and ideological discourse on the principle of laiklik – before the AKP’s rise to power – relied on some of the same assumptions which have animated the French debate, first of all the myth of State neutrality and the alleged danger to female emancipation posed by the Islamic headscarf. At the same time, there are some important differences. 2.1 From the Ottoman Empire to the Republic of Turkey In Refah Partisi (the Welfare Party) and Others v. Turkey, the ECtHR ‘observe[d] that there was already an Islamic theocratic regime under Ottoman law. When the former theocratic regime was dismantled and the republican regime was 55

56 57 58

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Alessandro Ferrari, “Velo musulmano e laicità francese: una difficile integrazione,” in Islam ed Europa: i simboli religiosi nei diritti del vecchio continente, ed. Silvio Ferrari (Bari: Carocci, 2006), 93–132. See also Paolo Cavana, I segni della discordia. Laicità e simboli ­religiosi in Francia (Torino: Giappichelli, 2004), 85. Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public. Original text at https://www.legifrance.gouv.fr/loda/id/JORFTEXT000022911670. Baubérot, “Libertà religiosa e laicità in Francia,” 68. Dimitri Almeida, “Marianne at the Beach: The French Burkini Controversy and the Shifting Meanings of Republican Secularism,” Journal of Intercultural Studies 39, no. 1 (2018): 20–34. See also Aheda Zanetti, “I created the burkini to give women freedom, not to take it away,” The Guardian, August 24, 2016. Baubérot, “La laïcité en France,” 44–5.

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being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice.’60 This is a remarkable example of the inaccurate historical views prevailing in the past but regrettably still endorsed today. The Ottoman constitution defined the Emperor, under the title of Supreme Caliph, the protector of the Muslim religion (Art. 4) and Islam the State religion (Art. 11).61 These provisions were similar to those in force in northern European countries. Until 2012, the Norwegian king had the constitutional duty to maintain and protect the Evangelical-Lutheran religion. The Evangelical-Lutheran Church is still the National Church in Norway as well as in Denmark, Iceland and Sweden. Queen Elizabeth II is still the Supreme Governor of the Church of England, which has the status of established Church. Nevertheless, none of these countries may be regarded as theocratic.62 Theocracy is a system characterised by the assumption of civil powers by the religious authority.63 The highest religious authority in the Ottoman Empire was not the Emperor, but the Şeyhülislâm. He was appointed and dismissed just like any other minister, and his office resembled more and more a department of religious affairs with the passing of time. In 1920 the Grand National Assembly of Ankara reformed and renamed it as Department of Sharia and Charitable Foundations, then abolished and replaced by the Directorate of Religious Affairs in 1924. Since its establishment, it has been competent for the administration of mosques and the training, appointment and dismissals of ministers of worship.64 Mustafa Kemal, the ‘Father of the New Turkey’, aimed not so much to eradicate Islam as to promote a ‘contemporary’ version (çağdaş İslam). As he stated, progress was not hindered by Islam in itself, but by superstitions and false beliefs accumulated over centuries of obscurantism. Turks had to be freed from ignorance and taught that the version of religion propagated by the Republic – grounded on reason – was the most authentic.65 In order to achieve this aim, religion could not be separated (that is, made 60 61 62

Para. 125, nos. 41340/98 et al., 13 February 2003. English translation at https://www.anayasa.gen.tr/1876constitution.htm. For a more detailed discussion, see Rossella Bottoni, “The Origins of Secularism in ­Turkey,” Ecclesiastical Law Journal 9, no. 2 (2007): 175–186. 63 See Francesco Ruffini, Relazioni tra Stato e Chiesa: lineamenti storici e sistematici (­Bologna: il Mulino, 1974), 68. 64 See https://www.diyanet.gov.tr/en-US/Institutional/Detail//1/institutional-­structure-ofpresidency-of-religious-affairs. 65 See inter alia Faruk Bilici, “Islam, modernité et éducation religieuse,” in Islam Institutionnel, Islam Parallèle de l’Empire Ottoman a la Turquie Contemporaine (XVIe-XXe siècles), ed. Faruk Bilici (Istanbul: Isis, 2006), 102–103; Ümit Cizre Sakallıoğlu, “Parameters and Strategies of Islam-State Interaction in Republican Turkey,” International Journal of Middle East Studies 28, no. 2 (1996): 236.

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autonomous) from the State, but it was necessary to establish a state department selecting the contents of the official Islam, promoting it and fighting alternative versions. The Presidency of Religious Affairs – as it was renamed in 1950 – was made a constitutional organ by the constitution of 1960. Under Art. 136 of the current constitution, it exercises its duties in accordance with the principle of laiklik. 2.2 Laiklik and Kemalism’s ‘Six Arrows’ It is well known that in 1937 the principle of laiklik was inscribed in the ­constitution of Turkey, which thus became the first country to proclaim the constitutional principle of secularism. In fact, the 1937 constitutional reform did not merely concern laiklik, but more broadly Kemalism’s ‘six arrows.’ Unlike France, Turkey proclaimed secularism as the pillar of an ideological, not legal, system. In the 1927 and 1931 Congresses, the Republican People’s Party, founded by Mustafa Kemal, developed the ideological pillars of Kemalism, that is, republicanism, nationalism, populism, statism, laiklik and revolutionism.66 The ‘six arrows’ were fully re-elaborated in the party’s programme of 1935, whose preamble stated that ‘All of these principles which are the fundamentals of the Party constitute Kemalism.’ Under Art. 5, the party was republican, nationalist, populist, statist, laik and revolutionary. Art. 3 further defined Turkey as a nationalist, populist, statist, laik and revolutionary Republic.67 Two years later, this provision was transposed literally into Art. 2 const., establishing the ‘six arrows’ as the country’s ideological pillars. The elevation of ­Kemalist principles to constitutional rank has made it difficult, if not impossible, for other political parties to elaborate and implement alternative programmes: the opposition to Mustafa Kemal and his politico-ideological heirs has become ipso facto the repudiation of the Constitution’s principles and the betrayal of the Republic. The preamble to the current constitution still safeguards Kemalist heritage, declaring to be ‘in line with the concept of nationalism introduced by the founder of the Republic of Turkey, Atatürk, the immortal leader and the unrivalled hero, and his reforms and principles,’ and affording no protection to activities against inter alia ‘the nationalism, principles, reforms and civilisationism of Atatürk.’ The constitutional principle of laiklik may not be isolated from the ideological framework of Kemalism and may only be understood in relation to the other Kemalist arrows – in particular nationalism and revolutionism. The 66 67

Suna Kili, Kemalism (Istanbul, Robert College: 1969), 60–69. An English translation is available in Robert G. Landen, The Emergence of the Modern ­Middle East. Selected Readings (New York: Van Nostrand Reinhold Company, 1970), 236–249.

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former did not ground an aggressive foreign policy, but founded the idealtype of the new Turk, the Homo Kemalicus,68 an ethnic Turk and Sunni Muslim – devout but not attached to allegedly archaic religious principles and practices. As known, the wearing of the Islamic headscarf was prohibited for most of the Republican history before the emergence of the AKP (Adalet ve Kalkınma Partisi – Justice and Development Party). The common view was that Turkey prohibited religious symbols as inconsistent with the principle of laiklik, but this did not explain why the display of other Islamic symbols was permitted, or even made compulsory. Under Art. 3 const., Turkey’s flag is composed of a white crescent and star on a red background. Art. 4 const. prohibits both its amendment and any proposal of amendment. In fact, Turkey has not prohibited all religious symbols, but only those inconsistent with the new national ideal of contemporary Islam. In the Orientalist view the Islamic headscarf has always epitomised the ‘backward’ essence of Islam. By contrast, the crescent and the star are not associated to anything evil, and the former was even chosen as the Islamic symbol of the humanitarian network of the International Red Cross and Red Crescent. Therefore, the white crescent and star have always been displayed on the Turkish flag, which is one of the most important symbols of national identity.69 From the very beginning, the principle of nationalism has prohibited or at least limited all identitary expressions not fitting into the ideal-type of Homo Kemalicus. Suffice it to think to the restrictions on Kurds’ language and cultural rights and on Alevis’ religious manifestations. Likewise, past restrictions on the Islamic headscarf should be read in the light not of laiklik alone, but in conjunction with nationalism. As regards revolutionism, according to Art. 5(f) of the 1935 programme, ‘The Party does not consider itself bound by progressive and evolutionary principles in finding measures in the State administration. The Party holds it essential to remain faithful to the principles born of revolutions which our nation has made with great sacrifices, and to defend these principles which have since been elaborated.’ Mustafa Kemal concluded his famous 6-day speech (Nutuk) by laying ‘this holy treasure […] in the hands of the youth of Turkey.’70 The constitutionalisation of the principle of revolutionism committed present and future generations to remain loyal to Kemalist arrows. This duty was actually 68 69 70

This expression was coined by M. Hakan Yavuz and John L. Esposito (eds.), Turkish Islam and Secular State (Syracuse: Syracuse University Press, 2003). Rossella Bottoni, “The Headscarf Issue at State Institutions in Turkey: From the Kemalist Age to Recent Developments,” in Freedom of Religion and Belief in Turkey, ed. Özgür Çinar and Mine Yıldırım (Cambridge: Cambridge Scholars Publishing, 2014), 122. A speech delivered by Ghazi Mustapha Kemal (Atatürk) in October 1927. Nutuk (Istanbul: Üçdal , 1985), 723.

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performed by the army, which led four coups in 1960, 1971, 1980 and 1997. The Constitutional Court, too, carried out this task relentlessly: since 1962 it has declared the constitutional illegitimacy even of laws approved in the framework of the adoption of the acquis communautaire, as liable to undermine Turkey’s independence in the political, cultural or economic field, and it has dissolved over twenty-five political parties – an appalling record when contrasted to the number of three parties dissolved in the whole Western Europe since the end of World War II.71 2.3 The Alleged Link between Laiklik and Democracy For a long time, it was assumed, not least by the ECtHR, that laiklik was the guarantor of democracy against Islamic fundamentalism, represented by the spread of the Islamic veil and the rise of Islamic-oriented parties. In the judgment of 7 March 1989 concerning the headscarf, the Constitutional Court defined laiklik as ‘an essential condition for democracy,’ as ‘the civil organiser of political, social and cultural life, based on national sovereignty, democracy, freedom and science,’ and as ‘the principle which offers the individual the possibility to affirm his or her own personality through freedom of thought and which, by the distinction it makes between politics and religious beliefs, renders freedom of conscience and religion effective.’72 In the judgment of 16 January 1998 on the dissolution of the Refah Partisi, the same court held that laiklik had been ‘the instrument of the transition to democracy’ and was ‘the philosophical essence of life in Turkey,’ and it went as far as saying that ‘persons of different beliefs, desiring to live together, were encouraged to do so by the State’s egalitarian attitude towards them.’73 Nevertheless, these statements are inconsistent with the decades-long ­practice to resort to the principle of laiklik in order to limit the freedoms of nonMuslims,74 members of tarikat (Sufi brotherhoods),75 Alevis,76 atheists and

71 72 73 74 75 76

Venice Commission, Opinion on the Constitutional and Legal Provisions Relevant to the P­ rohibition of Political Parties in Turkey, 13–14 March 2009, in http://www.venice.coe.int. Turkish Official Gazette no. 20216 of 5 July 1989. An English translation of some excerpts may be found in ECtHR, Leyla Şahin v. Turkey, no. 44774/98, 10 November 2005, para 39. Turkish Official Gazette no. 23266 of 22 February 1998. An English translation of some excerpts may be found in ECtHR, Refah Partisi, para 40. See inter alia Rossella Bottoni, “The Legal Treatment of Religious Minorities: Non-­Muslims in Turkey and Muslims in Germany,” in Religion, Identity and Politics: Germany and Turkey in Interaction, ed. Haldun Gülalp and Günter Seufert (London: Routledge, 2013), 119–125. See inter alia ECtHR, Ahmet Arslan and Others v. Turkey, no. 41135/98, 23 February 2010. See inter alia ECtHR, Hasan and Eylem Zengin v. Turkey, no. 1448/04, 9 October 2007.

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agnostics.77 The 2003 Report on Turkey’s application for membership of the European Union stressed that ‘the underlying philosophy of the Turkish State comprises elements such as nationalism, an important role for the army, and a rigid attitude to religion, which are hard to reconcile with the founding values of the European Union.’ It concluded that ‘the transformation of a state based on Kemalist ideas into an EU Member State, accepting and sharing the political values we set so much store by in the Union, will be a long drawn-out job.’78 2.4 Laiklik in AKP’s Turkey The AKP’s authoritarian turn started after the 2008 judicial attempt to dissolve it – a turn which a large part of contemporary observers ascribe to the repudiation of the ‘good-old-days’ laiklik, and to its substitution with Islamism. The change in Turkey’s ecclesiastical policy is undeniable – suffice it to think of the lift of the ban on headscarves, and the conversion of the Hagia Sophia museum into a mosque. However, the premises of the AKP’s authoritarianism should be looked for elsewhere and, first all, in the weight of the country’s historical heritage. Authoritarianism has characterised Turkey throughout its republican history. Kemalist Turkey was a one-party regime. In the multiparty period, the military establishment was hegemonic, and the judiciary often acted as an ally of Mustafa Kemal’s political heirs to curb all heterodox political and cultural identities.79 As noted in the field of media – but the same applies to other realms – ‘[w]hen it came to power in 2002, AKP already had at its disposal prohibitive legislation […], media regulatory frameworks […] and government agencies […] that facilitated its authoritarian modus operandi.’80 In the years 1959–2021, the ECtHR delivered 3385 judgments finding, at least, a violation of the ECHR committed by Turkey, which regrettably ranks first amongst the Member States of the Council of Europe by number of violations.81 Most of them predate the AKP’s rise to power. This non-democratic tradition has just provided fertile ground for Erdoğan’s personal inclination to authoritarianism.82

77 78 79 80 81 82

See inter alia ECtHR, İ. A. v. Turkey, no. 42571/98, 13 September 2005. Arie M. Oostlander, Report A5-0160/2003 on Turkey’s application for membership of the European Union, 20 May 2003, http://www.europarl.europa.eu. Rossella Bottoni, Il principio di laicità in Turchia. Profili storico-giuridici (Milano: Vita e Pensiero, 2012), 162–254. Bilge Yeşil, “Authoritarian Turn or Continuity? Governance of Media through Capture and Discipline in the AKP Era,” South European Society and Politics 23, no. 2 (2018): 253. Https://www.echr.coe.int/Documents/Stats_violation_1959_2021_ENG.pdf. See Halil Karaveli, “Turkey’s Authoritarian Legacy,” The Cairo Review of Global Affairs 25, (2017): 63–71.

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The outcomes of the AKP’s Islamist policies may be debated, but pre-AKP laiklik should not be regretted. A major obstacle to Turkey’s democratisation has always been an antipluralist application of laiklik, which did not serve as an instrument to guarantee democracy as founded on the undisputed recognition of human rights, and which protected instead its Kemalist version, suppressing or restricting any alternative or dissident identity manifestations. The real issue does not seem to be the remodelling of the principle of laiklik, but the failed revision of nationalism and the most assimilationist contents of Kemalism.83 3

Laicità

Unlike laïcité in France and laiklik in pre-AKP Turkey, laicità in Italy has not been posed by the State as a civilisational element founding national i­ dentity. Heated debates have indeed taken place, but controversies have originated around the State’s – and not citizens’ – laicità. They have generally been ­confined to bioethical issues where the notion of public morality is most influenced by religion, or to the traditional field of State-religion relationships (for example, the display of the crucifix in public buildings as the symbol of Italy’s Catholic identity). The affirmation of the principle of laicità has accompanied the process of de-confessionalisation, which, in the Italian context, should not be understood as relegation of the Catholic religion to the private sphere, but as pluralisation of the legal system. There has been no hijab issue, and legal provisions allowing Catholic nuns to cover their head in ID pictures have been extended to Muslim women wearing a headscarf. Full-face veils have been occasionally debated, and two Italian regions (Lombardy and Veneto) have prohibited them in public buildings, including government offices and hospitals. However, both laws were approved to protect public order by forbidding garments concealing the wearer’s identity, and did not call into question Muslims’ attachment to democracy or gender equality.84

83

84

This is the position which can be read between the lines of the separate opinion attached by three judges to the ECtHR’s judgment Izzetin Doğan and Others v. Turkey, no. 62649/10, 26 April 2016. For a discussion see Rossella Bottoni, “Turkish Democracy and the Evolving Interpretation of the Principle of Secularism: The European Court of Human Rights’ Perspective,” Balkan Studies 51, (2016): 208–214. Open Society Foundations, Restrictions on Muslim women’s dress in the 28 EU Member States: Current law, recent legal developments, and the state of play, July 2018, 54. Briefing

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3.1 The Confessionist Heritage The 1948 constitution aimed at overcoming the Fascist orientation of the previous regime. Art. 2 recognises the individual’s inviolable rights. Art. 3 guarantees citizens’ equality before the law regardless inter alia of race or religion. Under Art. 19 everyone has the right to freedom of religion.85 Nevertheless, the Italian Republic inherited a significant amount of legislation enacted during the totalitarian period, which froze the transition from confessionism, which had characterised the Fascist period, to substantive pluralism. One of the most hotly debated issues in the Constituent Assembly (25 June 1946–31 January 1948) concerned the 1929 Lateran Agreements, composed of a concordat regulating the relationship between the state and the C ­ atholic Church in Italy, and a treaty solving the Roman Question.86 The former included a good number of provisions inconsistent with the constitutional text which was being drafted. The latter reiterated the norm included in the 1848 constitution (but dropped by the 1948 one), according to which the Catholic Apostolic Roman religion was the sole religion of the state. No political party insisted on the abrogation of the Lateran Agreements, but the majority party, Christian Democracy, managed to secure their express mention in the constitution.87 Art. 7 § 2 stipulates that the relationships between the state and the Catholic Church are regulated by the Lateran Agreements. This provision opened a long debate in Italian scholarship: in the case of contrast between the constitution and the concordat, which one should prevail? The concordat was reshaped in 1984,88 and the contracting parties took the greatest care to harmonise the new agreement with the constitution. The treaty has not been amended, but the state and the Holy See added a protocol to the

85 86 87 88

paper available at https://www.justiceinitiative.org/publications/how-some-eu-memberstates-are-failing-muslim-women. An English translation is available at https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf. For a detailed treatment, see Marco Ventura, Religion and Law in Italy (Alphen aan den Rijn: Wolters Kluwer, 2013). Original texts at https://www.vatican.va/roman_curia/secretariat_state/archivio/documents/rc_seg-st_19290211_patti-lateranensi_it.html. See Gianni Long, Alle origini del pluralismo confessionale: il dibattito sulla libertà religiosa nell’età costituente (Bologna: il Mulino, 1990); Luciano Musselli, Chiesa e stato. Dalla ­resistenza alla costituente (Torino: Giappichelli, 2010). This is formally called ‘Agreement between the Holy See and the Italian Republic amending the Lateran Concordat’, in order to have it protected by Art. 7 § 2 const., but it is in fact an entirely new Concordat. The text in Italian is available at https://www.vatican.va/ roman_curia/secretariat_state/archivio/documents/rc_seg-st_19850603_santa-sede-italia_it.html. On the long revision process, see Carlo Cardia, La riforma del Concordato. Dal confessionismo alla laicità dello Stato (Torino: Einaudi, 1980).

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revised concordat, where they stated that they considered the principle of the Catholic religion as the sole religion of the state no longer in force. The 1948 constitution makes a difference between the Catholic Church and the other religious denominations. Art. 8 § 1 states that all religious ­denominations are equally free before the law, which is not the same as recognising their equality. In fact, the Catholic Church is sovereign and independent in its own sphere (Art. 7 § 1), whereas religious denominations other than the Catholic one (only) have the right to self-organisation according to their own charters, provided that these do not breach Italian law (Art. 8 § 2). This limitation is reasonable, but it formally does not apply to the Catholic Church. The possibility to regulate bilaterally one’s relationships with the state, first available only to the Catholic Church, was extended to religious denominations other than the Catholic one (Art. 8 § 3). Nevertheless, in 1950, when the ­Federal Council of Evangelical Churches requested to start negotiations for a bilateral agreement, the Department for religious affairs of the Ministry of interior affairs rejected the request because ‘a parallelism between the concordat with the Holy See and the agreements with the representatives of religious denominations other than the Catholic one [was] not legally admissible.’89 Only on 21 February 1984, three days after the signing of the revised concordat, was the first bilateral agreement signed with the federation of Evangelical Churches (Tavola Valdese). The Italian Republic also inherited the Fascist Penal Code, enacted in 1930 and still in force, although numerous provisions have been either amended or declared illegitimate by the Constitutional Court over time. At this regard, it should be noted that the Constitutional Court was established only in 1956, and that its second chairman (1957–1961) was Gateano Azzariti, who had chaired the ‘Race Court’ (Tribunale della razza) during the Fascist era.90 This is just one episode highlighting the Republic’s difficulty in overcoming Italy’s totalitarian past. 3.2 Laicità and the 1989 Constitutional Court’s Judgement The guarantee and promotion of substantive, and not merely formal, pluralism has always been one of the greatest challenges to the democratic Italian Republic. The constitution does not directly mention laicità. This was declared a ‘supreme principle’ of the Italian constitutional system by the Italian 89 90

Quoted by Carlo Cardia, Manuale di diritto ecclesiastico (Bologna: il Mulino, 1996), 230. The English translation is mine. Massimiliano Boni, “Gaetano Azzariti: dal Tribunale della razza alla Corte costituzionale,” Contemporanea 4, (2014): 577–608.

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Constitutional Court for the first time in the judgment no. 203/1989. The issue revolved around the teaching of Catholic religion in public schools, prescribed by the concordat.91 Decisions about whether to attend it are free and do not require any justification, but a controversy arose around the practice to force non-attending students to take an alternative course. On that occasion, the Court linked the principle of laicità to Arts. 2, 3, 7, 8, 19 and 2092 const., and defined it as ‘one of the features of the form of the state outlined by the constitutional charter of the Republic.’ This principle ‘does not imply indifference to religion, but the State’s guarantee for the protection of freedom of religion, in a perspective of religious and cultural pluralism’.93 On the merits of the case, the Court held that the teaching of Catholic religion was compulsory for public schools but optional for students. The concordat commits the state to provide for the teaching of Catholic religion in public schools. The course becomes compulsory for those who decide to attend it, whereas the others do not have the obligation to attend an alternative course, because this is not a system of alternative obligations. For non-attending students ‘the alternative is a state of non-obligation. In fact, the provision of some other compulsory subject would constitute a conditioning of that question of conscience, which must remain focused on its sole object: the exercise of the constitutional freedom of religion.’94 Under these terms, the Court regarded the legal regulation of the teaching of Catholic religion as legitimate.95 3.3 Laicità and Pluralisation The Constitutional Court’s judgment made it clear that the Catholic religion should not be relegated to the private sphere but accommodated in a pluralist context. Since then, laicità has been applied as an instrument to pluralise the legal system while – at the same time – safeguarding the traditional position of the Catholic Church. This process has been characterised by the recognition of a number of rights –– which used to be granted only to the Catholic Church – to religious minorities, and it is marked by problems.

91

See Alessandro Ferrari, “Religious Education in Italy,” in The Routledge International Handbook of Religious Education, ed. Derek Davis and Elena Miroshnikova (New York: Routledge, 2013), 175–76. 92 Art. 20 prohibits the discrimination against organisations on the ground of religion. 93 Original text at https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno =1989 &numero=203. All translations into English are mine. 94 Constitutional Court, judgment no. 203/1989, para 9. 95 For a more detailed treatment see Nicola Colaianni, “Il principio supremo di laicità dello Stato e l’insegnamento della religione cattolica,” Foro italiano 114, no. 1 (1989): 1333–42.

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In many realms, the process of religious and cultural pluralisation has been characterised by an intense judicial activity, as contrasted to the lawmaker’s passivity in adapting the legal system to the new needs posed by a plural society. One of the most significant cases was the protection to religion afforded by the Criminal Code, which made it compulsory to prosecute defamation of religion and blasphemy only when they concerned the dogmatic heritage of the Catholic religion, and which reduced penalties in cases of crimes against religious feelings of a religious denomination other than the Catholic one.96 Over 180 judgements were delivered by lower and higher courts from 1956.97 At the beginning, the difference of treatment was justified by a sociological reinterpretation of the principle of Catholicism as the religion not of the state, but of the majority of the population. In the judgment no. 440/1995, the Constitutional Court started the process of equalisation of the Catholic and other religions by invoking the principle of laicità,98 finally formalised in Law no. 85/2006 amending the Criminal Code.99 Today thirteen religious denominations (other than the Catholic Church) regulate bilaterally their relationships with the state.100 This small, privileged group does not include two of the most numerous in Italy: Islam and the Congregation of Jehovah’s Witnesses. These are still regulated by Law no. 1159 of 24 June 1929 on admitted cults,101 another legacy of the Fascist regime, which poses one of the greatest religious freedom-related problems in contemporary Italy.102 They enjoy fewer freedoms and are subject to a greater number 96

Cristiana Cianitto. “The Blasphemy Offence in the Italian Legal System,” in Blasphemy and Freedom of Expression. Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre, ed. Jeroen Temperman and András Koltay (Cambridge: C ­ ambridge University Press, 2018), 343. 97 Maria Cristina Ivaldi, Scritti di diritto ecclesiastico (Roma: Edizioni Nuova Cultura, 2012), 44, 84. 98 See Maria Cristina Ivaldi, La tutela penale in materia religiosa nella giurisprudenza (Milano: Giuffré, 2004). 99 See Cristiana Cianitto, Quando la parola ferisce. Blasfemia e incitamento all’odio religioso nella società contemporanea (Giappichelli: Torino, 2016), 177–204; Anna Gianfreda, Diritto penale e religione tra modelli nazionali e giurisprudenza di Strasburgo (Italia, Regno Unito e Francia) (Milano: Giuffrè, 2012), Chapter 1. 100 The list is available at http://presidenza.governo.it/USRI/confessioni/intese_indice. html#2. See also Francesco Alicino, La legislazione sulla base di intese. I test delle religioni “altre” e degli ateismi (Cacucci, Bari: 2013). 101 Original text at http://presidenza.governo.it/USRI/ufficio_studi/normativa/Legge%20 24%20giugno%201929,%20n.1159.pdf. 102 Alessandro Ferrari and Silvio Ferrari, “Religion and the Secular State: the Italian case,” in Religion and the Secular State: National Reports, ed. Javier Martínez-Torrón and W. Cole Durham, Jr. (Madrid: Universidad Complutense, 2015), 434, 439.

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of checks and controls. No attempt has so far succeeded in abrogating the 1929 law and in substituting it with a new regulation consistent with contemporary standards of protection of religious freedom and suited to face the new challenges posed by the evolution of time and society.103 Cultural pluralism does not enjoy the same protection as religious one. The privileged position of the Catholic Church ‘ends, inevitably, to privilege ­religious over non-religious beliefs (favor religionis).’104 The view that the display of a crucifix in the classroom of a public school (or in any other public building) is not consistent with laicità is shared by a minority of legal ­scholars and courts. The majority views this principle as ‘giving constitutional r­ elevance to the Catholic cultural tradition of the country.’105 After the Lautsi case,106 another judicial saga took place over the request by the Union of Rationalist Atheists and Agnostics to sign a bilateral agreement under Art. 8 § 3 const. The request was rejected: a decision ultimately endorsed by the C ­ onstitutional Court, which recognised the government’s wide political discretion in this matter (judgment no. 52/2016).107 In earlier times, the debate around laicità influenced a restrictive legal regulation of medically assisted procreation (Law no. 40/2004).108 On the other hand, according to Francesco Alicino, the principle of laicità paradoxically shows its potential in those court decisions, where it is not explicitly mentioned and thus succeeds in going beyond the traditional logic of favor religionis and promoting instead the favor libertatis. These have been the cases of the Constitutional Court’s decisions no. 138/2010 on the legal protection of same-sex couples’ lives together and no. 207/2018 on assisted suicide.109

103 Valerio Tozzi, Gianfranco Macrì, and Marco Parisi (eds.), Proposta di riflessione per ­l’emanazione di una legge generale sulle libertà religiose (Torino: Giappichelli, 2010); Laura De Gregorio (ed.), La legge generale sulla libertà religiosa: disegni e dibattiti parlamentari (Tricase: Libellula, 2013). 104 Ferrari and Ferrari, “Religion and the Secular State,” 433. 105 Ferrari and Ferrari, “Religion and the Secular State”, 433, 448. 106 For an overview of the issue of religious symbols in Italy in a comparative perspective, see Stefano Testa Bappenheim, I simboli religiosi nello spazio pubblico. Profili giuridici comparati (Napoli: Editoriale Scientifica, 2019). 107 Francesco Alicino, “Laicità e bilateralità a trent’anni dalla sentenza madre. I test dell’Islam italiano e dell’ateismo militante,” Stato, Chiese e pluralismo confessionale. Rivista telematica (https://www.statoechiese.it), no. 1 (2021): 32–36. 108 See Daniela Milani, “Veluti si Deus daretur: la legge n. 40 del 2004 sulla procreazione medicalmente assistita dal dibattito parlamentare all’articolato,” Quaderni di diritto e politica ecclesiastica, no. 1 (2015): 117–142. 109 Alicino, “Laicità e bilateralità,” 39–40.

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4 Conclusion The legal term ‘secularism’, far from being self-explanatory, has different ­meanings in the countries where it is proclaimed and applied. Its contested nature makes it even more ambiguous: the meaning established by lawmakers and/or courts in France, Turkey, and Italy is hotly discussed and criticised mainly although not exclusively by religious and belief minorities, which struggle, in different forms, to promote a different understanding of secularism. Despite national differences, all experiences examined in this chapter seem to revolve around the myth of state neutrality and its inadequacy to address pluralism. It has been shown that state neutrality becomes illusory when it results in the promotion of a specific ideal-type of national identity. In this ideological discourse, secularism has played a role – albeit to different extents – in all the countries concerned. According to the ECtHR, pluralism is ‘indissociable from a democratic society,’ and the emergence of tensions is one of its ‘unavoidable consequences […]. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.’110 In this context, secularism may not be regarded per se as evidence of the democratic character of a state. It can serve democracy only when it is understood and applied as a means to protect and promote pluralism – or, as Domianello argues, as a ‘procedural technique of regulation of pluralism’ – and not as an end, that is, an ideology competing with other worldviews.111 Bibliography Books Alicino, Francesco. La legislazione sulla base di intese. I test delle religioni “altre” e degli ateismi. Cacucci, Bari: 2013. Bottoni, Rossella. Il principio di laicità in Turchia. Profili storico-giuridici. Milano: Vita e Pensiero, 2012.

110 111

Serif v. Greece, no. 38178/97, 14 December 1999, paras 49 and 53. Sara Domianello, “Prefazione,” in Diritto e religione in Italia. Rapporto nazionale sulla ­salvaguardia della libertà religiosa in regime di pluralismo confessionale e culturale, ed. Sara Domianello (Bologna: il Mulino, 2012), 8.

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Cardia, Carlo. La riforma del Concordato. Dal confessionismo alla laicità dello Stato. Torino: Einaudi, 1980. Cardia, Carlo. Manuale di diritto ecclesiastico. Bologna: il Mulino, 1996. Cavana, Paolo. I segni della discordia. Laicità e simboli religiosi in Francia. Torino: Giappichelli, 2004. Cianitto, Cristiana. Quando la parola ferisce. Blasfemia e incitamento all’odio religioso nella società contemporanea. Giappichelli: Torino, 2016. Dalla Torre, Giuseppe. Il primato della coscienza. Laicità e libertà nell’esperienza ­giuridica contemporanea. Roma: Studium, 1992. De Gregorio, Laura. La legge generale sulla libertà religiosa: disegni e dibattiti parlamentari. Tricase: Libellula, 2013. Foreaux, Francis (ed.). Dictionnaire de culture générale. Paris: Pearson, 2010. Gianfreda, Anna. Diritto penale e religione tra modelli nazionali e giurisprudenza di Strasburgo (Italia, Regno Unito e Francia). Milano: Giuffrè, 2012. Haneda, Masashi (ed.). Sécularizations et Laïcités. Tokyo: UTCP, 2009. Ivaldi, Maria Cristina. La tutela penale in materia religiosa nella giurisprudenza. Milano: Giuffré, 2004. Ivaldi, Maria Cristina. Scritti di diritto ecclesiastico. Roma: Edizioni Nuova Cultura, 2012. Kili, Suna. Kemalism. Istanbul, Robert College: 1969. Landen, Robert G. The Emergence of the Modern Middle East. Selected Readings. New York: Van Nostrand Reinhold Company, 1970. Long, Gianni. Alle origini del pluralismo confessionale: il dibattito sulla libertà religiosa nell’età costituente. Bologna: il Mulino, 1990. Musselli, Luciano. Chiesa e stato. Dalla resistenza alla costituente. Torino: Giappichelli, 2010. Ruffini, Francesco. Relazioni tra Stato e Chiesa: lineamenti storici e sistematici. Bologna: il Mulino, 1974. Testa Bappenheim, Stefano. I simboli religiosi nello spazio pubblico. Profili giuridici comparati. Napoli: Editoriale Scientifica, 2019. Tozzi, Valerio, Macris, Gianfranco, and Parisi, Marco (eds.). Proposta di riflessione per l’emanazione di una legge generale sulle libertà religiose. Torino: Giappichelli, 2010. Ventura, Marco. Religion and Law in Italy. Alphen aan den Rijn: Wolters Kluwer, 2013. Yavuz, M. Yakan, and Esposito, John L. (eds.). Turkish Islam and Secular State. Syracuse: Syracuse University Press, 2003.



Book Chapters

Barras, Amélie. “Secularism in France.” In The Oxford Handbook of Secularism, edited by Phil Zuckerman and John R. Shook, 142–155. New York: Oxford University Press, 2017.

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Baubérot, Jean. “La laïcité en France. Histoire et défis actuels.” In Sécularizations et Laïcités, edited by Masashi Haneda, 27–48. Tokyo: UTCP, 2009. Baubérot, Jean. “Présentation de la Déclaration universelle sur la laïcité au XXIe ­siècle.” In Sécularizations et Laïcités, edited by Masashi Haneda, 51–58. Tokyo: UTCP, 2009. Bilici, Faruk. “Islam, modernité et éducation religieuse.” In Islam Institutionnel, Islam Parallèle de l’Empire Ottoman a la Turquie Contemporaine (XVIe-XXe siècles), edited by Faruk Bilici, 101–22. Istanbul: Isis, 2006. Bottoni, Rossella. “  The Headscarf Issue at State Institutions in Turkey: From the ­Kemalist Age to Recent Developments.” In Freedom of Religion and Belief in Turkey, edited by Özgür Çinar and Mine Yıldırım, 116–38. Cambridge: Cambridge Scholars Publishing, 2014. Bottoni, Rossella. “The Legal Treatment of Religious Minorities: Non-Muslims in ­Turkey and Muslims in Germany.” In Religion, Identity and Politics: Germany and Turkey in Interaction, edited by Haldun Gülalp and Günter Seufert, 119–25. London: Routledge, 2013. Cianitto, Cristiana. “The Blasphemy Offence in the Italian Legal System.” In Blasphemy and Freedom of Expression. Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre, edited by Jeroen Temperman and András Koltay, 339–57. Cambridge: Cambridge University Press, 2018. Domianello, Sara. “Prefazione.” In Diritto e religione in Italia. Rapporto nazionale sulla salvaguardia della libertà religiosa in regime di pluralismo confessionale e culturale, edited by Sara Domianello, 7–10. Bologna: il Mulino, 2012. Ferrari, Alessandro, and Ferrari, Silvio. “Religion and the Secular State: the Italian case.” In Religion and the Secular State: National Reports, edited by Javier Martínez-Torrón and W. Cole Durham, Jr., 431–48. Madrid: Universidad Complutense, 2015. Ferrari, Alessandro. “Religious Education in Italy.” In The Routledge International Handbook of Religious Education, edited by Derek Davis and Elena Miroshnikova, 175–180. New York: Routledge, 2013. Ferrari, Alessandro. “Velo musulmano e laicità francese: una difficile integrazione.” In Islam ed Europa: i simboli religiosi nei diritti del vecchio continente, edited by Silvio Ferrari, 93–132. Bari: Carocci, 2006. Messner, Francis. “Le financement des cultes en France.” In The Financing of Religious Communities in the European Union, edited by Brigitte Basdevant-Gaudemet and Salvatore Berlingò, 155–68. Leuven: Peeters, 2009. Verma, Vidhu. “Secularism in India.” In The Oxford Handbook of Secularism, edited by Phil Zuckerman and John R. Shook, 214–30. New York: Oxford University Press, 2017. Zuckerman, Phil, and Shook, John R. “Introduction: The Study of Secularism.” In The Oxford Handbook of Secularism, edited by Phil Zuckerman and John R. Shook, 1–17. New York: Oxford University Press, 2017.

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Journal Articles

Alicino, Francesco. “Laicità e bilateralità a trent’anni dalla sentenza madre. I test dell’Islam italiano e dell’ateismo militante,” Stato, Chiese e pluralismo confessionale. Rivista telematica (https://www.statoechiese.it), no. 1 (2021): 21–42. Almeida, Dimitri. “Marianne at the Beach: The French Burkini Controversy and the Shifting Meanings of Republican Secularism.” Journal of Intercultural Studies 39, no. 1 (2018): 20–34. Baubérot, Jean. “Libertà religiosa e laicità in Francia.” Lessico di etica pubblica 2, no. 2 (2011): 59–70. Bell, John. “Secularism French Style.” European Public Law 23, no. 2 (2017): 237–44. Bhandari, Avash. “Hindu School in a Secular State: Interpreting Secularism in Nepal Ved Vidhyashram.” Studies in Nepali History and Society 21, no. 1 (2016): 85–112. Bhuiyan, Jahid Hossain. “Secularism in the Constitution of Bangladesh.” The Journal of Legal Pluralism and Unofficial Law 49, no. 2 (2107): 204–27. Boni, Massimiliano. “Gaetano Azzariti: dal Tribunale della razza alla Corte costituziona­ ­le.” Contemporanea 4, (2014): 577–608. Bottoni, Rossella. “The Origins of Secularism in Turkey.” Ecclesiastical Law Journal 9, no. 2 (2007): 175–186. Bottoni, Rossella. “Turkish Democracy and the Evolving Interpretation of the Principle of Secularism: The European Court of Human Rights’ Perspective.” Balkan Studies 51, (2016): 185–214. Cavana, Paolo. “Modelli di laicità nelle società pluraliste. La questione dei simboli religiosi nello spazio pubblico.” 2005, at https://www.olir.it/areetematiche/102 /documents/Cavana_Campobasso.pdf. Chelini-Pont, Blandine. “Is laïcité the civil religion of France?” The George Washington International Law Review 41, (2010): 765–815. Cizre Sakallıoğlu, Ümit. “Parameters and Strategies of Islam-State Interaction in Republican Turkey.” International Journal of Middle East Studies 28, no. 2 (1996): 231–51. Colaianni, Nicola. “Il principio supremo di laicità dello Stato e l’insegnamento della religione cattolica.” Foro italiano 114, no. 1 (1989): 1333–42. Dalla Torre, Giuseppe. “Laicità: un concetto giuridicamente inutile.” Persona y Derecho 53, (2005): 139–56. Frégosi, Franck. “Islam et État en Algérie. Du gallicanisme au fondamentalisme d’État.” Revue du monde musulman et de la Méditerranée 65, (1992): 61–76. Gunn, T. Jeremy. “French Secularism at Utopia and Myth.” Houston Law Review 42, no. 1 (2005): 81–102. Karaveli, Halil. “Turkey’s Authoritarian Legacy.” The Cairo Review of Global Affairs 25, (2017): 63–71. Laborde, Cécile. “On Republican Toleration.” Constellations 9, no. 2 (2002): 167–83.

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Letizia, Chiara. “Shaping Secularism in Nepal.” European Bulletin of Himalayan Research 39, (2012): 66–104. Messner, Francis. “Le droit des cultes dans les départements du Rhin et de la Moselle.” Revue européenne des relations Eglises-Etat 1, (1994): 37–53. Milani, Daniela. “Veluti si Deus daretur: la legge n. 40 del 2004 sulla procreazione medicalmente assistita dal dibattito parlamentare all’articolato.” Quaderni di diritto e politica ecclesiastica, no. 1 (2015): 117–42. Mujuzi, Jamil Ddamulira. “Separating the Church from State: The Kenyan High Court’s Decision in Jesse Kamau and 25 Others v Attorney General (Judgment of 24 May 2010).” Journal of African Law 55, no. 2 (2011): 314–19. Palomino, Rafael. “Religion and Neutrality: Myth, Principle, and Meaning.” BYU Law Review 3, (2011): 657–88. Yeşil, Bilge. “Authoritarian Turn or Continuity? Governance of Media through Capture and Discipline in the AKP Era.” South European Society and Politics 23, no. 2 (2018): 239–57.

Other A speech delivered by Ghazi Mustapha Kemal (Atatürk) in October 1927. Nutuk. ­Istanbul: Üçdal, 1985. Open Society Foundations, Restrictions on Muslim women’s dress in the 28 EU Member States: Current law, recent legal developments, and the state of play, July 2018. B ­ riefing paper available at https://www.justiceinitiative.org/publications/how-some-eumember-states-are-failing-muslim-women. Zanetti, Aheda. “I created the burkini to give women freedom, not to take it away.” The Guardian, August 24, 2016.

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CHAPTER 8

The Religion Clauses in the U.S. Constitution Russell L. Weaver The U.S. Bill of Rights includes two religion clauses: the Establishment Clause and the Free Exercise Clause.1,2 While the Establishment Clause precludes the  government from ‘establishing’ an official religion,3 the Free Exercise Clause guarantees individuals the right to freely exercise the religion of their choice.4 Even though both clauses were originally designed to apply only to the federal government,5 both now apply to the states as well.6 The impetus for the religion clauses can be traced to a history of religious persecution in Europe. As the U.S. Supreme Court recognized in Everson v. Board of Education,7 a ‘large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious 1 Because the writer is American, and the article contains many quotes from U.S. courts, all of which are written in American English rather than in British English, this article deviates from the norm for this series in that it is written in American English in order to maintain consistency within the article. As this chapter was going to press, the Court rendered several momentous decisions regarding the religion clauses. As a result, the Lemon decision was overruled, and the Court has been more protective of Free Exercise rights. Unfortunately, this article does not reflect those changes. 2 U.S. Const., Amdt. 1 (1791). 3 See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989); Lemon v. ­Kurtzman, 403 U.S. 602 (1971); Everson v. Board of Education, 330 U.S. 1 (1947). 4 See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). 5 Indeed, by its own terms, the First Amendment was designed to apply only to congressional actions. It begins “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 6 See Everson v. Board of Education, 330 U.S. 1 (1947). 7 330 U.S. 1 (1947). © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_009 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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supremacy.’8 Early immigrants also left Europe to escape persecution: ‘Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews.’9 Indeed, Europeans had been ‘fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non belief in their doctrines, and failure to pay taxes and tithes to support them.’10 In the Americas, European immigrants often faced additional discrimination. As the Court also noted in Everson, the European practice of establishing religions was ‘transplanted to and thrived in the soil of the new America.’11 Indeed, some of the charters on which the American colonies were founded specifically authorized colonial governments to establish religions which everyone, believers and non-believers alike, were required to support and attend.12 As a result, ‘Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshiping God only as their own consciences dictated.’13 Even though members of other faiths were regarded as ‘outsiders,’ they were ‘compelled to pay tithes and taxes to support government sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.’14 These colonial establishments of religion generated substantial opposition, and led to the adoption of the religion clauses. However, the protections provided by these clauses did not come easily. When the U.S. Constitution was drafted and sent to the states for ratification, it did not contain any prohibitions against religious abuse. The framers of the U.S. Constitution, influenced

8 Ibid., at 8–9. 9 Ibid., at 9. 10 Ibid., at 9. 11 Ibid. 12 Ibid. 13 Ibid., at 10. 14 Ibid.

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by the principles of the Enlightenment,15 incorporated Baron de Montesquieu’s concept of separation of powers16 in the structure of the Constitution.17 ­Having created a federal government of limited and enumerated powers,18 and one whose power was checked by separation of powers principles, the framers concluded that a bill of rights (including explicit protections against the establishment of religion or protections for the free exercise of religion) was not needed.19 Indeed, they feared that the articulation of some rights in the ­Constitution, which might not be all encompassing, might be construed as negating the existence of other rights.20 The framers’ plan floundered when the Constitution was submitted to the states for ratification; so many people objected to the absence of a bill of rights that it became clear that the Constitution might not be ratified absent one.21 In an effort to salvage the Constitution, it was agreed that the Constitution would be ratified ‘as is,’ but that the first 15 16

17 18 19

20 21

See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, ­Massachusetts: Harvard University Press, 1967): 16–29. Baron de Montesquieu, The Spirit of Laws (Cosimo Edition, 2011): 151–152. Montesquieu was cited in the Federalist Papers, see James Madison, Alexander Hamilton & John Jay, The Federalist Papers (The Classic Original Edition), at 139 (citing Federalist No. 47 (Jan. 30, 1788)), as well as in debates at the constitutional convention. See Ralph Ketcham, The Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes and Compromises That Birth to our Government (Signet, 1986): 85, 237, 249, 253, 260, 288, 339, 360. See U.S. Const., Art. I, Sec. 2 [1], Sec. 7 [3], Sec. 8 [11]; U.S. Const., Art. II, Sec. 2 [2] & Sec. 1 [1]; see also Ketcham, supra note 4, at xv. See National Federation of Business v. Sebelius, 567 U.S. 519 (2012); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549, 566 (1995). See National Federation of Independent Business v. Sebelius, 567 U.S. 519, 519–20 (2012). (“Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.” The Federalist No. 84, p. 515 c. Resister ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution ... are reserved to the States respectively, or to the people.” U.S. Const., AMD. 10.”). See James Iredale, “Debates in the Convention of the Commonwealth of North Carolina on the Adoption of the Federal Constitution,” in The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. J. Elliot (2nd ed, 1866): 144, 149. See McDonald v. City of Chicago, 561 U.S. 742, 769 (2010) (“But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution.”); Wallace v. Jaffree, 472 U.S. 78, 92–93 (1985) (White, J., dissenting) (“During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government carried with it a potential for tyranny.”).

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Congress would create and add a bill of rights.22 As a result, the Bill of Rights (including the religion clauses) entered the Constitution as an amendment rather than as a part of the Constitution itself.23 In the ensuing centuries, the courts have struggled to divine the meaning of the religion clauses. There is general agreement that neither the federal government nor the states may ‘establish’ an ‘official religion,’24 and may not enact laws mandating church attendance or requiring individuals to profess a belief or disbelief in any particular religion.25 However, lots of other questions remain unanswered: to what extent may the state provide financial aid to churches or religious schools? To what extent may the state set-up religious displays during the holiday season? To what extent may the state include religious material in school curricula? Specifically, regarding the free exercise clause, issues arose regarding whether individuals are entitled to exemptions from generally applicable laws as an accommodation of their religious beliefs. Finally, there were inherent tensions between the Establishment Clause and the Free Exercise Clause, and courts have struggled to resolve those tensions. This chapter does several things. First, it explores some of the issues that have arisen with regard to the Establishment Clause. Second, it examines whether, and when, the Free Exercise Clause requires an accommodation of religious beliefs which conflict with state-imposed requirements. Finally, the chapter examines the tension between the two religion clauses. 1

The Establishment Clause

The US Supreme Court has encountered special difficulties in its effort to define and apply the Establishment Clause. As noted, the Clause clearly prohibits the establishment of an ‘official religion,’ and it also prohibits laws mandating church attendance or requiring individuals to profess a belief or

22

See McDonald, supra; Marsh v. Chambers, 463 U.S. 783, 816 (1983) ( Brennan, J., dissenting) (“The first 10 Amendments were not enacted because the members of the First C ­ ongress came up with a bright idea one morning; rather, their enactment was forced upon ­Congress by a number of the States as a condition for their ratification of the ­original Constitution.”). 23 See McDonald, supra. 24 See Russell L. Weaver & Catherine Hancock, The First Amendment: Cases, Materials & Problems (Carolina: Carolina Academic Press, 6th ed., 2020): 817. 25 Ibid.

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disbelief in any particular religion.26 The difficulty is that no modern case has involved a governmental attempt to declare an official religion, or to require individuals to engage in religious practices with which they disagree. Most cases involve the question of whether some lesser act (e.g., providing financial aid to religious schools for the teaching of secular subjects) constitutes an ‘establishment’ of religion.27 For many years, the U.S. Supreme Court evaluated possible establishments of religion under a test established in Lemon v. Kurtzman.28 This test, subsequently referred to as the Lemon test, had three components: ‘First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’29 Using that test, the Court struck down a state’s decision to require daily Bible ­readings in public schools,30 as well as its decisions to post a copy of the Ten Commandments in public schools,31 and to create a prayer for school-age children to be read at the beginning of each school day.32 Even though the Lemon test had a superficial appeal, it did not produce logical or consistent results. Applying that test, the Court struck down a law that allowed local governments to loan instructional materials (e.g., maps and charts) to religious schools,33 upheld a law authorizing payments for standardized testing in religious schools provided that the tests were the same tests used in the public schools,34 struck down a law permitting the provision of auxiliary services (e.g., remedial and accelerated and counseling services) in religious schools,35 and struck down a law paying for field trips by children at religious schools.36 Dissatisfaction with these results prompted considerable criticism from justices of the U.S. Supreme Court. For example, former Justice (and later Chief Justice) William Rehnquist, stated that: ‘The Lemon test has simply not provided 26 27 28 29 30 31 32 33 34 35 36

See Weaver & Hancock, supra note 23, at 817. See Lemon v. Kurtzman, 403 U.S. 602 (1971); Everson v. Board of Education, 330 U.S. 1 (1947). 403 U.S. 602 (1971). Ibid., at 612–613. School District of Abington Township v. Schempp, 374 U.S. 203 (1963). Stone v. Graham, 449 U.S. 39 (1980). See Engel v. Vitale, 430 U.S. 421 (1962). See Meek v. Pittenger, 421 U.S. 349 (1975). See Wolman v. Walter, 433 U.S. 229 (1977). See Meek v. Pittenger, 421 U.S. 349 (1975). See Wolman v. Walter, 433 U.S. 229 (1977).

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adequate standards for deciding Establishment Clause cases.’37 He went on to offer examples.38 Justice Scalia summarized the test in the following way: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again. No fewer than five of the currently sitting Justices have, in their own o­ pinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it, when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.39 Finally, Justice O’Connor offered the following thoughts on the Lemon test: ‘It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular Clause. There is, after all, only one Establishment Clause. But this may sometimes do more harm than

37 38

39

See Wallace v. Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist, J., dissenting). Ibid., at 110–111: For example, a State may lend geography textbooks that contain maps, but the State may not lend maps for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing ‘services’ inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school. A State may give cash to a parochial school to pay for the administration of state written tests, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.” Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398–399 (1993) (Scalia, J., concurring) (citations omitted).

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good. Shoehorning new problems into a test that does not reflect the special concerns raised by those problems tends to deform the language of the test.’40 Another test that the Court has used to evaluate Establishment Clause claims is the so-called ‘neutrality’ test. For example, in Everson v Board of Education,41 a case in which a local Board of Education decided to reimburse parents for bus transportation to school, including religious schools, the Court upheld the reimbursement. In doing so, the Court emphasized that the First Amendment ‘requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.’42 Likewise, Mitchell v. Helms43 involved a law that provided federal funds ‘for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.’ In upholding the law, the Court stated that ‘We have consistently turned to the principle of neutrality. If the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.’44 In recent decades, the Court has at times supplanted the Lemon test and the neutrality test with the so-called ‘endorsement’ test.45 Under that test, the Court focuses on whether the governmental action appears to have ‘endorsed’ a particular religious creed. Illustrative is the holding in County of Allegheny 40

Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 718–720 (1994) (O’Connor, J., concurring) (citations omitted). She went on to state that: Relatively simple phrases like “primary effect that neither advances nor inhibits religion” and “entanglement,” acquire more and more complicated definitions which stray ever further from their literal meaning. I think it is more useful to recognize the relevant concerns in each case on their own terms, rather than trying to squeeze them into language that does not really apply to them. Another danger is that the bad test may drive out the good. Rather than taking the opportunity to derive narrower, more precise tests from the case law, courts tend to continually try to patch up the broad test, making it more and more amorphous and distorted. This, I am afraid, has happened with Lemon. Experience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test. Ibid. 41 330 U.S. 1 (1947). 42 Ibid., at 18. 43 530 U.S. 793 (2000). 44 Ibid., at 810. 45 See Agostini v. Felton, 521 U.S. 203 (1997).

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v. American Civil Liberties Union.46 That case involved two holiday displays in and near the Allegheny County courthouse in Pennsylvania. The first display involved a creche (essentially a baby crib with a depiction of baby Jesus) that was prominently displayed inside the courthouse. That display was framed with flowers. The other display was outdoors and included a creche, but also displayed secular signs of the Christmas holidays, a Jewish menorah and a ‘salute to liberty.’ Had the Court applied the Lemon test in the County of Allegheny case, both displays would probably have been struck down since they had the purpose of promoting religion. However, applying the endorsement test, County of Allegheny held that the creche inside the courthouse was invalid, because the government seemed to be endorsing religion, but that the outdoor display was constitutional. The indoor display was unconstitutional because the Court viewed it as a powerful endorsement of the Christian religion. By contrast, the outdoor display was permissible because it included the Jewish symbol, the salute to liberty, and other secular symbols of the holiday season. As a result, the government did not appear to be endorsing any particular religion, but rather was simply participating in some of the rituals of the holiday season. 2

The Free Exercise Clause

The Free Exercise Clause of the First Amendment has presented the U.S. Supreme Court with quite different challenges. For one thing, although that Clause guarantees individuals the right to freely exercise their religions, the Court has had difficulty defining the term ‘religion.’ For example, in United States v. Ballard,47 a man was charged with fraud for claims that he made regarding the “I Am” movement. The charges were based on allegations that Ballard had used aliases such as ‘Saint Germain, Jesus, George Washington, and Godfre Ray King,’ and claimed that he had been selected as a ‘divine messenger’ through which the words of the divine would be communicated to mankind under the teachings commonly known as the ‘I Am’ movement. Finally, defendants claimed that they had the power to heal incurable ailments and diseases, and that they had in fact cured hundreds of afflicted persons. The Court held that it had no power to evaluate the veracity of Ballard’s claims.48 46 492 U.S. 573 (1989). 47 322 U.S. 78 (1944). 48 Ibid., at 86–87: They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to

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Even with recognized religions, issues arise regarding whether laws must be relaxed or give way to conflicting religious beliefs. In a number of early decisions, the U.S. Supreme Court gave people exemptions from laws based on their religious beliefs. For example, in Sherbert v. Verner,49 a member of the Seventh Day Adventist faith was terminated because she refused to work on Saturdays (the Sabbath in her faith). When she was unable to find alternate employment, she sought unemployment compensation, but was denied because she would not accept suitable alternative employment. The difficulty was that potential employers refused to hire her because her religion precluded her from working on Saturdays. The Court concluded that the woman was entitled to unemployment compensation since her refusal to work was premised on her religious beliefs. In recent years, the Court has made it more difficult for individuals to seek exemptions from laws that conflict with their religious beliefs. In Employment Division v. Smith,50 respondents were fired from their jobs for smoking peyote, a hallucinogen. When they applied for unemployment benefits, they were denied on the basis that they had engaged in ‘misconduct’ (smoking peyote). They claimed a right to ingest peyote as part of their Native American religious rights. The Court disagreed, concluding that respondents’ religious beliefs did not exempt them from neutral, generally applicable, laws. Since the law prohibiting the ingestion of peyote was regarded as ‘neutral’ and ‘generally applicable,’ no exemption was needed.51 So, not only were respondents fired from their employment, they were denied unemployment compensation. Courts will intervene to protect religious beliefs when the government has discriminated against religion. For example, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah,52 the Court was confronted by the Santeria religion which believed in the ritual sacrifice of animals. When the Santeria established a church in Hialeah, Florida, the city responded to the concerns of residents by enacting an ordinance prohibiting ritual sacrifice. In striking down the law, o­ thers. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. 49 374 U.S. 398 (1963). 50 494 U.S. 872 (1990). 51 Ibid., at 880–881. 52 507 U.S. 520 (1993).

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the Court emphasized that the ordinance involved discrimination against the Santerias. The Court began by reaffirming Smith’s holding to the effect that a ‘law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’53 However, when a law discriminates against religion, it must be ‘justified by a compelling governmental interest and must be narrowly tailored to advance that interest,’ because the ‘First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.’54 The Court found that the Hialeah law failed that test. The decision in Church of Lukumi Babalu Aye was reaffirmed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.55 In that case, the Colorado Civil Rights Commission cited a bakery for violating the Colorado Anti-Discrimination Ordinance because he would not make wedding cakes for gay couples. In finding that the bakery violated the law, the Court concluded that the bakery was not accorded the ‘neutral and respectful consideration’ to which it was entitled,56 and therefore the State violated its ‘duty under the First Amendment not to base laws or regulations on hostility to religion or a religious viewpoint.’57 The Court concluded that the Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.’58 It is unclear whether the Smith exception for laws that are neutral and generally applicable will hold up over time. In recent years, there has been much litigation on the issue of whether laws that prohibit discrimination against gays and lesbians can be imposed on individuals who perform personal services, but who object to performing those services for same-sex weddings on religious grounds. Although that issue was raised in the Masterpiece Cakeshop case, the Court avoided deciding the issue by holding that Colorado was discriminating against religion. It will be interesting to see what happens in future cases which involve no discrimination against religion, and when the right of gays and lesbians to avoid discrimination is pitted directly against individual religious interests. In other words, will the baker who objects to same-sex 53 Ibid., at 879. 54 Ibid., at 883. 55 138 S.Ct. 1719 (2018). 56 Ibid., at 1729. 57 Ibid., at 1731. 58 Ibid.

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marriage on religious grounds be required to be personally involved in the creation of a special cake for a gay or lesbian wedding? One place where the Free Exercise Clause retains vitality is a prohibition against governmental meddling in church affairs. For example, in an early decision in Watson v. Jones,59 the Court was asked to resolve a dispute between anti-slavery and pro-slavery factions regarding control of the Walnut Street Presbyterian Church in Louisville, Kentucky. After the General Assembly of the Presbyterian Church recognized an antislavery faction, the Court refused to review that determination: ‘Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the ­highest of the church judicatories to which the matter has been carried, the legal ­tribunals must accept such decisions as final, and as binding on them.’60 ­Likewise, in Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America,61 after the Russian Orthodox churches in North America broke away from the Supreme Church Authority in Moscow, fearing that the Authority had become a tool of the Soviet Government, the North American churches claimed that the right to use the Russian Orthodox cathedral in New York City belonged to their archbishop. The Supreme Church Authority, disagreed, claiming that the right belonged instead to an archbishop appointed by the patriarch in Moscow. In that case, the Court struck down a New York law, requiring the courts to accept the determination of the American churches, on the basis that the law because it ‘directly prohibited the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy.’62 Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich,63 presented yet another dispute regarding control of church assets. In that case, the Court overruled a state court decision, which had inquired whether the Church had ­followed its own procedures, finding that the state court had ‘unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals.’64 In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission,65 the Court added an additional twist to the Free Exercise Clause by recognizing a ‘ministerial exception’ to neutral, 59 80 U.S. 679 (1871). 60 Ibid., at 727. 61 344 U.S. 94 (1952). 62 Ibid., at 119. 63 426 U.S. 696 (1976). 64 Ibid., at 720. 65 565 U.S. 171 (2012).

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generally applicable, laws. In that case, a church school that hired both ‘lay’ and (religiously) ‘called’ teachers, sought to terminate a ‘called’ teacher. The teacher sued, claiming that her termination violated federal and state laws that prohibited discrimination against individuals with disabilities. The Court held that the so-called ‘ministerial exception’ insulated the church against the law suit: ‘Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.’66 Hosanna-Tabor was followed and expanded in Our Lady of Guadalupe School v. Morrisey-Berru,67 a case in which the Court extended the ministerial exception to lay teachers who were entrusted with responsibility for instructing their students in the faith. Even though the teacher in question was a ‘lay’ teacher, and therefore could not be regarded as falling within the ministerial exception, the Court held that the religious school had discretion regarding which teachers to hire and fire: ‘Implicit in our decision in HosannaTabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.’68 As a result: ‘When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the schools independence in a way that the First Amendment does not allow.’69 3 Tension between the Establishment Clause and the Free Exercise Clause There has always been an underlying, and perhaps inevitable, tension between the Establishment Clause and the Free Exercise Clause. In a number of cases, the U.S. Supreme Court has been called on to decide whether a particular governmental action constitutes a prohibited establishment of religion, or whether it involves nothing more than a permissible accommodation of religious beliefs. In Everson v. Board of Education,70 the question was whether a school board 66 Ibid., at 188. 67 140 S.Ct. 2049 (2020). 68 Ibid., at 2064. 69 Ibid., at 2069. 70 330 U.S. 1 (1947).

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could reimburse parents for the cost of bus transportation for sending c­ hildren to school. Because the program included, not only public school children, but also children who attended private and religious schools, it was challenged as an establishment of religion. In deciding the case, the Court recognized the tension between the Establishment Clause and the Free Exercise Clause. On the one hand, as the Court recognized, ‘New Jersey cannot consistently with the ‘establishment of religion’ clause of the First Amendment contribute ­tax-raised funds to the support of an institution which teaches the tenets and faith of any church.’71 But, at the same time, the Court emphasized that it ‘must be careful that we do not prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief.’72 In Everson, the Court upheld the reimbursements, concluding that the state is required to be neutral towards religion,73 and finding that the r­ eimbursements did not transgress the metaphorical ‘wall between church and state.’74 The tension between the two clauses was also evident in Board of Education of Kiryas Joel Village School District v. Grumet.75 That case involved the Satmar Hasidic Jewish sect which created a small village occupied entirely by Satmars, a ‘vigorously religious people.’ The religion segregated the sexes outside the home, spoke Yiddish as its primary language, avoided television, radio, and the English language, and dressed in distinctive ways that included head ­coverings and special garments for boys and modest dresses for girls. Satmar children were educated in private religious schools. Because the religious schools did not offer special services to handicapped children, a local school district offered services for Satmar children at an annex. However, following the U.S. 71 Ibid., at 16. 72 Ibid. 73 Ibid., at 18: Of course, cutting off church schools from these services would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them. 74 Ibid: This Court has said that parents may send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. The State contributes no money to the schools. It does not support them. Its legislation does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. 75 512 U.S. 687 (1994).

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Supreme Court’s decision in Aguilar v. Felton and School Dist. of Grand Rapids v. Ball,76 Kiryas Joel children who needed special education (e.g., the deaf, the mentally retarded, and others suffering from a range of physical, mental, or emotional disorders) were forced to attend public schools outside the village. Because the Satmars were so different, those children encountered ‘panic, fear and trauma . . . in being with people whose ways were so different.’ By 1989, only one Kiryas Joel child was attending the Monroe-Woodbury’s public schools. The New York Legislature responded by enacting a statute which provided that the village of Kiryas Joel ‘is constituted a separate school district.’ Although the statute gave the school district plenary legal authority over the elementary and secondary education of all school-aged children in the village, the district ran only a special education program for handicapped children. The village’s other children attended parochial schools, and received only transportation, remedial education, and health and welfare services from the public school district. Had a non-handicapped student sought a public education, the district would have paid tuition to send the child to a nearby school district. In addition, several neighboring school districts sent their handicapped Hasidic children to the Kiryas Joel school. The Court ultimately invalidated the special school district, noting that the state of New York was required to ‘pursue a course of ‘neutrality’ toward religion,’77 and that the government had deviated from neutrality by delegating its ‘discretionary authority over public schools to a group defined by its character as a religious community, in a context that gives no assurance that governmental power has been or will be exercised neutrally.’78 The Court noted that religious officials could not, because of their political activities, be denied the right to hold public office. But the Court regarded the school district as unconstitutional: ‘The difference lies in the distinction between a government’s purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.’ Even though the state did not delegate power with express reference to the religious beliefs of the Satmars, the Court concluded that New York had effectively identified the recipient of governmental power ‘by reference to doctrinal adherence’ because the ‘boundary lines of the school district divide residents according to religious affiliation, under the terms of an unusual and special legislative Act.’79 The Court held that ‘the 76 473 U.S. 402 (1985). 77 512 U.S., at 696. 78 Ibid. 79 Ibid., at 699.

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legislature’s Act [was] substantially equivalent to defining a political subdivision and hence the qualification for its franchise by a religious test, resulting in a purposeful and forbidden ‘fusion of governmental and religious functions.’80 Despite the holding in the Kiryas Joel case, in a number of recent cases involving potential establishments of religion, the Court has favored religious interests. In Trinity Lutheran Church of Columbia, Inc. v. Director,81 a church applied for a government grant that would have allowed it to replace a gravel playground surface at its childcare center with a pour-in-place rubber ­surface (created with recycled tires) that was safer for children. The State of Missouri offered the grants to nonprofit organizations, and in general, the grants were awarded on a competitive basis looking at several criteria, including the poverty level in the area and the applicant’s plan to promote recycling. However, the Department had a strict policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. Although Trinity Lutheran’s childcare center ranked fifth among 44 applicants, and even though the program awarded 14 grants, the center was denied funding because of the state’s policy of denying grants to religiously affiliated applicants. The Court held that the state had violated the Free Exercise Clause. After noting that the Establishment Clause does not prevent Missouri from including Trinity Lutheran in its Program, the Court emphasized that the Free Exercise Clause ‘protects religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’82 The Court went on to note that ‘denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’83 Noting that the Department’s policy expressly ­discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character, ‘the State has punished the free exercise of religion…The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church— to compete with secular organizations for a grant.’84

80 Ibid., at 702. 81 137 S.Ct. 2017 (2017). 82 Ibid., at 2019. 83 Ibid. 84 Ibid., at 2015.

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4 Conclusion The religion clauses of the U.S. Constitution have a long and troubled ­history. The origins of those clauses are relatively clear: many of the earlier settlers to the Americas came seeking to escape religious persecution in Europe, and there were similar persecutions early on in the United States. This ­persecution led many to seek enshrinement of the concept of religious liberty in the U.S. Constitution, and ultimately the Bill of Rights imposed a prohibition against governmental establishment of religion as well as protections for the free exercise of religion. During the ensuing centuries, both of the religion clauses have been subject to much litigation. The Court has particularly struggled to give content to the prohibition against the establishment of religion. U.S. courts agree that neither the federal government nor the states may ‘establish” an ‘official religion,’ and may not require everyone to practice that religion.85 In addition, governments may not enact laws mandating church attendance or requiring individuals to profess a belief or disbelief in any particular religion.86 The difficulty is that neither the federal government, nor the state governments, have attempted to establish a religion in modern times, and neither has enacted laws mandating church attendance or requiring individual to profess a belief or disbelief in any particular religion. As a result, courts have usually been confronted by lesser governmental actions, and the courts have been forced to determine whether those lesser actions amount to an ‘establishment of religion.’ In resolving those questions, courts have been forced to resort to other principles in order to determine the meaning of the Establishment Clause. In recent decades, the Court has applied various tests to determine whether particular governmental conduct constitutes an ‘establishment.’ In addition to the Lemon test,87 the Court has applied the ‘neutrality’88 and ‘endorsement’ tests.89 None of these tests has produced entirely satisfactory results. Certain principles are clear. States may not post copies of the Ten Commandments in the public schools,90 may not require that Bible passages be read in schools,91 85

See Russell L. Weaver & Catherine Hancock, The First Amendment: Cases, Materials & Problems (Carolina: Carolina Academic Press, 6th ed., 2020): 817. 86 Ibid. 87 See Lemon v. Kurtzman, 403 U.S. 602 (1971). 88 See Everson v. Board of Education, 330 U.S. 1 (1947). 89 See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). 90 See Stone v. Graham, 449 U.S. 39 (1980). 91 See School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

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or that governmentally created prayers be created and mandated.92 However, there is considerable disagreement about whether, and to what extent, government can help finance religious education.93 The Court has also struggled to give content to the Free Exercise Clause. Although some early cases required governments to ease governmental burdens on religion,94 the Court’s decision in Unemployment Division v. Smith95 suggested that exceptions are not warranted for neutral, generally applicable, burdens on religion.96 As a result, most requested exemptions to governmental regulation are denied.97 However, the Court has provided greater protection to religious organizations through rules prohibiting government from discriminating against religion,98 as well as through the so-called ‘ministerial exception.’99 Perhaps the most interesting issues in this area arise regarding the ­tension between the religion clauses. In some instances, it is difficult to know whether a governmental action involves an establishment of religion or a permissible accommodation of religion under the free exercise clause. In some cases, the Court has concluded that governmental action involves a prohibited establishment.100 However, in recent years, the Court has tended to side with religious groups in resolving the tension between the two clauses.101 Acknowledgment Professor Weaver wishes to thank the University of Louisville’s Distinguished University Scholar program for its ongoing support of his scholarly efforts.

92 93

See Engel v. Vitale, 370 U.S. 421 (1962). Compare Agostini v. Felton, 521 U.S. 203 (1997), with Aguilar v. Felton and School Dist. of Grand Rapids v. Ball, 473 U.S. 402 (1985). 94 See Sherbert v. Verner, 374 U.S. 398 (1963). 95 494 U.S. 872 (1990). 96 Ibid., at 880–881. 97 See ibid. 98 See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). 99 See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). 100 See Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). 101 See Trinity Lutheran Church of Columbia, Inc. v. Director, 137 S.Ct. 2017 (2017).

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Bibliography Books Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, ­Massachusetts: Harvard University Press, 1967. Iredale, James. “Debates in the Convention of the Commonwealth of North Carolina on the Adoption of the Federal Constitution.” In The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. J. Elliot (2nd ed, 1866). Ketcham, Ralph. The Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes and Compromises That Birth to our Government (Signet, 1986). Madison, James; Alexander Hamilton, and John Jay. The Federalist Papers (The Classic Original Edition), (citing Federalist No. 47 (Jan. 30, 1788)). Montesquieu, Baron de. The Spirit of Laws. New York: Cosimo Edition 2011. Weaver, Russell L. and Catherine Hancock, The First Amendment: Cases, Materials & Problems. 6th ed. Carolina: Carolina Academic Press, 2020.

Cases Agostini v. Felton, 521 U.S. 203 (1997). Aguilar v. Felton and School Dist. of Grand Rapids v. Ball, 473 U.S. 402 (1985). Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 718–720 (1994). Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). Compare Agostini v. Felton, 521 U.S. 203 (1997). County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). Engel v. Vitale, 430 U.S. 421 (1962). Everson v. Board of Education, 330 U.S. 1 (1947). Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398–399 (1993). Lemon v. Kurtzman, 403 U.S. 602 (1971). Marsh v. Chambers, 463 U.S. 783, 816 (1983). Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018). McDonald v. City of Chicago, 561 U.S. 742, 769 (2010). Meek v. Pittenger, 421 U.S. 349 (1975). National Federation of Business v. Sebelius, 567 U.S. 519 (2012). Sherbert v. Verner, 374 U.S. 398 (1963). School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

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Stone v. Graham, 449 U.S. 39 (1980). Trinity Lutheran Church of Columbia, Inc. v. Director, 137 S.Ct. 2017 (2017). United States v. Morrison, 529 U.S. 598 (2000). United States v. Lopez, 514 U.S. 549, 566 (1995). Wallace v. Jaffree, 472 U.S. 78, 92–93 (1985). Wolman v. Walter, 433 U.S. 229 (1977).

Constitution The US Constitution

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CHAPTER 9

Constitutional Culture, Religion, and England-beyond Establishment Javier García Oliva 1 Introduction Whilst the phenomenon of Establishment in relation to England1 has been extensively discussed in academic literature, the wider juridical treatment of faith and belief has received less attention, at least at a systemic level. Specific questions, such as religious dress, or conscientious objection in the workplace, have been thoroughly examined by commentators, but there is a surprising dearth of material on the overarching themes that can be discerned from the disparate disputes. In other words, the current literature tends to be focused either at the Church/State level, or granular in nature, and although both of these approaches to study are highly valuable, they leave a gap in respect of the influence of Constitutional Culture on the wider framework as a whole. This chapter attempts to assist the project of bridging this chasm. It begins with an explanation of the concept of Constitutional Culture, and the intraand extra-legal norms governing our collective life. It then moves to explore how Constitutional Culture in England moulds civil and criminal provisions towards an enabling stance in respect of the practice of faith and the manifestation of ideological convictions, arguably even creating a common law right to freedom of conscience and belief, which runs in parallel to Article 9 of the ECHR. 2

Constitutional Culture

The phrase ‘Constitutional Culture’ has been used by a variety of commentators in Anglophone scholarship, each with a distinct purpose, or at least emphasis in mind. Unsurprisingly, the majority of writing has emanated from the United States, where awareness of the Constitution is high amongst the 1 This piece focuses, mainly, on the English model, although some references will be made to the whole of the United Kingdom throughout the chapter. © Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/9789004449961_010 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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general population.2 In this setting, authors like Mazzone have applied the phrase to signify a consensus that collective life and social discourse should be framed around the principles set out in a constitutional document. On this analysis, Constitutional Culture means the shared understanding of the ­Constitution as a common framework, value system and point of reference, which enables it to exercise a cohesive effect upon extremely disparate groups. Nevertheless, almost inevitably, there may be bitter struggles between various factions who consider that their understanding of constitutional principles is the optimal, or perhaps even exclusively correct interpretation.3 However, these battles are by their very nature internecine, given that the combatants are vying for control, or at least influence, within the same paradigm. It is no coincidence that during the political turbulence during the Trump presidency and its aftermath, both the left and right of the ideological spectrum have appealed to the Constitution, hailing it as a moral beacon and accusing their opponents of hijacking or subverting it.4 In any event, it is legitimate to ask whether this kind of phenomenon can occur in other contexts, which either lack a codified Constitution altogether, or possess one which fails to capture public interest or imagination. Weis, in fact, uses the term Constitutional Culture in asking whether it can be absent, when he interrogates whether the comparatively low profile of the Australian Constitution is problematic in social and political terms.5 Without a doubt, it is legitimate to inquire whether having sufficient societal ‘buy-in’ to a written instrument is necessary for it to function effectively, but whether a country has a highly regarded codified document is a separate question from the issue of whether it has a ‘Constitutional Culture.’ Rather than adopting the narrow understanding of Mazzone, and interpreting Constitutional Culture as a culture centred around affirmation of a particular text and its status, a much broader meaning will be proposed. Nonetheless, there is kinship between the narrower and wider notions. At their core, both concepts refer to a phenomenon which is unifying, and enables divergent

2 Jason Mazzone, “The Creation of a Constitutional Culture,” Tulsa Law Review, 40 no. 4 (2005): 671, 683. 3 Bradley Miller and Grant Huscroft, eds., The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge: Cambridge University Press, 2011). 4 Thom Hartmann, The Hidden History of the Supreme Court and the Betrayal of America (­Oakland: Berrett-Koehler, 2019), 133–155. 5 Lael Weis, “Does Australia Need A Popular Constitutional Culture?” in New Directions for Law in Australia: Essays in Contemporary Law Reform, ed. Ron Levy (Acton: Australian National University Press, 2017) 377–384, 382.

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social interests to act in concert in the affirmation and operation of decisionmaking and dispute resolution systems. Llewellyn argued, back in the first half of the twentieth century, that a Constitution is a ‘set of ways of living and doing,’6 and later jurists and political scientists adhered to the same analytical perspective, such as Frankenberg, for instance.7 It is a position supported by pragmatic, real world considerations, because a Constitution must be applied in a practical sense in order to be a genuine political settlement, as opposed to a thought experiment or theoretical statement of ideals. As Heller put it, in the final analysis, the meaning of the words on the constitutional page, and the day to day functioning of the machinery of State, are determined ‘not just by text, judges or legislatures, but by the citizens who are its addressees and observe its norms.’8 This shared agency in embodying and acting out the Constitution is the core idea within the notion of Constitutional Culture, as adopted for the purposes of this piece, and previously set out by García Oliva and Hall.9 Affirming Llewelyn’s understanding of a Constitution as a bundle of norms and expectations, Constitutional Culture here is concerned not simply with the juridical and political principles set out within a Constitution (whether or not this happens to be codified), but the way in which these are interpreted and understood in reality.10 Any form of society which has escaped the anarchy of a Hobbesian nightmare, will be governed by collective rules and expectations, and these make up their Constitutional Culture.11 In this instance, the term Constitution is widely, and of course, correctly, understood to signify the body of law which governs the collective life of the State, but the phrase Constitutional Culture encapsulates not only such laws, but also other norms which: 1) exercise powerful influence in their own right, in parallel to law, and; 2) mould the ways in which laws are interpreted and applied. Lawyers traditionally slice the bundle of rules and expectations into the tripartite division of hard law, soft law and conventions (which may be political 6 7 8 9 10 11

Karl Llewellyn, “The Constitution as an Institution,” Columbia Law Review, no. 34 (1934): 1, 33. Günter Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (­Cheltenham: Edward Elgar, 2018), 65. Hermann Heller, “The Nature and Structure of the State,” trans. David Dyzenhaus, C ­ ardoza Law Review, 18, no 3 (1996): 1139. Javier García Oliva and Helen Hall, “Peoples and Sovereignty: Constitutional Law Lessons from Greenland and Denmark,” Public Law, (2020): 331. David Feldman, “One, None or Several? Perspectives of the UK’s Constitution(s),” ­Cambridge Law Journal 64, no. 2 (2005): 329, 335. Thomas Hobbes, Leviathan (1651).

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or social in nature).12 Needless to say, there is considerable utility and validity in this approach, given that norms and expectations which have the status of law are subject to special criteria, and ordinarily backed by the legitimised use of coercive state power. In order to satisfy an objective understanding of the Rule of Law, legal principles must be sufficiently clear, discoverable and non-retroactive in effect,13 and there are also mechanisms to punish or restrain legal or natural persons who flout rules with the status of law. In contrast, expectations or norms not backed by legal force may be more vague and malleable in character. This is observable in the status of some conventions of the United Kingdom Constitution, for instance, there is a still room for debate as to whether or not a constitutional convention has solidified that the Prime Minister must sit in the House of Commons, rather than the House of Lords, or whether, at least for the duration of a short-term and acute crisis, a Prime Minister might still function from the House of Lords, as was historically routine.14 Furthermore, norms and expectations which do not have the status of ­constitutional conventions may be even harder to pin down. For example, there is a widely recognised expectation of ‘policing by consent,’ but the boundaries and implications of this may be more difficult to identify.15 During the Covid19 pandemic, influential voices such as Jonathan Sumption (former Supreme Court judge) argued that the tactics of some police forces to encourage compliance with both law and also government guidance violated this principle.16 At the same time, public reaction to the attempt by the Derbyshire police to shame via social media those responsible for parties during lockdown, was one of hilarity, rather than rage at an infringement of civil liberties.17 The following post on Twitter, ‘I’m more concerned by the fact that someone thinks a plate of oranges is acceptable buffet food!’ was not atypical.18

12

Anne van Aaken and ‎Iulia Motoc, The European Convention on Human Rights and General International Law (Oxford: Oxford University Press, 2018), 8. 13 Joesph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 2009), 3 – 27. 14 Meg Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford: Oxford University Press, 2013), 24 15 Alex Oaten and Chris Allen, “Coronavirus: extra police powers risk undermining public trust,” The Conversation, April 6, 2020 https://theconversation.com/coronavirus-extra-­ police-powers-risk-undermining-public-trust-135644. 16 Jonathan Sumption, Law in a Time of Crisis (London: Profile Books, 2021), Chapter 12. 17 “Coronavirus: Police in absolute shock over massive party,” BBC News, March 29, 2020, https://www.bbc.co.uk/news/uk-england-derbyshire-52084653. 18 Ibid.

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It is also interesting to observe that reaction to police using drone footage to capture images of cars visiting the Peak District, in contravention of the law then in force, was far more negative.19 It is fair to note that commentators like Hasan and Wolf argued that the actions of the police in posting images of a couple walking a dog, were at least potentially in breach of the law, as well as social convention, given the application of the Data Protection Act 2018, and the possibility of third parties identifying the hikers from their clothing and dog.20 Nonetheless, the arguable illegality of the approach was not a prominent feature of the media reporting, and the popular press was more concerned with the idea of police surveillance, with drones, in particular, being attacked, and evidently seen as something more intrusive than the routine use of CCTV in urban areas. The debate over the operational decisions of the Derbyshire police force during the pandemic, provides a helpful illustration of how non-legal elements of Constitutional Culture can exert a powerful influence on the way in which laws are interpreted and applied, and the manner in which state power can be successfully exercised with a critical mass of support, or at least acceptance from society as a whole. There are indeed significant features that exist beyond the remit of hard and soft law, and it is, therefore, useful to divide Constitutional Culture into intra and extra-legal components. It should be stressed, that as we have already noted, in many contexts the extra-legal components can operate as a strong, almost inexorable social tide, whilst dragging collective behaviours in a given direction. For instance, there is a well-established social expectation that if a political figure suddenly dies, suffers a bereavement or serious personal crisis, there will be a temporary c­ essation of debate and criticism. A recent and an extremely tragic instance of this can be observed in the halting of campaigning by both sides in the run up to the Brexit referendum, following the murder of MP Jo Cox.21 The importance of the operation of elements of Constitutional Culture within the extra-legal sphere should not be underestimated, and the political ceasefire, which was respected by all parties represented in Parliament and mainstream media channels, was a highly significant development during one

19

Coronavirus: Peak District Drone Police Criticised for ‘Lockdown shaming,’” BBC News, March 27, 2020 https://www.bbc.co.uk/news/uk-england-derbyshire-52055201. 20 Ibrahim Hasan and Susan Wolf, “Coronavirus and Police Drone Use,” Law Society Gazette, June 15, 2020 https://www.lawgazette.co.uk/legal-updates/coronavirus-and-­police-droneuse/5104590.article. 21 “EU referendum campaigns suspended until Sunday after Jo Cox attack,” BBC News, June 17, 2016.

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of the most dramatic struggles in British constitutional history. Nevertheless, it did not directly concern or influence the operation of the legal framework. In contrast, as we saw with the controversy surrounding the Derbyshire police force and Covid-19, there are instances where extra-legal elements of Constitutional Culture directly shape the way in which law is applied, interpreted and enforced. Judges and lawyers are not the only, and for some many purposes, not even the primary interpreters of the law, because on a day-to-day basis, police forces, local authorities, NHS staff and many other agents of the State discern what their legal duties require them to do in a particular situation. Of course, it is important to stress that such actors carry out this interpretative function with the shadow of judicial review, civil litigation or even criminal prosecution over their shoulder,22 but these decision-makers are often well aware of this reality, and operate with the explicit guidance of judges in mind. For instance, the seminal Gillick case,23 setting out parameters for the ­independent decision-making of minors, is familiar to medical and nursing students as well as lawyers.24 In other words, whilst the role of the judiciary in setting and maintaining parameters should not be downplayed, it remains the case that countless assessments of the law are made everyday by non-lawyers acting on behalf of public bodies, and these specific instances are never individually examined in a courtroom. Society would creak to a painful halt if every single search carried out by a police officer, assessment of capacity to consent to treatment by a doctor, or ruling by a local authority on whether to permit a given child entry to a preferred school was re-examined by a court. In practical terms, many nonlegally qualified decision-makers necessarily operate the legal machinery of the State every day. Unquestionably, in effectively taking part in the legal framework, it might plausibly be contended that they are participating in intra-legal elements of the Constitutional Culture, because in so far as the rules that they are applying are subject to challenge and judicial enforcement, this is accurate. However, they do so informed not only by legal norms precepts, but also by social expectations. For instance, in deciding whether it is appropriate to intervene in a situation where a group of people are shouting and swearing in a town square, but not showing any signs of conflict or violence, a police officer might partially base 22 23 24

Keith Syrett, “Impotence or Importance? Judicial Review in an Era of Explicit NHS rationing,” Modern Law Review 67, no. 2 (2004): 289. Gillick v West Norfolk and Wisbeach AHA [1985] UKHL 7. Rachael Thomas, Medical School at a Glance (Chichester: Wiley, 2017), 91.

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his or her decision in whether it was early enough in the evening for children to be around. Clearly, the identification of some words as profane or taboo, and the consequences of their use in certain contexts is dependent upon widely understood social norms.25 Obviously, if the police officer deemed that action was proportionate, he or she would then need to assess the range of appropriate statutory and Common Law powers and duties at play,26 but an influential element of the initial first assessment of the situation would be the widespread social expectation that adults adjust their vocabulary in presence of younger people. Therefore, at a very practical, grass-roots level, social expectations determine the way in which laws are understood and enforced. Of course, there are many circumstances in which the same considerations apply to judicial decision-makers, sometimes explicitly. For instance, when assessing the sort of touching which may or may not give rise to an action in trespass, judges explicitly sought to set the standard for tortious liability at a point which would not catch routine human interaction.27 Equally, in relation to negligence, courts will frequently be assessing what was reasonable in terms of risk and anticipated behaviours, such as a deciding whether an employer should be responsible for injuries caused to one employee at a Christmas party by the drunken dance-moves of another,28 or assessing whether a child claimant should have been better supervised, or more independently vigilant in crossing a road.29 To some observers, these questions may not at first appear to be ­constitutional in nature, as they do not have an obvious or strong connection with the ambit of Public Law as conventionally defined. Nevertheless, the issue of ­Constitutional Culture is a critical factor in determining their outcome, and both its extra and intra-legal elements are relevant, because as we have outlined, it is a reality which encompasses the norms and expectations governing collective life, or in other words, what citizens may expect from the State. Clearly, this must include what private parties can attain with regard to legal claims against other non-state actors. It is now uncontroversial that the State has a duty, pursuant to the European Convention on Human Rights, to protect individuals from having their rights infringed by third parties,30 and 25 26 27 28 29 30

Tony McEnery, Swearing and Power: Bad Language, purity and power from 1586 to the ­present (Abingdon, Routledge, 2004). Police and Criminal Evidence Act 1984. Collins v Wilcock [1984] 1 WLR 1172. Shelbourne v Cancer Research UK [2019] EWHC 842. Alabady v Akram [2021] EWHC 2467. Eweida v United Kingdom [2013] ECHR 37.

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for example, if a private company imposes regulations or disciplinary sanctions on employees in ways that infringe their Article 9 right to religious and ­ideological freedom, the State will be in breach of its obligations if it does not provide adequate redress in the form of a civil claim. The same logic applies a fortiori to the protection of health, life and physical integrity. The State has a constitutional obligation to provide a private law framework fit for purpose to safeguard the rights of persons within its jurisdictional realm. Aspects of the legal framework which are not designated ‘public’ nevertheless belong to the Constitutional Culture, because they are an integral and non-negotiable part of the norms and expectations which govern collective life. In fact, even early proponents of social contract theory like Hobbes and Locke regarded protection of persons and property as fundamental reasons to submit to some form of sovereign authority. Nonetheless, as we have also discussed at length, there are also norms and expectations which govern collective life existing outside of the legal realm, but still informing the way in which law is interpreted and applied, by lawyers and other agents of the State. These extra-legal elements of Constitutional Culture are different in nature and operation from the intra-legal dimension, in that they are not backed by coercive force, they do not necessarily meet the requirements of certainty and clarity demanded of legal provisions, and they are extremely malleable and subject to change. At the same time, however, there is a constant mutual dialogue between the intra- and extra-elements of Constitutional Culture. It cannot be over-emphasised that although they are separate and distinct, the intra- and extra-legal elements of Constitutional Culture are part of the same, integrated whole. The two worlds inform and shape one another, and for instance, the pace of shifting social attitudes can be accelerated if a form of controversial conduct is formally proscribed, as illustrated by the impact of anti-racial discrimination legislation31 in the second half of the twentieth century.32 Equally, as we have seen, the ways in which laws are understood, interpreted and enforced are dependent upon the extra-legal norms and expectations which permeate society. It is with this in mind that we are now going to turn to the phenomenon of Establishment.

31 32

Race Relations Act 1976. Muhammad Anwar, “The Impact of Legislation on British Race Relations” in From ­Legislation to Integration: Race Relations in Britain eds. Muhammad Anwar, Patrick Roach and Ranjit Sondhi (London: Palgrave, 1999), 58–71.

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Establishment and Constitutional Culture

The contemporary Constitutional Culture in respect of Establishment can only really be understood by taking a step back into the Early Modern era. Whilst this might appear a long lead in time, many of the norms and expectations present within the twenty-first century can only be adequately appreciated in light of their evolution and incremental development. Furthermore, current constitutional norms relate closely to constitutional myths, many of which arise out of adopted narratives in relation to historical events. It is, therefore, necessary to discuss the developments of the past not simply in order to provide context, but also to enable us to engage with the stories that society in England tell about its ethos and identity in the XXI century. The tale of Henry VIII and his six wives is frequently repeated in popular culture, the idea of an almost accidental stumbling into religious reform is preferred over the more complex, and nuanced reality.33 This slant on events is not entirely surprising, if it is remembered that from the Enlightenment era until the twentieth century, England developed a self-understanding as a society which prized moderation and rationality, and considered excessive ‘enthusiasm’ a negative trait in religion or politics.34 The extent to which this self-understanding was based upon demonstrable historical or anthropological evidence is, undoubtedly, an entirely distinct question. England (and by dint of the Crown’s power over the Principality, Wales) experienced an idiosyncratic reformation in an era of European religious turmoil, and the groundswell for change was not generated by the agitation of educated elites, enthralled by the new, radical doctrine from the continent.35 Instead, it came about through the egotistical machinations of a monarch desperate to secure a male heir. Unquestionably, there were factions within the Henrician court in favour of the new religion, but there is little evidence that they would have otherwise prevailed. Indeed, had one of the male children of Henry and Catherine survived, it is hard to imagine such a cause finding much favour in the Royal Court from anyone who knew which side their bread was buttered. Given Henry’s decidedly Catholic inclinations and the advantages of an alliance with the superpower Spain, a break with Rome would have made no sense in such circumstances.

33 34 35

Jonas Takos, Henry VIII in Twenty-First Century Popular Culture (Maryland: Lexington Books), 193–204. Henry Rack, A Reasonable Enthusiast (London: Epworth Press, 2002). Peter Marshall, Religious Identities in Henry VIII’s England (Abingdon: Routledge, 2016).

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Counterfactual speculation aside, however, it is striking that Henry’s d­ ynastic concerns are treated as the genesis of the Church of England. In the popular accounts, when the ensuing years of strife under his children’s successive reigns are remembered at all, Catholic Mary is painted as the villainous source of the oppression and discord, and ‘Good Queen Bess’ is hailed as the source of an honourable compromise between Roman Catholic and radical Protestantism.36 This fits with the narrative which in later centuries England would present of national reason and moderation, but does not sit entirely easily with the complicated reality. The conflict of the XVII century, to which we shall shortly turn, is still frequently airbrushed out of the picture. Nevertheless, before addressing the struggles of the Civil War era, it is crucial to consider Scotland’s experience of Reformation, because in sharp contrast with the personal ambition of Henry, north of the Tweed, monied intelligentsia had forced through a Protestant Reformation in the teeth of opposition from Catholic monarchs.37 This contrasting experience was destined to have repercussions for centuries which followed, and has had ongoing implications for the contemporary scene. Constitutional Culture in respect of religion remains distinct in Scotland, and many of the manifestations of Establishment at state level are explicitly Anglo-Centric in character, e.g. it is the Archbishop of Canterbury who presides at coronations. Whilst Scotland has a National Church, the Presbyterian Church of Scotland has a radically different approach to involvement in public life, and the stark separation between temporal and spiritual authority is a key feature of its doctrine.38 For instance, the possibility of sending ordained representatives to sit the Upper Chamber of the temporal Parliament, in a role akin to the Lords Spiritual, was never seriously proposed, and would not have been welcomed. The theological stance of the Church of Scotland is certainly one reason for the Church of England to have taken centre stage in the United Kingdom, after the Union of the Crowns, yet it would be disingenuous to assert that it is the dominant cause. In reality, from the accession of James VI and I onwards, Scotland was treated as the poor relative in many respects, rarely being accorded equal status and consideration by those exercising power from London.39 With two 36 37 38 39

Susan Doran and Thomas Freeman, Mary Tudor: New and Old Perspectives (London: ­Palgrave, 2011). Alasdair Raffe, The Culture of Controversy: Religious Arguments in Scotland 1660–1714 (Woodbridge: The Boydell Press, 2002), 126. Church of Scotland Act 1921, Schedule. Callum Brown, The Social History of Scotland Since 1730 (London: Methuen, 1987).

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established Churches operating in tandem within the neighbouring nations, for much of history, it was inevitable that the faith belonging to England would dominate. Other factors of enduring importance to the contemporary context, were the disastrous efforts of Charles I to bring Scotland religiously into line with the southern kingdom. Miscalculating the degree of dismay and hostility his reforms would prove to be one of the most fateful steps in a journey which led Charles into a series of disastrous civil wars and ultimately the scaffold.40 The fact that he had also alienated many of his English subjects was critical to his downfall. Charles resolutely clung to an interpretation of the Divine Right of Kings which championed his personal authority, and legitimised his decision to dismiss Parliament and impose a lengthy period of autocratic rule. In the XVII century, religion and politics were not separate spheres of influence, and grievances over autocracy cannot be easily teased away from spiritual protests. Alongside resentment over the king’s insistence on personal rule, radical Protestants in England wanted to see the Reformation completed, and casting anxious eyes towards Charles’ preference for elaborate liturgy and vestments, feared that the nation was travelling a in the opposite direction, a perception in no way dispelled by his harmonious marriage to a Catholic wife. The ­influence of a consort of this denomination was seen as undesirable in the immediate term, and the implications of a Catholic mother rearing the heir to the throne was alarming to many. Roman Catholicism was associated with both sedition and the Anti-Christ, and yet was now to be found at the heart of royal power. The details of the armed conflict which ensued as a result of Charles’ ­alienation of parliamentarians, the Scottish and other radical Protestants, is beyond the scope of this chapter. For present purposes, the salient points are that Charles suffered repeated military defeats, broke undertakings to accept the peace terms offered and was ultimately tried and executed for high treason against the realm of England.41 Out of this chaos, Oliver Cromwell emerged as the figure able to command support of the New Model Army raised by ­Parliament, and ruled for the Commonwealth of England for ten years as Lord Protector.

40 41

Leonie James, The Great Firebrand: William Laud and Scotland 1617–1645 (Woodbridge: The Boydell Press, 2017), 112–145. Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold (London: Vintage, 2005), 2–5.

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In terms of narrative and constitutional myth-making and affirming, it is telling that these events are not always, or even frequently, referred to as the ‘English Revolution,’42 as doing so would go against the trope that Britain, and England in particular, did not erupt into violent revolution. After the sudden death of Cromwell from natural causes, his son Richard was unable to retain power and the monarchy was restored.43 Strikingly, in the English popular imagination, Charles I is dubbed ‘The Merry Monarch’ and is remembered for ushering in an era of theatre, sport and excess, lapped up by a society emerged from a period of Puritanical repression. This version of events is problematic and unduly simplistic even from an exclusively English perspective, but it totally omits the experience of violent religious oppression experienced by the Scottish Covenanters.44 The truth is that the Restoration was not a period of religious freedom, or even toleration. Charles had a number of children with his mistresses, but no legitimate heir, leaving the throne to pass to his younger brother, the openly Catholic James II. By this stage, Roman Catholicism was powerfully linked with autocratic government in the minds of at least large swathes of the social elite, and when James’ queen produced a male heir, the situation became untenable in the eyes of a number of influential aristocratic and monied figures. A coup d’état was arranged, when James’ son-in-law William of Orange was invited to invade the country, and rule jointly with his wife Mary.45 From the perspective of constitutional self-understanding, this event is accorded revolutionary status, but it is labelled the ‘Glorious Revolution’ and effectively put forward as the exception which proved the rule. In later centuries it came to be contrasted favourably with the bloody scenes of the French and American Revolutions. Whig historians painted this as a triumph for reason, toleration and moderation, and a conscious turning away from fanaticism, persecution and oppression. The supposedly non-violent character of the dynastic transition was lauded by Victorians like Macaulay, who conveniently airbrushed out events in Ireland and later Scottish Jacobitism.46 The constitutional settlement of 1688 gained an enduring place in national myth-making, and it is no coincidence that former Prime Minister David Cameron proposed

42 43 44 45 46

Keith Lindley, The Civil War and Revolution (London: Routledge, 1998), 167–176. Jane Hammer, The Protector: The Life and Times of Richard Cromwell (Erith: Vantage Press, 1997). Clare Jackson, Restoration Scotland 1660–1690: Royalist Politics, Religion and Ideas (­Woodbridge: Boydell Press, 2003), 2. John Miller, The Glorious Revolution (London: Routledge, 1997). Thomas Macaulay, The History of England (1848).

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replacing the Human Rights Act 1998 with a ‘British Bill of Rights,’ harking back to the terminology for the Glorious Revolution. In the era of William and Mary, nevertheless, and for generations that followed, religious toleration was in limited supply, and religious equality was not even in a smudge on the collective horizon. The legal architecture of the late XVII century settlement was to bolster the interest of the English elite, and Church of England privilege was deemed a natural and necessary part of this structure. Religious tests kept Parliament, the judiciary, Cambridge and Oxford, as well as the gentlemanly ranks of the Army and Navy, the exclusive preserve of Anglicans (although the law did graciously permit, and in fact sometimes compelled, non-Anglicans to serve, suffer and die as ordinary soldiers and sailors). Furthermore, the significance of Church appointments themselves should not be overlooked, given that these were a convenient way of providing younger sons of the gentry with a comfortable living, and a potential avenue for social mobility for able men of less affluent backgrounds, especially if they could find a sympathetic patron. Membership of the Church of England could be a gateway to influential networks, and by the same token, a barrier to those on the outside. In short, the settlement of 1688 served to maintain social, political and ­economic privilege within Church of England circles. Loyalty to the established Church and loyalty to the Crown were regarded as, if not completely coterminous, at least intimately intertwined concepts, and it was accepted as axiomatic that the function of the legal system was to uphold Christian moral values, as articulated by the Church of England. This did not mean that all behaviours condemned by the Church attracted criminal penalties, and adultery, for instance, was not an offence for which people could be prosecuted. Nonetheless, jurists like Blackstone explicitly saw the law as having a Christian character, as expressed by the teaching of the Church of England.47 Moreover, ecclesiastical courts had jurisdiction to rule on most matters, which would now broadly come within the parameters of ‘Family Law,’ until 1857. For instance, the validity of marriage, questions of legitimacy (and therefore capacity to inherit), as well as succession to personal property all came within their purview.48 Regarded holistically, up until 1800, Constitutional Culture was robustly Anglican in character, in relation to both intra- and extra-legal elements,49 but 47 48 49

William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), Chapter 1. John Baker, An Introduction to English Legal History (London: Butterworths, 1990), 435–436. Javier García Oliva and Helen Hall, Religion, Law and the Constitution: Balancing Beliefs in Britain (Abingdon: Routledge, 2018), 11–49. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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a societal shift was gathering momentum. The influence of the Enlightenment, combined with new political and philosophical theories about personal liberty, citizens and the State, led to an increasing debate over the appropriateness of excluding all non-Anglicans from public life, and the case for greater toleration, at the very least for Protestant Christians, gradually became powerful. The events usually described in Britain as ‘The American War of Independence,’ but often characterised in the United States as ‘The American Revolution,’ were essentially a civil war, albeit one fought overseas. Many educated people in England had sympathy for the demands of the colonists for both representation and their wider thinking, including on separation of Church and State.50 It is also the case that many voices still considered that maintaining the Church of England was necessary for both national security and preserving the spiritual welfare of the realm. However, as the nineteenth century progressed, the notion of subjecting some citizens to civil disadvantage on the basis of their religious convictions became increasingly problematic politically and philosophically, and questions of faith gradually came to be pushed more and more into the private sphere. Consequently, the legal framework gradually came to close the gap between Anglicans and other groups.51 In order to understand contemporary Constitutional Culture, nevertheless, it is vital to appreciate that, generally speaking, this was not achieved by dismantling Anglican privilege. Rather than stripping members of the Church of England of the benefits that they enjoyed, legal reforms opened out these advantages to other groups. There are two important considerations to remember in respect of this process: 1) it was piecemeal and responsive to specific campaigns or social issues, and there was no grand, overarching plan, and; 2) it moved at an unequal pace due to conscious prejudice. Perhaps the best illustration of the haphazard nature of reform is provided by Marriage Law. At the time of writing in 2021, the Law Commission is currently investigating ways to disentangle the tortuous and twisted threads of the existing framework, or perhaps more accurately, frameworks in force within England and Wales.52 There are at present four different tracks to a legally binding marriage: (1) Marriage according to Anglican rites (despite having been theoretically disestablished in the early twentieth century, the Church in Wales remains established for a number of purposes, and these include most of the legislative arrangements around weddings); (2) Marriage according to 50 51 52

Sheldon Cohen, British Supporters of the American Revolution 1775–1783, (Woodbridge: Boydell, 2004), 16. Javier García Oliva and Helen Hall, Religion, Law and the Constitution: Balancing Beliefs in Britain (Abingdon: Routledge, 2018), 11–49. Weddings, Law Commission-Current Project Status www.lawcom.gov.uk/project/weddings Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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the rites of the Jews and the Quakers; (3) Civil marriage conducted by a registrar; and (4) Religious marriages performed by other religious groups if they have opted-in to the necessary administrative arrangements, which require them to have sufficient resources to have a building registered for worship and individuals certified to carry out the ceremonies.53 As the summary above itself demonstrates, the arrangements are complicated and confusing. There is in particular scope for misunderstanding over whether or not a particular religious organisation comes within the fourth category, as some faith groups are organised at a national or international level, and make arrangements accordingly (e.g., the Methodist Church), whereas others have local, autonomous groups and make their own decisions. Therefore, knowing that a wedding took place in a mosque does not provide sufficient information to tell whether or not the ceremony created a marriage recognised by civil law, as it is necessary to know whether or not the mosque in question has chosen to ‘opt-in.’ Equally, some of the rules are inconsistent and arcane, for instance, marriage according to the rites of the Jews and the Quakers is the only pathway which does not (subject to certain exceptions) require the ceremony to take place indoors. Consequently, a Jewish wedding may be held in a garden if the couple and the officiating rabbi so choose, but a Pagan wedding could not happen in woodland, and a civil ceremony could not be carried out on a beach. (This legal anomaly may have endured so long by virtue of the British climate, and the significant risk of cold and soaking rain at any time of the year). Marriage Law also provides an example of the fact that inequalities were not always simply a result of the haphazard nature of legislative intervention, as sometimes prejudice and persecution also featured as a driver. Despite being a prominent religious minority group, even in the XVIII century, Roman Catholics were not accorded any special legal treatment. This is in keeping with a general tendency to treat their faith as especially dangerous, and a reluctance to facilitate its practice. It is noteworthy that the anti-Catholic vestiges preventing the heir to the throne from marrying a Roman Catholic were not removed until the twentyfirst century.54 Furthermore, a former Archbishop of Canterbury raised doubts on the desirability of reform to end this residual discrimination, although it should be noted that his opinions carried no status as a formal position of the

53 54

Places of Worship Registration Act 1855; Marriage Act 1949 (as amended) ss 26, 41, 42, 44; Marriage Registration of Buildings Act 1990. Succession to the Crown Act s2.

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Church of England, and there is no evidence that they, in any sense, reflected mainstream Anglican opinion.55 It is equally striking that despite being married to a Catholic wife, and speculations about his Catholic preferences being aired in the press during his premiership, Tony Blair did not formally convert into this denomination until after he had ceased to be Prime Minister.56 Of course, many people do change their religious perspectives over the course of their lifetime and the timing of the transition could have been the result of personal emotional, spiritual and intellectual considerations unrelated to politics. Nevertheless, in light of the emphasis which the Blair and his advisors placed upon public image and remaining ‘on message,’ it must be questioned whether there was concern about the reception of an openly Catholic Prime Minister even in relatively recent times. It is important to stress both the chaotic nature of the reforms, and the ­elements of overt and wilful discrimination which persisted within the ­juridical system, because maintaining that the legacy of oppressive religious Establishment has not left behind some problematic features which are in need to attention would be completely inaccurate. However, without in any sense minimising this reality, it remains the case that, on the whole, a clear trajectory towards increasing inclusion can be traced. Furthermore, it is highly significant that the place of the Church of E ­ ngland within English national life was never toppled or rejected. Since the Reformation, the legal framework had treated support for the state religion as ­axiomatic, and this was kept. Nonetheless, in the course of the XIX century the perception that differential treatment between citizens was unacceptable, unless there was some objective reason for the disparity, gained momentum. As a result, since it was accepted that the law should support and facilitate Anglican practice, justice demanded that other religious practice should enjoy similar benefits. Thus, incrementally, the legal framework transitioned from being supportive of the established religion, to being supportive of all religion. This movement has reflected in both intra- and extra-legal elements of the English Constitutional Culture. For instance, Charity Law came to recognise trusts in support of religious purposes,57 Criminal Law provides exceptional 55 56 57

Gaby Hinsliffe, “Carey queries future of State Church,” The Guardian, December 24, 2002 https://www.theguardian.com/uk/2000/dec/24/religion.world. Stephen Bates, “After 30 years as a closet Catholic, Tony Blair finally puts faith before politics” The Guardian, June 22, 2007 https://www.theguardian.com/politics/2007/jun/22 /uk.religion1. The Charity Commission, “The Advancement of Religion and Public Benefit,” a­ dvancementof-religion-for-the-public-benefit.pdf (publishing.service.gov.uk).

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treatment to otherwise unlawful assaults (in the ambit of ritual male circumcision or religious mortification),58 and faith groups are allowed much greater latitude to opt out of civil Employment Law than is ordinarily the case (in general terms, a de facto employment relationship will be treated as employment, regardless of how it is described by the parties. Nevertheless, where religious ministers are concerned, the courts have demonstrated consistent willingness to find a genuine lack of intention to create legal relations).59 In relation to extra-legal factors, there is a general acceptance that religion is a sphere of human activity which should be treated as distinct and accorded special respect. For instance, prior to the pandemic if a person refused to shake hands with colleagues or clients in a professional setting, this would ordinarily have been seen as extremely rude and inappropriate behaviour, but if the refusal was rooted in religious reasons, this was generally considered acceptable (although a common expectation was that the refusal needed to be universal in a secular workplace, even if the doctrinal objection related to physical contact with members of the opposite sex, and as a result, declining to shake hands with only men or only women was considered problematic).60 Whilst social conventions about polite greetings are extra-legal, the parameters of acceptable conduct have potentially serious implications in the legal forum of a court or employment tribunal, and in discerning whether a particular behaviour amounted to discrimination, bullying or harassment, societal standards and expectations are key. The notion that religion is a serious matter and demands special treatment and respect is, therefore, part of the norms and expectations governing collective life in XXI century Britain, and operates across legal and social spheres. The reality that positive support for established religion was always a feature, and recognition that parity of treatment demanded a similarly sympathetic stance towards other faiths has been a powerful factor in building up this facet of the English Constitutional Culture. Nonetheless, it should be recognised that this demand for equal treatment within the legal system does not end with expressions of religion, and the need for parity of approach had expanded to include recognition of other manifestations of ideological perspectives by the early twentieth century. For instance, it has long been established that deeply and genuinely held religious

58 59 60

R v Brown 1993 UKHC 19. Sharpe v The Bishop of Worcester [2015] EWCA Civ 399. Jack Abramowitz, “Why don’t Orthodox Jews shake hands,” Jew in the City, June 25, 2018 https://jewinthecity.com/2018/06/why-dont-orthodox-jews-shake-hands/.

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pacificism needed to be accommodated, and Quakers were exempt from being press-ganged into the navy or compelled to serve in the militia.61 Yet by the time of the First World War, faith was not the only source of conscientious objection, for example there were Marxists who did not wish to participate in a capitalist conflict and kill other workers, and had there not been a long tradition of religious accommodation, it is likely that this socially marginalised perspective would have attracted little sympathy from the legislature. The reality was though that religious conscientious objection was a recognised phenomenon that needed suitable provision, and this being the case, it was not possible to justify excluding Marxist pacifists. Consequently, conscientious objection did not need to be on religious grounds,62 or to put simply, one person’s conscience had to be given the same weight as another person’s conscience. Thus, in summary, the way in which both law and society moved forward from the oppressive Establishment of the Glorious Revolution, generated an expectation that religion and conscience more widely would be protected, and it is to this consideration that we now turn. 4

Beyond Establishment: A Common Law Right to Religious Freedom

As we have seen, in most instances, the legal framework did not seek to ­dismantle the edifice of Anglican privilege, but to expand the structure to allow citizens to climb up. This generated an expectation across the wider English Constitutional Culture that both freedom of religion and freedom of conscience would be upheld. Judges treated the principle that all religious convictions should be accorded equal respect as axiomatic, and this stance can be found within dicta from long before the modern era of human rights legislation.63 However, it might be questioned whether this reality maintains its former significance in light of the passage of the Human Rights Act 1998, and the 61 62 63

Daniel Ennis, Enter the Press-gang: Naval Impressment in Eighteenth Century British ­Literature (London: Associated University Press, 2002), 19. Military Service Act 1916. J M Carroll [An Infant] [1931] 1 KB 1937, per Lord Hewart CJ, 323 “at a comparatively late stage it appears to have occurred, or to have been suggested to her, that, as a Roman Catholic herself she had an interest in having her infant daughter brought up in the Roman Catholic faith. I need hardly say, as has been said before in cases of this kind, that this Court has no concern with any question, if question there be, of the competing merits of different religious faiths. The Court addresses its mind to no such problem as that.”

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incorporation of the European Convention on Human Rights into the domestic legal order. The answer is that this aspect of the English Constitutional Culture is of profound significance for two reasons: 1) its influence on understanding and interpretation, and; 2) its capacity to survive any repeal or restructuring of human rights protection in the United Kingdom. Firstly, as we have observed, norms which inhabit both intra- and extra-legal elements of Constitutional Culture have a particular power in shaping the way in which the law is understood and applied. This consideration applies equal whether the interpretative task is being carried out by a judge, another state representative or even a citizen. Just as the narrower concept of Constitutional Culture is concerned with ‘buy-in’ to a mode of collective life gathered around an iconic text, so our broader notion of Constitutional Culture focuses on collective life gathered around certain identifiable meta-values. There is indeed a widespread acceptance within contemporary England and the rest of the United Kingdom that freedom of religion and conscience should be given due respect. This overarching expectation shapes decision-making and provides a benchmark for what citizens might consider reasonable, or alternatively, oppressive. Its more intangible nature, compared to a principle of hard law, means that it is more difficult to erase, as it is difficult to disapply a mode of thinking or accepted norm by legislative intervention. Secondly, at a time when the operation of the Human Rights Act remains under review, it offers a degree of security not dependent upon its continuation. The Supreme Court has recently chosen to highlight the importance of rights existing at common law, as a part of the very fabric of the legal and constitutional system.64 In Unison, the most senior appellate court chose to decide the case on the right at common law to a fair trial, and explicitly noted that this existed alongside the Article 6 guarantee, which could equally have been used. At one level, this is not such a revolutionary judgment, because the existence of rights subsisting at common law and developing alongside jurisprudence on the ECHR is well established (consider, for example, the judicial consideration of protection of a right to privacy via Tort and civil law more generally).65 Given that human rights claims cannot be made horizontally, as noted above, States are required to provide mechanisms within Private Law to vindicate freedoms such as the right to private life.66 Naturally, these will be 64 65 66

R (Unison) v Lord Chancellor UKSC 51. Campbell v MGN Ltd [2004] 2 WLR 1232. Racing Partnership Ltd and others v Done Bros (Cash Betting) Ltd and others; Racing ­Partnership Ltd and others v Ladbrokes Betting & Gaming Ltd and others [2021] 2 WLR 469,

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moulded by the Convention based rights running alongside them, but they are not themselves creatures of this European international document. However, drawing out a specific common law right to a fair trial and using it as the basis of an entire judgment, as the Supreme Court chose to do in Unison, is striking and manifestly deliberate. As the court explicitly acknowledged, this was not necessary, because the case could equally well have been resolved by a comparatively straightforward application of Article 6, but it was a conscious choice to travel by the scenic common law route. As Bogg argued, the Unison decision is a potential step-change, and coming of age of common law rights.67 Lifting up a right from the common law tapestry is something distinct from allowing rights to be expressed through private law actions. It is important to be cautious in how far the hypothesis is pushed. As Elliott noted in 2017, it remains to be seen in what circumstances, if any, a court would be prepared to ‘push the nuclear button’ and challenge Parliament directly, asserting that it has exceeded the bounds of its constitutional authority, by transgressing rights and principles woven into the fabric of the legal framework itself.68 Elliott is certainly correct in his contention that the British paradigm tends to be one of caution, and the prospect of a court getting into such a stand-off with the legislature is probably remote. The recent deferential tone which the Supreme Court has adopted in stressing its care not to overstep its constitutional remit only strengthens Elliott’s analysis.69 Furthermore, whilst there is scope for debate as to how far senior judges might push the common law right to a fair trial, this principle has at least been recently articulated. It must be acknowledged that no case in which a common law right to religious and conscientious freedom could be plausibly tested has yet arisen. Whilst the Human Rights Act remains on the statute book, it is not a pressing consideration, and the current tactic of the Supreme Court appears to be one of avoiding undue antagonism towards the legislature. Nevertheless, given the central place of religion in the political struggles in which the British Constitution was forged, and the importance of ideological freedom in the contemporary world, it would certainly be possible to imagine a court assessing its existence in appropriate circumstances, especially if, as in Unison, this did not involve a broadside attack on Parliament or primary legislation. 67 68 69

Alan Bogg “The Common Law Constitution at Work: R (On the application of Unison) v The Lord Chancellor,” Modern Law Review 81, no. 3 (2018). Mark Elliott, “Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law,” Public Law for Everyone, (2017), Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law – Public Law for Everyone. Begum v Home Secretary [2021] UKSC 7.

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5 Conclusion The road towards modern Establishment in England has been a rocky one. This article has been careful to avoid eliding over the injustices of history, such as the unequal treatment of Scotland in the wider United Kingdom, and the long reach of anti-Catholic vestiges. Yet despite this, the religious Constitution of the State has evolved a Constitutional Culture in which respect of faith and ideological liberties are fundamental norms, and these suffuse both intra- and extra-legal elements of the system. This is a legacy of a move towards greater inclusion based upon reactive and incremental reforms, rather than a root and branch project to create a new world order. The general policy has been to extend the privileges and advantages originally confined to members of the established Church, and gradually place all citizens on an equal footing. Since the legal framework was always proactively supportive towards the Church of England, it has transformed to be proactively supportive towards freedom of religion and conscience. It is important to appreciate that this is the legacy of Establishment in respect of Constitutional Culture, in other words, the overarching norms and assumptions which govern collective life. This means that these values are embodied and owned not just by jurists, but across society. Whether or not a court would be inclined to assert a positive right rooted in common law remains to be seen, but it must be regarded as a real possibility, especially if the Human Rights Act were to be repealed or radically amended, removing or attenuating the impact of Article 9. Irrespective of whether or not a court would make such an assertion, the expectation of religious freedom subsisting in the extra-legal sphere means that these hard won rights cannot be easily swept away. They are the product of centuries of conflict and evolving collective self-understanding, and it is difficult to imagine that contemporary society would tolerate their removal, as this would be a radical and unsought change to the norms which govern our communal life. Acknowledgment I am indebted to Dr Helen Hall, Associate Professor at Nottingham Trent ­University and my co-author in a wide range of publications, for her insightful comments on a former draft of this piece. I am also most grateful to Md Jahid Hossain Bhuiyan and Ann Black, for their invaluable assistance with the ­editing of this contribution.

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Doran, Susan, and Thomas Freeman. Mary Tudor: New and Old Perspectives. London: Palgrave, 2011. Ennis, Daniel. Enter the Press-gang: Naval Impressment in Eighteenth Century British Literature. London: Associated University Press, 2002. Frankenberg, Günter. Comparative Constitutional Studies: Between Magic and Deceit. Cheltenham: Elgar, 2018. Hammer, Jane. The Protector: The Life and Times of Richard Cromwell. Erith: Vantage Press, 1997. Jackson, Clare. Restoration Scotland 1660–1690: Royalist Politics, Religion and Ideas. Woodbridge: Boydell Press, 2003. James, Leonie. The Great Firebrand: William Laud and Scotland 1617–1645. Woodbridge: The Boydell Press, 2017. Lindley, Keith. The Civil War and Revolution. London: Routledge, 1998. Macaulay, Thomas. The History of England (1848). McEnery, Tony. Swearing and Power: Bad Language, purity and power from 1586 to the present. Abingdon, Routledge, 2004. Marshall, Peter. Religious Identities in Henry VIII’s England. Abingdon: Routledge, 2016. Miller, Bradley, and Grant Huscroft, eds. The Challenge of Originalism: Theories of ­Constitutional Interpretation. Cambridge: Cambridge University Press, 2011. Miller, John. The Glorious Revolution. London: Routledge, 1997. Oliva, Javier García, and Helen Hall. Religion, Law and the Constitution: Balancing Beliefs in Britain. Abingdon: Routledge, 2018. Oliva, Javier García, and Helen Hall. Religion, Law and the Constitution: Balancing Beliefs in Britain. Abingdon: Routledge, 2018. Rack, Henry. A Reasonable Enthusiast. London: Epworth Press, 2002. Raffe, Alasdair. The Culture of Controversy: Religious Arguments in Scotland 1660–1714. Woodbridge: The Boydell Press, 2002. Raz, Joesph. The Authority of Law: Essays on Law and Morality. Oxford: Oxford ­University Press, 2009. Robertson, Geoffrey. The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold. London: Vintage, 2005. Russell, Meg. The Contemporary House of Lords: Westminster Bicameralism Revived. Oxford: Oxford University Press, 2013. Sumption, Jonathan. Law in a Time of Crisis. London: Profile Books, 2021. Takos, Jonas. Henry VIII in Twenty-First Century Popular Culture. Maryland: Lexington Books. Thomas Hobbes, Leviathan (1651). Thomas, Rachael. Medical School at a Glance. Chichester: Wiley, 2017.

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Blogs Oaten, Alex, and Chris Allen. “Coronavirus: extra police powers risk undermining ­public trust.” The Conversation, April 6, 2020 https://theconversation.com/coronavirus-extra-police-powers-risk-undermining-public-trust-135644.

Newspapers “Coronavirus: Police in absolute shock over massive party,” BBC News, March 29, 2020, https://www.bbc.co.uk/news/uk-england-derbyshire-52084653. Coronavirus: Peak District Drone Police Criticised for ‘Lockdown shaming,’” BBC News, March 27, 2020 https://www.bbc.co.uk/news/uk-england-derbyshire-52055201. “EU referendum campaigns suspended until Sunday after Jo Cox attack,” BBC News, June 17, 2016. Gaby Hinsliffe, “Carey queries future of State Church,” The Guardian, December 24, 2002 https://www.theguardian.com/uk/2000/dec/24/religion.world. Ibrahim Hasan and Susan Wolf, “Coronavirus and Police Drone Use,” Law Society Gazette, June 15, 2020 https://www.lawgazette.co.uk/legal-updates/coronavirusand-police-drone-use/5104590.article. Stephen Bates, “After 30 years as a closet Catholic, Tony Blair finally puts faith before politics” The Guardian, June 22, 2007 https://www.theguardian.com/politics/2007 /jun/22/uk.religion1.

Cases Alabady v Akram [2021] EWHC 2467. Begum v Home Secretary [2021] UKSC 7. Campbell v MGN Ltd [2004] 2 WLR 1232. Collins v Wilcock [1984] 1 WLR 1172. Eweida v United Kingdom [2013] ECHR 37. Gillick v West Norfolk and Wisbeach AHA [1985] UKHL 7. J M Carroll [An Infant] [1931] 1 KB 1937, per Lord Hewart CJ, 323. R v Brown 1993 UKHC 19. R (Unison) v Lord Chancellor UKSC 51. Racing Partnership Ltd and others v Done Bros (Cash Betting) Ltd and others; Racing ­Partnership Ltd and others v Ladbrokes Betting & Gaming Ltd and others [2021] 2 WLR 469.

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Sharpe v The Bishop of Worcester [2015] EWCA Civ 399. Shelbourne v Cancer Research UK [2019] EWHC 842.

Statutes Church of Scotland Act 1921, Schedule. Marriage Act 1949 (as amended). Marriage Registration of Buildings Act 1990. Military Service Act 1916. Places of Worship Registration Act 1855. Police and Criminal Evidence Act 1984. Race Relations Act 1976. Succession to the Crown Act.

Websites Abramowitz, Jack. “Why don’t Orthodox Jews shake hands,” Jew in the City, June 25, 2018 https://jewinthecity.com/2018/06/why-dont-orthodox-jews-shake-hands/. Elliott, Mark. “Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law,” Public Law for Everyone, (2017), Unison in the Supreme Court: ­Tribunal Fees, Constitutional Rights and the Rule of Law – Public Law for Everyone. The Charity Commission, “The Advancement of Religion and Public Benefit,” advancement-of-religion-for-the-public-benefit.pdf (publishing.service.gov.uk. Weddings, Law Commission-Current Project Status www.lawcom.gov.uk/project /­weddings.

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CHAPTER 10

Religious Freedom in South Africa Helena van Coller 1 Introduction South Africa is a multi-religious country. For religious institutions and ­communities to function effectively in society, they should be afforded the right to believe, which includes the right to manifest those beliefs everywhere, including in the public sphere. Religious institutions are subject to legal regulation and the degree of government regulation and interference into the affairs of religious institutions becomes very relevant.1 Although the South African Constitution2 (‘the Constitution’) recognises and protects religious freedom and sees it as an important mechanism for the equitable regulation of the relationship between the state and religious institutions, overregulation can create the danger of violating communities’ rights to freedom of religion. As is the case in any religiously diverse society, inevitably, members of ­different religious communities who hold different religious views and have practices will experience conflicts within, but also outside, these communities. This chapter will provide an outline of religious freedom in South Africa, and more particularly the collective aspect of the right to freedom of ­religion that Rivers describes as a ‘set of rights, immunities, privileges, and powers held by a religious association as such.’3 It will provide some background and an overview of the right to freedom of religion in South Africa, and the importance of religious autonomy for religious institutions. Through some examples, the discussion will also highlight instances where rights have been limited or come into conflict with one another, and had to be ­reasonably balanced. It will conclude by outlining how the values of tolerance and respect for religion can contribute to promoting religious freedom in South Africa.

1 For a comprehensive discussion on the regulation of religious institutions in South Africa, see Helena van Coller, Regulating Religion (London: Routledge, 2020). 2 The Constitution of the Republic of South Africa, 1996. 3 Julian Rivers, The Law of Organized Religions (London: Oxford University Press, 2010), 231. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_011 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Brief Background

The enactment of the 1996 Constitution brought a new approach to the ­relationship not only between church and state, but also between law and religion in South Africa. We saw a shift from an approach where churches and religious organisations knew no real freedom of religion during these periods, towards one with full recognition and protection of religious freedom. In relation to religion and religious diversity, the South African Constitution has been described as one of ‘profound toleration and accommodation.’4 Section 8(4) of the Constitution affords numerous rights to religious institutions as juristic persons.5 Section 15 of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion. This right may not be exercised in a manner inconsistent with the other provisions of the Bill of Rights and includes different aspects of religious freedom, such as the freedom of religious choice, freedom of religious observance, ­freedom of religious teaching and freedom to propagate a religion.6 The right to the practice of religion in community with others receives ­additional protection under section 31 of the Constitution. Section 31 p ­ rovides that persons belonging to cultural, religious or linguistic communities may not be denied the right, with other members of that community, to enjoy their ­culture, practise their religion and use their language, and to form, join or maintain cultural, religious and linguistic associations and other organs of civil society, also including indigenous communities. The description of freedom of religion in the South African Constitution is quite basic compared to the description in both the Universal Declaration of Human Rights7 and the Universal Declaration.8 It places a huge responsibility on both religious communities as well as the courts to interpret and give ­content to this right. Section 15 of the Constitution also creates the space for religious marriages and systems of personal and family law under any tradition

4 Johan van der Vyver, “Equality and Sovereignty of Religious Institutions: A South African ­Perspective,” Santa Clara Journal of International Law 10, no. 1 (2012): 157. 5 Including the right to freedom religion (section 15); freedom of assembly (section 17); ­freedom of association (section 18); the right to self-determination (sections 31 and 235). The Constitution also makes provision for a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (sections 181 (1)(c) and 185–186). 6 See Ian Currie and Johan de Waal, The Bill of Rights Handbook, 6 ed (Cape Town: Juta, 2013) 633. 7 Universal Declaration of Human Rights, 10 December 1948, 217A (III). 8 Council of Europe, European Convention for the Protection of Human Rights and ­Fundamental Freedoms.

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or religion.9 It further provides for religious observance in state institutions, provided that those observances are conducted on an equitable basis and attendance is free and voluntary.10 The inclusion of these two provisions, in particular section 15(2), has been described as contradicting ‘any depiction of the South African State as a secular State. South Africa is rather a religionneutral State whose constitutional provisions on the right to religious freedom sustain religion without preferring any particular faith or denomination.’11 However, any constitutional right, including the right to freedom of religion, can be limited under section 36 of the Constitution (the limitation clause). The section will assess whether any limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, by taking into account certain factors, such as 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. Section 8(2) of the Bill of Rights further provides for the horizontal application of the Bill of Rights in appropriate circumstances. Section 8(4) states that a juristic person (including a religious organisation) is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. Under our common law, religious organisations are seen as juristic persons. Included in this definition are all associations, societies, church denominations and locally organised congregations. Although freedom of religion is by its very nature an individual right, it can be exercised either individually or in community with others. Section 15, read together with section 31 of the Constitution, entrenches an individual right to freedom of religion as well as the collective right to freedom of religion. It is safe to say that the South African society is a society with no strict secular character, but rather a society where recognition is given to the wide variety of religious traditions and spaces in which they can interact and express their different religious beliefs and practices, even in the public sphere. The South African Government supported and confirmed this approach in its 2003

9 10 11

Section 15(3). Section 15(2). Lourens du Plessis, “Current Problems Concerning Church and State Relationships and Religious Freedom in South Africa. The Viewpoint of a Constitutional Lawyer,” in Legal Position of Churches and Church Autonomy, ed. Hildegard Warnink (Leuven: Peeters, 2001) 19 and further. See further Johan van der Vyver, “Godsdiensvryheid: Sekularisasie of ­Politieke Neutraliteit?” Woord en Daad (2000): 3–5.

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National Policy on Religion in Education.12 In the foreword to this policy it is explicitly stated that South Africa does not have a state religion and confirms the fact that ‘our country is not a secular state where there is a very strict separation between religion and the state.’ The policy recognises the rich and diverse religious heritage of South Africa and adopts a ‘cooperative model that accepts our rich heritage and the possibility of creative interaction between schools and faith whilst, protecting our young people from religious discrimination or coercion.’13 When it comes to religious freedom and the role of the state, section 7(2) of the Constitution is very important. This section makes it clear that the state must not only respect and protect the rights included in the Bill of Rights, but also actively promote and fulfil them. In the preferred cooperative model, there is interaction and cooperation between the state and religion, in line with section 7(2) of the Constitution. This resembles a model of ‘positive recognition,’ rather than mere accommodation, as advocated for by Bilchitz and Williams.14 Some features of this model include equal worth of individuals, regardless of their differences that individuals must be protected from coercion by the state. In this model the state must create enabling conditions for the positive expression of identity, without necessarily constructing religious structures for religious communities, but creating a space where people and communities can do so for themselves. The state should refrain from imposing a separation between itself and religion, and must allow for religion to enter the public domain, subject to the requirement that it must be done on an equal basis and show equal respect for the rights of all religious followers. This means that certain accommodations, advantages and exemptions may be conferred on some groups as long as it is fair and not to the disadvantage of others. Within this model, neutrality is interpreted as equal recognition of all religions by the state and not a complete withdrawal of religion from the public sphere. The South African Constitution never envisioned an absolute separation between the state and religion where they prohibit people from any form of religious practices in the public sphere. Such an approach would constitute an infringement of their right to religious freedom, equality, and human dignity. The Constitution creates a framework for accommodating rather than suppressing religion and religious differences. The South African Constitutional 12 13 14

In terms of Section 3 (4)(1) of the National Education Policy Act, 1996 (Act No. 27 of 1996), Government Gazette No. 25459 - Vol. 459 - 12 September 2003. “National Policy on Religion in Education,” 2. David Bilchitz and Alistair Williams, “Religion and the Public Sphere: Towards a Model that Positively Recognises Diversity,” South African Journal of Human Rights 28, (2012): 170.

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Court has interpreted the right to religious freedom to extend to the public domain, rejecting the idea that there should be no interaction between the state and religion. This will be emphasised further in the below discussion, through the various examples and judgments of the South African courts. Various authors have also argued that the Constitution envisioned an accommodation model where the state and religious communities work together to ensure that everyone is afforded the right to practise their religion without infringing on the rights of others.15 A cooperative model for structuring the relationship between religion and the state in South Africa combines ‘constitutional separation and mutual recognition’16 and is the preferred model for a democratic and pluralistic society like South Africa. The South African Constitution recognises our pluralistic society where people hold very diverse convictions and beliefs. This calls for an accommodative approach towards people’s differing beliefs, as recently expressed and confirmed by the court in the case of Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart:17 This fits a twin theme often raised during argument, and accepted by all, namely first, that we are not a secular State and, second, that in this country our diversity is celebrated, not tolerated. 3

Religious Autonomy

The collective aspect of the right to freedom of religion is not merely an aggregation of individual freedoms but the rights and freedoms asserted by the religious organisation as a group. In the South African context, the rights protected by section 31 of the Constitution have been described as significant both for individuals and for the communities they constitute. According to the Constitutional Court in Christian Education South Africa v Minister of Education18: ‘If the community as community dies, whether through destruction or assimilation, there would be nothing left in respect of which the individual could exercise associational rights.’ Read together with the right to freedom of 15

16 17 18

Lourens du Plessis, “Freedom of or Freedom from Religion? An Overview of Issues Pertinent to the Constitutional Protection of Religious Rights and Freedoms in the New South Africa,” Brigham Young University Law Review, no. 2 (2001): 450; Bilchitz and Williams, “Religion and the Public Sphere,” 164. “National Policy on Religion in Education,” para 4. Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ) para 95. Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 23.

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association (section 18) and the rights of religious communities (section 31), the right to freedom of religion further guarantees a degree of autonomy for religious communities to manifest their beliefs and run their affairs without interference. The South African Religious Charter (SACRRF)19 guarantees every religious institution the right to institutional freedom of religion, including the right to determine its own doctrines, and to regulate its own internal affairs, ­including organisational structures and procedures. Every religious institution is recognised and protected as having authority over its own affairs, and the state, including the judiciary, must respect the authority of every religious institution over its own affairs, and may not regulate or prescribe matters of doctrine and ordinances.20 Religious associations have the right to structure themselves in accordance with their religious precepts, and the degree of autonomy that each faith enjoys in the management of its religious affairs is determined by the state. Both the regulation and the protection of religious freedom in society rests with the state. Government legislation determines the scope of religious freedom for individuals as well as the collective autonomy of religious organisations. As pointed out by Doe and Jeremy,21 through its laws, the state regulates religion ‘in the distribution of entitlements,’ such as the various rights and privileges of religious organisations and their members. The state also regulates religion by setting limits to the exercise of these rights, through various duties, prohibitions and conditions. These rights and duties often come in conflict with each other, especially where the right to freedom of religion comes in ­conflict with other human rights, particularly through relevant equality and anti-­discrimination laws. One case that can serve as an example is a judgment by the Supreme Court of Appeal in De Lange v Presiding Bishop, Methodist Church of Southern Africa.22 Here the court was confronted with a dispute relating to the sexual orientation 19

20 21 22

The South African Charter of Religious Rights and Freedoms (SACRRF) is a document that defines the freedoms, rights, responsibilities and relationship between the ‘state’ of South Africa and her citizens concerning religious belief. The South African Charter of Religious Rights and Freedoms, Explanatory notes on the Charter, 16 May 2016, 4. Online at: www .crlcommission.org.za/docs/sacrrf.pdf. Sections 9, 9.1, 9.2 and 9.3 of the South African Charter of Religious Rights and Freedoms (SACRRF). Norman Doe and Anthony Jeremy, “Justification for Religious Autonomy,” in Law and Religion: Current Legal Issues, Volume 4 eds. Richard O’Dair and Andrew Lewis (London: Oxford University Press, 2001): 422. De Lange v Presiding Bishop, Methodist Church of Southern Africa 2015 (1) SA 106 (SCA).

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of a spiritual leader. The Supreme Court of Appeal dismissed De Lange’s appeal and she was granted leave to appeal to the Constitutional Court. In the Constitutional Court, De Lange argued that the church’s reliance on the rule preventing ministers from entering into same-sex marriages contravened her right to equality under the Constitution, which prohibits unfair discrimination based on marital status or sexual orientation. The Supreme Court of Appeal emphasised the nature of the dispute and that the issues in dispute went to sensitive matters of church doctrine and governance and that these were issues: [T]hat the Church should be left to determine domestically, as far as is possible, without interference from the Court. The Court should only become involved in the dispute where it is strictly necessary to do so. Even then, I am advised and submit that it will refrain from determining doctrinal issues, in order to avoid religious entanglement.23 The court considered protecting the autonomy of religious associations a central aspect of protecting religious rights and described such protection as ‘vital to a conscience-honouring social order.’24 Although the court made it clear that it was not necessary for it to deal with the collision between the rights to freedom of association and religious freedom, on the one hand, and the right to equality, on the other, it still took the view ‘that a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church.’25 The Constitutional Court dismissed De Lange’s appeal, finding that she disavowed her unfair discrimination claim before the High Court and that she should first have approached the Equality Court to hear the discrimination claim.26 In the Constitutional Court, Van der Westhuizen J concurred with the approach taken in the Supreme Court of Appeal and acknowledged the fact that fundamental rights and values often compete and that they need to be weighed, balanced and limited. With reference to the ‘doctrine of entanglement,’ the court held: It is of course one thing to say that the Constitution with its values and rights reaches everywhere, but quite another to expect the courts to make rulings and orders regarding people’s private lives and personal 23 24 25 26

De Lange SCA para 30. De Lange SCA para 31. De Lange SCA para 39. De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another 2016 (2) SA 1 (CC) para 30.

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preferences. Courts are not necessarily the best instruments to balance competing rights and values in intimate spheres where emotions and convictions determine choices and association. In this case the Supreme Court of Appeal, relying on the ‘doctrine of entanglement’, held that the dispute at issue was quintessentially one which a secular court should try to avoid, if possible.27 4

Limitation of Rights

In accordance with the requirement set out in section 36 of the Constitution (the limitation clause), the freedom to manifest a belief can be curtailed legitimately for certain purposes. Where a complaint is lodged against a religious association or where an association relies on religious freedom to justify its practices, various rights will have to be balanced. This would require a court to assess whether, in a particular case, there had been a constitutional limitation of the right of the complainant. To achieve this, a court would have to consider the purpose of the limitation and all the other factors referred to in section 36 of the Constitution, which include: – The nature of the right being limited and its importance to an open and democratic society. – The nature and extent of the limitation, which would require an assessment of the extent to which the right is infringed. – The relationship between the limitation and its purpose. This would require an assessment of the link between the limitation or discriminatory practice and the objectives and goals of the organisation. – The existence of less restrictive means to achieve the purpose. A conflict of rights often occurs in relation to the right to worship in community with others. Krishnaswami, Special Rapporteur to the United Nations on the Prevention of Discrimination and Protection of Minorities, highlighted the importance of religious rituals and practices and observed: 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, and these forms and observances might extend even to matters of food and dress.28 27 28

De Lange CC para 79. Arcot Krishnaswami, Study of Discrimination (New York: United Nations Publication, 1960), 19.

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As discussed earlier, the right to worship is an important part of the collective right to freedom of religion and normally takes place in community with others and may even take place in public. These rights are further entrenched in section 4 of the South African Charter of Religious Rights and Freedoms (SACRRF). This section states: [E]very person has the right to the private or public, and individual or joint, observance or exercise of their convictions, which may include but are not limited to reading and discussion of sacred texts, confession, proclamation, worship, prayer, witness, arrangements, attire, appearance, diet, customs, rituals and pilgrimages, and the observance of religious and other sacred days of rest, festivals and ceremonies. Although rights may be limited, a total prohibition or unreasonable g­ overnment regulation can affect a community’s right to worship. The next discussion will highlight a few examples of where different rights came in conflict with each other and had to be reasonably balanced. 5

Some Examples

5.1 Burial and Property Rights In the late 1990s, Douglas Laycock, stated that ‘land use regulation has become the most widespread obstacle to the free exercise of religion.’29 Burial rights relate to the whole range of death and burial practices in respect of the deceased, including aspects such as places of worship, disposal of the dead, burial grounds, crematoria and religious sites. Section 4 of the Charter confirms that anyone is entitled to visit sacred places and burial sites, as long as property rights and other legal considerations are observed. Importantly, any visit to sites on private land must be arranged with the landowner, and may not put an unreasonable burden on the landowner or cause damage of any kind to the property. Various rights may also have to be balanced when it comes to cemeteries, religious burials and access to these sites. When it comes to access to sacred places and burial sites, a conflict between the right to freedom of religion and property rights is inevitable. The right to bury on farmland has been particularly problematic. On the one hand, landowners feel that they have a right to enjoy undisturbed use and ownership of 29

Rex Adhar and Ian Leigh, Religious Freedom in the Liberal State, 2nd ed (Oxford: Oxford University Press, 2013), 346.

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their land. On the other hand, occupiers feel that as occupiers of land they have a right to security of tenure including the right to bury their deceased family members on land where they reside. An interesting example was the case of Nkosi and Another v Bührmann,30 where the owner of the farm refused consent for the burial of the son of an occupier on the farm. The court was of the view that the right to freedom of religion and religious practice has internal limits and that it ‘does not confer unfettered liberty to choose a grave site nor does it include the right to take a grave site without the consent of the owner of the land concerned.’31 The court subsequently dismissed the appeal. 5.2 Religious Slaughter Similar issues of balancing rights arise in the context of the slaughter of animals as part of cultural and religious practices, where difficult boundaries have to be drawn between various rights.32 In the context of religious slaughter, a conflict of rights arises between the rights to freedom of religion on the one hand and other rights, such as animal rights, on the other. In this instance, the limitation and regulation of religious slaughter practices may be necessary to preserve peace and tranquillity, particularly in localities where people of different faiths reside. The practice of ritual slaughter can be justifiably limited and regulated through legislation and municipal bylaws as an alternative method to a total ban of the practice. A total ban on ritual slaughter would not pass constitutional muster, since section 36 specifically requires that less restrictive means or alternative methods (in the form of regulation) should be considered, to achieve the purpose. Although a court is not empowered to rule on the credibility or truth of religion, it has been argued that ‘constitutional limitations aimed at the achievement of a desirable social result may be placed on religious rituals. It is not desirability of the ritual that is evaluated but the desirability of its effect, and one has to agree that it is the responsibility of government to give direction in the form of policy and legislation when dealing with these issues.’33 30 31

32 33

Nkosi and Another v Bührmann 2002 1 SA 372 (SCA). Nkosi para 49. For a full discussion, see further Helena van Coller, “Burial Rights: ­Protecting the Religious and Cultural Heritage of Communities in South Africa,” in R ­ eligious ­Pluralism, Heritage and Social Development in Africa eds. M Christian Green et al (South Africa: SUN Media, 2017), 333–351. See further Helena van Coller, “Ritual Slaughter and Religious Freedom: The Impact on the Flourishing of Religious Communities in South Africa,” in Law, Religion and Human Flourishing in Africa ed. M Christian Green (South Africa: SUN Media), 345–362. Christa Rautenbach, “Umkhosi Ukweshwama: Revival of a Zulu Festival in Celebration of the Universe’s Rites of Passage,” in Traditional African Religions in South Africa ed. Tom Bennet (Cape Town: UCT Press, 2011), 86.

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Legislation and regulations seek to strike a balance between the humane slaughtering of animals on the one hand, and the protection of religious beliefs on the other. 5.3 Religious Noise Another area where legislation and municipal bylaws are used to strike a ­balance between competing rights, relates to religious noise and property rights. As a general principle of law, a property owner has the right to enjoy his property free from a noise nuisance. However, there also rests a duty on an owner to exercise his powers within the normal and acceptable limits of reasonableness and not to infringe on other owners’ right of enjoyment of their property. Where any landowner exceeds this reasonable exercise of ownership rights, the conduct creates a nuisance to his neighbour that is actionable in accordance with the principles of neighbour law. Nuisance laws form part of South African neighbour law that provides for the rules and regulations on how property owners should use their properties. Neighbour law exists as a mechanism to balance the rights of neighbours, particularly where competing interests exist. Any sound which impairs or may impair the convenience or peace of a reasonable person, like church bells or the sound of musical instruments or sound amplifiers, qualifies as a noise nuisance that can be regulated on a national, provincial or local level through appropriate noise control regulations and bylaws. In relation to liturgical bell ringing or a call to prayer, a clear conflict of rights arises. Residents are entitled to use and enjoy their property free from a noise nuisance. At the same time, churches and religious institutions, through their members, are entitled to exercise their religious convictions, even in the public sphere. An interesting case came before the Durban High Court in the case of Ellaurie v Madrasah Taleemuddeen Islamic Institute.34 After a neighbour complained that the noise emanating from the neighbouring mosque deprived him of the enjoyment of his property, the court granted an interdict against a mosque, stopping its call to prayer. The court found that the constitutional right to freedom of religion entrenched in section 15(1) of the Constitution did not guarantee the practice or manifestations of religion in the form of the call to prayer.35 The court further found that the applicant is entitled to enjoy the use of his residential property and others are obliged to respect the applicant’s

34

Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another (3848/2019) [2020] ZAKZDHC 32; 2021 (2) SA 163 (KZD) (21 August 2020). 35 See Ellaurie para 16.

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right to the use and enjoyment of his property.36 As a result, the court granted the interdict. In upholding the neighbour’s right to the use and enjoyment of his property, the court did however did not consider the reasonableness of the alleged disturbance and whether the mosque exceeded its powers, and if it acted ­reasonably in the circumstances.37 The court further ignored the fact that religious believers are entitled to express and practise their beliefs as part of the right to freedom of religion. It should be read together with section 31, which guarantees the right of a person belonging to a religious community to enjoy and practise their religion with other members of that community. The court also did not consider any of the noise control regulations and bylaws in force. When it comes to liturgical bell–ringing, or the call to prayer as a form of religious manifestation, municipalities must take note of the fact that although these religious practices are not exempt from noise control regulations and bylaws, these laws and their application must also consider the religious needs of the community. What was clear from the various examples discussed above, is that Religion is not static. Religious rituals and practices must also adapt to changing circumstances and everyone must play their part in promoting tolerance and respect for religion. 6

Tolerance and Respect for Religion

By restricting the freedom of believers to manifest their religious beliefs everywhere, also in the public sphere, has been described as ‘ultimately extremely illiberal and intolerant. Instead, the South African society is realistic, broadminded and tolerant.’38 This supports the model of positive recognition and the cooperation between the state and religion as discussed above. The review of the South African law and various examples suggests that it shows a commitment to religious autonomy, particularly with the dawn of the new democracy and the constitutional entrenchment of religious freedom. In relation to some of the religious practices that also affect the rights of others, it was shown that collaboration between various stakeholders and mutual compromise between state and religious communities might be necessary. 36 37 38

Ellaurie para 17. See further Helena van Coller, “South African High Court Prohibits Muslim Call to Prayer. Why it got it Wrong,” The Conversation, October 12, 2020. Rassie Malherbe, “Religion in School,” NGTT 54, no. 4 (2013): 9.

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However, there are also instances where some developments over the past few years threatened the autonomy of religious institutions or where religious practices are unreasonably limited by the state. Concepts such as neutrality, impartiality, tolerance and respect for religious rights found their way into several recent government policies and statutes. The Constitutional Court emphasised two important values entrenched in our Constitution: the value of equality, but also the value of ‘tolerance and accommodation.’39 Farlam J supported this view when he further emphasised the importance of the values of ‘equality and tolerance of diversity and the recognition of the plural nature of our society.’40 These values are of great importance to religious communities in South Africa, both in asserting their religious rights, but also when their respective religious rights and convictions come in conflict with others. Section 185 of the Constitution establishes the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) with the primary object of promoting and developing peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, nondiscrimination and free association. We also see reference to issues of tolerance in the Religious Charter,41 but we find very little reference, in particular to religious tolerance, in other legislation. Legislation should give expression to the values of tolerance and respect for religion. Our Constitutional Court in the case of Prince v President, Cape Law Society,42 took the firm view that: Religious tolerance is accordingly not only important to those individuals who are saved from having to make excruciating choices between their beliefs and the law. It is deeply meaningful to all of us because religion and belief matter, and because living in an open society matters. The court further confirmed the view that the Constitution requires the community to affirm and reasonably accommodate difference, not merely to 39 40 41

42

Ryland v Edros 1997 (2) SA 690 (CC) para 707 H–708 I. Trengove refers to ten important constitutional principles as a manifestation of these two important values. Ryland v Edros 708 para H. The Preamble of the Religious Charter recognises that the recognition and effective protection of the rights of religious communities and institutions will contribute to a spirit of mutual respect and tolerance among the people of South Africa. It states further in section 9.1 that ‘every religious institution has the right in accordance with the principles of tolerance, fairness, openness and accountability to regulate its own internal affairs’. Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) para 170.

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tolerate it as a last resort.43 Clearly, our Constitution was designed to impress tolerance among South Africans and that ‘accommodating the variety of religions in this country would, however, be in accordance with the fundamental commitments of the Constitution to diversity and equality.’44 In S v Lawrence,45 O’Regan J took an approach that has been described as an approach ‘conducive to the promotion of religious tolerance.’ She highlights the concept of evenhandedness in the context of religious conviction, by stating that in her view: the requirements of the Constitution require more from the l­egislature than that it refrain from coercion. It requires in addition that the ­legislature refrain from favoring one religion over others. Fairness and even-handedness in relation to diverse religions is a necessary ­component of freedom of religion.46 Important to note is that a tolerant, even-handed and accommodating approach to religious rights and convictions does not mean that there should be no government scrutiny of religious affairs. The right to freedom of religion provides religious communities with the opportunity, but also the responsibility, not only to give content to this right, but also to formulate and defend their own religious identity within the limitations set by the Constitution and the law. 7 Conclusion Our Constitutional Court has highlighted the important fact that religious believers will not automatically be exempted from the laws of the land due to their religious beliefs. But at the same time, ‘the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’47 Various government laws, administrative practices and procedures must be clear and generally available to those affected thereby. They must serve as regulatory measures but also provide guidance and information to religious 43 44 45 46 47

See for instance MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC). Halton Cheadle and Dennis Davis, South African Constitutional Law: The Bill of Rights (South Africa: Butterworths, 2002), 210. S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC). S v Lawrence para 128. Christian Education South Africa v Minister of Education para 35.

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communities and its members. These laws and procedures must further give content to the fundamental rights set out in the Constitution and the South African government must refrain from imposing a separation between itself and religion. The state must allow religion to enter the public domain on an equal basis and with respect for the rights of all religious followers. This is what religious freedom requires of everyone. It is no easy task to strike a balance between the right to freedom of religion and the manifestation of those rights on the one hand, and inclusivity and the regulation of those practices through legislation on the other hand. The government has to find an adequate balance of all needs concerned. The preamble of the Religious Charter emphasises and recognises the fact that rights also impose the corresponding duty on everyone in society to respect the rights of others. In exercising our various rights, whether the right to freedom of religion or the right to manifest those rights in different circumstances, everyone should aim to act lawfully and ethically in accordance with the principles of tolerance, fairness, openness and accountability. Bibliography Books Adhar, Rex and Leigh, Ian. Religious Freedom in the Liberal State, 2nd ed. Oxford: Oxford University Press, 2013. Cheadle, Halton and Davis, Dennis. South African Constitutional Law: The Bill of Rights. South Africa: Butterworths, 2002. Currie, Ian and de Waal, Johan. The Bill of Rights Handbook, 6th ed. Cape Town: Juta, 2013. Krishnaswami, Arcot. Study of Discrimination. New York: United Nations Publication, 1960. Rivers, Julian. The Law of Organized Religions. London: Oxford University Press, 2010. Van Coller, Helena. Regulating Religion. London: Routledge, 2020.



Book Chapters

Du Plessis, Lourens. “Current Problems Concerning Church and State Relationships and Religious Freedom in South Africa. The Viewpoint of a Constitutional Lawyer.” In Legal Position of Churches and Church Autonomy, edited by Hildegard Warnink, 13–33. Leuven: Peeters, 2001.

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Doe, Norman and Jeremy, Anthony. “Justification for Religious Autonomy.” In Law and Religion: Current Legal Issues, Volume 4, edited by Richard O’Dair and Andrew Lewis, 421–442. London: Oxford University Press, 2001. Rautenbach, Christa. “Umkhosi Ukweshwama: Revival of a Zulu Festival in Celebration of the Universe’s Rites of Passage.” In Traditional African Religions in South Africa, edited by Tom Bennet, 63–89. Cape Town: UCT Press, 2011. Van Coller, Helena. “Burial Rights: Protecting the Religious and Cultural Heritage of Communities in South Africa.” In Religious Pluralism, Heritage and Social Development in Africa, edited by M Christian Green, 333–351. South Africa: SUN Media, 2017. Van Coller, Helena. “Ritual Slaughter and Religious Freedom: The Impact on the Flourishing of Religious Communities in South Africa.” In Law, Religion and Human Flourishing in Africa, edited by M Christian Green, 345–362. South Africa: SUN Media, 2019.

Articles Bilchitz, David and Williams, Alistair. “Religion and the Public Sphere: Towards a Model that Positively Recognises Diversity.” South African Journal of Human Rights 28 (2012): 146–175. Du Plessis, Lourens. “Freedom of or Freedom from Religion? An Overview of Issues Pertinent to the Constitutional Protection of Religious Rights and Freedoms in the New South Africa.” Brigham Young University Law Review, no. 2 (2001): 439–466. Malherbe, Rassie.“Religion in School.” NGTT 54, no. 4 (2013): 1–10. Van der Vyver, Johan. “Godsdiensvryheid: Sekularisasie of Politieke Neutraliteit?” Woord en Daad (2000): 3–5. Van der Vyver, Johan. “Equality and Sovereignty of Religious Institutions: A South ­African Perspective.” Santa Clara Journal of International Law 10, no 1 (2012): 147–170



News Articles

Van Coller, Helena. “South African High Court Prohibits Muslim Call to Prayer. Why it got it Wrong.” The Conversation, October 12, 2020. https://theconversation .com/south-african-high-court-prohibits-muslim-call-to-prayer-why-it-got-itwrong-145418

Cases Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) De Lange v Presiding Bishop, Methodist Church of Southern Africa 2015 (1) SA 106 (SCA) Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another 2016 (2) SA 1 (CC) Ellaurie v Madrasah Taleemuddeen Islamic Institute and Another (3848/2019) [2020] ZAKZDHC 32; 2021 (2) SA 163 (KZD) (21 August 2020) MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) Nkosi and Another v Bührmann 2002 1 SA 372 (SCA) Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others 2017 (6) SA 129 (GJ) para 95. Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) Ryland v Edros 1997 (2) SA 690 (CC) S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC)



Legislation and Instruments

The Constitution of the Republic of South Africa, 1996. 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. National Policy on Religion in Education, drafted in terms of Section 3 (4)(1) of the National Education Policy Act, 1996 (Act No. 27 of 1996), Government Gazette No. 25459 - Vol. 459 - 12 September 2003. The South African Charter of Religious Rights and Freedoms (SACRRF), Explanatory notes on the Charter, 16 May 2016, 4. Online at: www.crlcommission.org.za/docs /sacrrf.pdf. Universal Declaration of Human Rights, 10 December 1948, 217A (III).

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CHAPTER 11

Religious Freedom in Australia Peter Black 1 Introduction At the time of drafting the Australian Constitution in the 1890s, the p ­ opulation was overwhelmingly Christian, and Christian religious observance was fundamental to daily Australian life. Yet even though freedom of religion is one of the very few rights individual rights in the Constitution, the founding fathers did not designate a state religion. More than 120 years later, the religious landscape of Australia has markedly changed: Australia is multicultural and multireligious, ‘no religion’ is a rapidly increasing designation in the census, and commitments to international human rights obligations with respect to non-discrimination and equality rights sit alongside a myriad of anti-­ discrimination laws at a national and state level. Amongst this shifting social and legal dynamic, the issue of whether religious freedom is adequately protected under Australian law has become increasingly contentious in public and political debate.1 In particular, the recognition of same-sex marriage in 2017 provoked fears amongst some people of faith that religious freedom may come under threat in Australia,2 so much so that the Federal Government decided to appoint an Expert Panel to review religious freedom in Australia. Although the Expert Panel concluded that ‘by and large, Australians enjoy a high degree of religious freedom, and that basic protections are in place in Australian law,’3 the Government indicated its intention to introduce additional legislation to protect religious freedom.4 Almost three years and two exposure drafts later, the Government has so far not been able to pass any additional legislation to protect religious freedom, as the proposed Religious Freedom Bills have been 1 Carolyn Evans, Legal Protection of Religious Freedom in Australia (Sydney: The Federation Press, 2012), 1. 2 Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 3 Philip Ruddock, Rosalind Croucher, Annabelle Bennett, Frank Brennan, Nicholas Aroney, Religious Freedom Review: Report of the Expert Panel (Canberra: Australian Government – Department of Prime Minister and Cabinet, 2018), 10. 4 Prime Minister of Australia, “Media Release: Government response to the Religious Freedom Review,” Department of Prime Minister and Cabinet, 13 December, 2018, https://www .pm.gov.au/media/government-response-religious-freedom-review. © Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/9789004449961_012 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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widely criticised for privileging religious belief and activity over other beliefs and activities. This chapter will consider the history and changing role of religion in ­Australia before providing an overview of Australia’s constitutional and legal framework to protecting religious freedom, including statutory human rights charters and anti-discrimination laws. The chapter will also explore the current contemporary debate that seemingly pits religious freedom against the rights of LGBTI+ people.5 It will conclude that religious freedom is generally well protected under Australian law, although there are some opportunities to strengthen Australia’s anti-discrimination laws to make discrimination on the basis of religion unlawful in all jurisdictions. 2

Australian Context

2.1 History and the Changing Role of Religion in Australia Australia’s system of government, laws and legal traditions evolved from English and Christian, particularly Church of England, institutions and still reflect these traditions.6 However, even though the Church of England was also effectively considered to be the established church for the penal colony of Australia,7 it was an indifference towards religion that characterised the ­attitude of the colony towards religion more generally: A penal colony, fighting for survival, was not interested in religion, in any case, the time and circumstances of its foundation suggest that Australia may best be understood as the first genuinely post-Christian society. Its founding fathers, in contrast with those of the American colonies, came from a society where religion was in decline and disarray, eroded by ­scepticism and indifference. The climate they established was that of indifference to religion generally.8

5 LGBTI+ means Lesbian, Gay, Bisexual, Trans, Intersex, Queer, Sistergirl and Brotherboy ­people and other sexuality, sex and gender diverse people. 6 Augusto Zimmermann, “Constituting a ‘Christian Commonwealth’: Christian Foundations of Australia’s Constitutionalism,” The West Australian Jurist 5, (2014): 124. 7 Joint Standing Committee on Foreign Affairs, Defence and Trade, Conviction with C ­ ompassion: A Report on Freedom of Religion and Belief (Canberra: The Parliament of the Commonwealth of Australia, 2000), 52. 8 Patrick O’Farrell, The Catholic Church and Community in Australia: A History (Melbourne: Nelson, 1977), 17.

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Indeed, it can be observed that it is an indifference towards religion that has continued to shape the way in which Australia has historically approached religious freedom; that is, by largely leaving religion free from regulation. As Professor Carolyn Evans notes, ‘Sometimes the best protection that a government can give to religious freedom is to simply leave people free to make their own decisions about religious issues.’9 Of course, both at the time of colonisation in 1788 and in the centuries that followed, it could not be said that this indifference towards religion extended to Indigenous religious traditions. Australia’s Indigenous peoples have occupied the Australian mainland for at least 60,000 years and the Torres Strait Islands for at least 10,000 years. Aboriginal peoples on mainland Australia are the oldest living culture on Earth.10 The Indigenous religious traditions of Australia’s ­Aboriginal and Torres Strait Islander peoples take many forms; there is not one Aboriginal and Torres Strait Islander religion, there are many. Aboriginal spirituality mainly derives from the stories of the Dreaming, while Torres Strait Islander spirituality draws upon the stories of the Tagai.11 These religious traditions are often referred to as spirituality rather than religion and are derived from a sense of connection to the land and sea. In this way, the spiritual life of Australia’s Indigenous peoples is therefore different from monotheistic faiths in that they are ‘geosophical’ or earth-centred, rather than ‘theosophical’ or godcentred.12 It has also meant such Indigenous religious traditions have either been ignored or dismissed (in 1688, the explorer William Dampier has been said to have stated the established Church’s attitude to Indigenous beliefs for the next 300 years with, ‘I did not perceive that they did worship anything’),13 or in more recent decades, following the High Court’s recognition of native title in Mabo v Queensland (No 2),14 treated as an aspect of property law. As a result, Indigenous religious traditions generally lack the same level of recognition, status and protection accorded to the majority of ‘mainstream’ religions.15 Although outside the scope of this chapter, ‘there is a need for greater

9 Evans, Legal Protection of Religious Freedom in Australia, 107. 10 Anna-Sapfo Malaspinas et al., “Genomic history of Aboriginal Australia,” Nature 538, (2016), 207–214, https://doi.org/10.1038/nature18299. 11 Katja Mikhailovich and Alexandra Pavli, Freedom of Religion, Belief and Indigenous ­Spirituality, Practice and Cultural Rights (Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 2011), 8. 12 Mikhailovich and Pavli, Freedom of Religion, Belief and Indigenous Spirituality, Practice and Cultural Rights, 8. 13 Joint Standing Committee, Conviction with Compassion, 51. 14 Mabo v Queensland (No 2) (1992) 175 CLR 1. 15 Joint Standing Committee, Conviction with Compassion, 164. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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understanding and tolerance of Indigenous religious traditions: they are central to the spirituality of an important group in Australian society.’16 Given the history of colonisation, it is not surprising that when the ­Australian Constitution came into force in 1901, Australia was an overwhelmingly C ­ hristian country. In the 1901 Census, the Australian Bureau of Statistics reported that 96.1% of Australians identified as Christian (39.7% Anglican, 22.7% Catholic and 33.7% as other Christians), with 1.4% identifying with other religions and only 0.4% saying they had no religion.17 However, this religious profile has changed over the past 120 years in two main ways. First, there has been an increase in non-Christian religions, largely as a result of migration. Although in the 2016 Census Christianity was still the most commonly reported religion, only 52.1% of Australians identify as Christian (22.6% Catholic, 13.3% Anglican, 3.7% Uniting Church, 20.3% Presbyterian and Reformed, 2.1% Eastern Orthodox and 8.2% as other Christians).18 This means the proportion of the Australian population identifying as Christian has dropped from 96.1% in 1901, to 88% in 1947,19 to 52.1% in 2016. Of the 8.2% of the population in 2016 who identified as having a religion other than Christianity, Islam constituted 2.6%, Buddhism 2.4%, Hinduism 2.4%, Sikhism 0.5%, Judaism 0.4% and other non-Christian religions 8.2%.20 In the 10 years from 2006 to 2016, the proportion of people reporting a religion other than Christianity in the Census increased from 5.6% in 2006 to 8.2% in 2016.21 Although the increase was spread across most of the non-Christian religions, the top two were Hinduism (0.7% in 2006 to 1.9% in 2016) and Islam (1.7% to 2.6%).22 The second major trend is that in recent decades Australians have become less religious. Australians who reported no religion remained less than 1% of the population until the 1971 Census (when the instruction, ‘if no religion, write none’ was added to the question).23 Since 1971, when 6.7% of Australians reported as having no religion,24 the percentage has progressively increased to 12.9% in 1991 to 30.1% in 2016.25 The figure in the 2021 Census is likely to 16 17

Joint Standing Committee, Conviction with Compassion, 173. Australian Bureau of Statistics (ABS), Year Book Australia No 88 2006 (Canberra: ­Australian Bureau of Statistics Catalogue No 1301.0, 2006), 376. 18 Australian Bureau of Statistics (ABS), 2016 Census Data Summary: Religion in Australia (Canberra, Australian Bureau of Statistics Catalogue No 2071.0, 2017), 1. 19 ABS, Year Book Australia 2006, 376. 20 ABS, 2016 Census Data Summary: Religion in Australia, 1. 21 Ibid. 22 Ibid. 23 ABS, Year Book Australia 2006, 375. 24 ABS, 2016 Census Data Summary: Religion in Australia, 1. 25 Ibid. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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be higher, with recent Roy Morgan data revealing that in 2020, 45.5% of Australians describe themselves as having no religion.26 Interestingly, the Annual Household, Income and Labour Dynamics in Australia (HILDA) Survey also reveals that not only are fewer Australians identifying as religious, even those who are religious are increasingly attaching less importance to their faith.27 Importantly, although Australians are becoming less religious, the role of religious institutions – especially Christian institutions – in the provision of public services remains relatively strong.28 Religious organisations continue to play a central role in the provision of social goods, including health, aged care, education, welfare, and unemployment assistance. The increasing disconnect between the wide range of services provided by religious organisations (most of which also receive government funding or tax concessions) and a population that is becoming less religious, has been a source of contention in some of the recent debate surrounding religious freedom in Australia. Revelations of child sexual abuse in Catholic Church have also damaged public confidence in religious institutions, especially Catholic institutions.29 The Expert Panel noted that: the failure of some religious and other institutions to protect children from sexual abuse, as detailed through the Royal Commission into Institutional Responses to Child Sexual Abuse, cast a long shadow over the Panel’s deliberations. For some in the community, the fundamental breach of trust that occurred in these institutions prompted questions about the protections and privileges that religious bodies hold under Australian law.30 2.2 Concept of Religion in Australian Law Australian courts have acknowledged the challenges associated with satisfactorily defining the word ‘religion.’31 In Adelaide Company of Jehovah’s Witnesses 26

“The shrinking proportion of religious Australians,’ Roy Morgan, 14 September, 2021, http:// www.roymorgan.com/findings/8664-religion-in-australia-march-2020-202103220545. 27 Andrew Trounson, “Losing Our Religion,” The University of Melbourne, 20 November, 2020, https://pursuit.unimelb.edu.au/articles/losing-our-religion. 28 Evans, Legal Protection of Religious Freedom in Australia, 4. 29 Nick Baker & Teresa Tan, “Do Australians trust religious leaders?” ABC News Online, 13 June, 2021, https://www.abc.net.au/news/2021-06-13/austraila-talks-trust-religious-figures-dropping-covid-pandemic/100202940. 30 Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 11. 31 See generally Wojciech Sadurski, “On Legal Definitions of Religion,” Australian Law ­Journal 63, (1989): 834.

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Inc v Commonwealth, Latham CJ stated that ‘it would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed in the world.’32 However, in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (‘­Scientology Case’),33 the High Court attempted to do just that in a case that concerned the eligibility of Church of New Faith as a ‘religious institution’ for the purpose of tax exemptions under Victorian law. The Court unanimously held that Scientology was a religion for the purposes of the tax exemptions, although three slightly different – but broad – tests for defining religion were enunciated by the Justices. Mason ACJ and Brennan J proposed that there were two criteria for a religion: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.34 Importantly, Mason ACJ and Brennan J, in proposing this definition, sought to ensure the inclusion of religions that were not well established or were yet to find broad acceptance in the community: A definition cannot be adopted merely because it would satisfy the majority of the community or because it corresponds with a concept ­currently accepted by that majority.35 Wilson and Deane JJ attempted to define religion by identifying four indicia ‘derived by empirical observation of accepted religions’: belief in the supernatural; ideas that relate to an individual’s nature and place in the universe and relation to things supernatural; ideas that are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance; the adherents constitute an identifiable group or identifiable groups; and the adherents themselves see the collection of ideas and/or practices as 32 33 34 35

Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 123. Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (‘Scientology Case’) (1983) 154 CLR 120. Scientology Case, 136. Scientology Case, 136.

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constituting a religion.36 Murphy J adopted the broadest definition, reasoning that “any body which claimed to be religious and offered a way to find meaning and purpose in life was religious.”37 The approach adopted by Mason ACJ and Brennan J in the Scientology Case ‘is the one that has most commonly been taken up in other legal contexts in which a definition of religion has been required,’38 although the approach of Wilson and Deane JJ has also had some influence.39 Indeed, even though the term religion appears in more than 100 Acts of Australian Parliaments, they generally provide little definition of that term.40 An additional approach is for a law to grant a power to the executive to recognise a body or organisation as religious for particular purposes. The most prominent example of this approach is provided for in the Marriage Act 1961 (Cth). The Marriage (Recognised Denominations) Proclamation 2018 lists all religious organisations recognised for the purposes of the Marriage Act.41 Of course, ministers of religion not associated with a recognised denomination may be authorised as a Commonwealth-registered marriage celebrant,42 or religious marriage celebrant through the Marriage Celebrants Program.43 This sort of approach is usually only adopted when certainty around religious organisations is needed for administrative purposes;44 in most instances, the definition of Mascon ACJ and Brennan J in the Scientology Case is followed across Australian laws where no more specific definition of religion has been given. 3

Domestic Legal Framework

The legal framework for the protection of religious freedom in Australia includes constitutional protections and Commonwealth, State and Territory legislation, including provisions relating to discrimination and vilification. It is also important to note that ‘Where the law is silent, people are free to act in

36 Scientology Case, 174. 37 Scientology Case, 151. 38 Evans, Legal Protection of Religious Freedom in Australia, 51. 39 Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 35. 40 Evans, Legal Protection of Religious Freedom in Australia, 53. 41 Marriage Act 1961 (Cth), ss 5(1), 26, 29. 42 Marriage Act 1961 (Cth), s 39C. 43 Marriage Act 1961 (Cth), s 39DA. 44 Evans, Legal Protection of Religious Freedom in Australia, 67.

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accordance with their faith so long as doing so does not interfere with other laws.’45 3.1 The Constitution Unlike most similar liberal democracies, Australia’s Constitution does not ­contain a bill of rights. However, freedom of religion is one of the five explicit individual rights in the Constitution.46 Section 116 of the Constitution provides: The Commonwealth shall not make any law for establishing any r­ eligion, or for imposing any religious observance, or for prohibiting the free ­exercise of any religion, and no religious test shall be required as a ­qualification for any office or public trust under the Commonwealth. This section, which is based on the religion clauses of the United States Constitution, was included in the Australian Constitution to ensure that the Federal Government would not be able to pass laws in respect of religion.47 There are several significant limitations to the scope of s 116. First, it only prohibits the Commonwealth from making certain laws. Even though s 116 is incongruously included in Chapter 5 of the Constitution, headed ‘The States,’ it does not apply to the States. Whether the Territories are restricted by ­section 116 has been considered by the High Court on a number of occasions, but the position remains unclear.48 Second, s 116 operates as a limitation on Commonwealth legislative power; it does not create an individual right. This means that religious freedom cannot be asserted as a defence to protect individuals against actions by other individuals or organisations. It also means that s 116 does not create an obligation on the Commonwealth to do anything to protect religious freedom.

45 46

Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 34. These are the right to vote (s 41), protection against acquisition of property on unjust terms (s 51 (xxxi)), the right to a trial by jury (s 80), freedom of religion (s 116) and prohibition of discrimination on the basis of State of residency (s 117). See Richard Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891–1906 (Melbourne: Melbourne University Press, 1976) for a comprehensive account as to how religious freedom was included in the Constitution when other rights were ignored. See also Stephen McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for s 116,” Monash University Law Review 18, no. 2 (1992): 207–236. 47 Luke Beck, Religious Freedom and the Australian Constitution: Origins and Future (­London: Routledge, 2018), 59–77. 48 See Lamshed v Lake (1958) 99 CLR 132 and Kruger v Commonwealth (1997) 190 CLR 1.

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There have only been a handful of cases before the High Court that have considered s 116, with most of them concerning the third of clause: the free exercise clause. Beginning with the early case of Krygger v Williams in 1912,49 the High Court has adopted a narrow interpretation of the free exercise clause. In that case, the Commonwealth’s conscription laws, which required Krygger to attend military training contrary to his Christian beliefs that required him to be a conscientious objector, were unsuccessfully challenged. Grifith CJ noted: To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of s 116.50 The Court was very dismissive of Krygger’s claim: Griffith CJ described his position as ‘absurd,’51 and Barton J wrote that the case was ‘as thin as anything of the kind that has come before us.’52 The free exercise clause was considered again in Adelaide Company of ­Jehovah’s Witnesses v the Commonwealth (‘Jehovah’s Witnessses Case’),53 where the High Court held that laws during World War II to dissolve subversive associations and seize their property, even where those associations were religious (such as Jehovah’s Witnesses), did not infringe the section as the laws were directed to the preservation of the community. The Court acknowledged that the free exercise of religion was not absolute; Lathan CJ noted that only ‘undue infringement[s] of religion freedom were prohibited,’54 while Starke J stated that ‘the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations … such as are reasonably necessary for the protection of the community and in the interests of social order.’55 In Kruger v Commonwealth (‘Stolen Generations Case’),56 the Court considered legislation that authorised the compulsory removal of Aboriginal children 49 50 51 52 53 54 55 56

Krygger v Williams (1912) 15 CLR p. 366. Krygger v Williams, 369. Krygger v Williams, 371. Krygger v Williams, 373. Adelaide Company of Jehovah’s Witnesses v the Commonwealth (1943) 67 CLR 116. Jehovah’s Witnesses Case, 131. Jehovah’s Witnesses Case, 155. Kruger v Commonwealth (‘Stolen Generations Case’) (1997) 190 CLR 1. For a good commentary on the case, see Sarah Joseph, “Kruger v The Commonwealth: Constitutional Rights and the Stolen Generations,” Monash University Law Review 24, no. 2 (1998): 486–498.

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from their families and the detention of Aboriginal people on reserves. It was argued that the enforced separation of people from their culture prevented children from learning and participating in traditional Aboriginal religious traditions. The majority held that the law itself did not mention religion and could therefore not be ‘for’ preventing the free exercise of religion.57 Gaudron J adopted a slightly broader approach construing s 116 as ‘to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it.’58 Gaudron J’s approach is to be preferred as ‘the Commonwealth has no power to legislate with respect to religion, and, thus, a law which, in terms, prohibits religious practice would, ordinarily, not be a law on a subject-matter with respect to which the Commonwealth has any power to legislate,’59 rendering s 116 redundant. Such an approach also provides for a more robust protection of religious practices. The other clauses in s 116 have received even less judicial consideration than the free exercise clause, however, they have also been construed narrowly, especially the establishment clause. As Evans observes, this clause ‘played little role in public life until a challenge to the constitutionality of the Commonwealth’s appropriation for education in the early 1980s.’60 Attorney-General (Vic) ex rel Black v Commonwealth (‘DOGS Case’),61 involved Commonwealth legislation that provided public funding of religious primary and secondary schools via grants to the States pursuant to s 96 of the Constitution. The DOGS (Defence of Government Schools) Association argued that the grants constituted an establishment of religion, relying heavily on the jurisprudence of the Supreme Court of the United States which prohibits funding for religious schools. Only ­Murphy J, in dissent, supported this position. Murphy J concluded that any financial aid by the Commonwealth to any or all religious groups was a violation of s 116 as “[n]on-preferential’ sponsoring of or aiding religion is still ‘establishing’ religion.’62 The five justices in the majority, who each wrote sepa57 Stolen Generations Case, 40 (Brennan CJ), 60-1 (Dawson J) and 86 (Toohey J). 58 Stolen Generations Case, 131. 59 Stolen Generations Case, 131. 60 Evans, Legal Protection of Religious Freedom in Australia, 81. For some of the history and context, see Jane Lee, “The dog fight over school funding that went all the way to the High Court,” ABC News Online, 12 May, 2020, https://www.abc.net.au/news/2020-05-12 /the-­history-listen-the-forgotten-fight-over-school-funding-dogs/12101774. 61 Attorney-General (Vic) ex rel Black v Commonwealth (“DOGS Case”) (1981) 146 CLR 559. See Joshua Puls, “The Wall Separation: Section 116, the First Amendment and Constitutional Religious Guarantees,” Federal Law Review 139, (1998): 139–164 and Luke Beck, “The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study,” Adelaide Law Review 35, (2014): 225–250. 62 DOGS Case, 624.

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rate judgments and offered slightly different definitions of the establishment clause, reasoned that the establishment clause only ­prohibited Commonwealth laws intending to set up a single national official religion.63 Barwick CJ articulated what constitutes the establishment of religion in this way: It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the ­established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the ­Commonwealth ‘establishment.’64 The reasoning in the DOGS Case has been described as ‘very narrow,’65 ‘restrictive,’66 ‘strict,’67 and setting ‘a very high threshold.’68 However, despite the criticisms of this approach and suggestions that the meaning of the ­establishment clause requires reconsideration,69 it remains the only High Court decision on the meaning the clause. The other two clauses in s 116 have received even less judicial consideration. The religious tests clause was considered in Williams v Commonwealth (No 1) (‘School Chaplains Case’),70 where it effectively held that direct control or direct employment is necessary for an office to be considered ‘under the Commonwealth.’ This means that, as occurred in this case, where the Commonwealth has entered in a contract with a service provider and it provides that the service provider can only hire religious people to perform the contract work, the people hired by the service provider did not hold offices under the Commonwealth. As Beck notes, the ‘practical effect’ of the School Chaplains Case is that ‘the Commonwealth can impose religious tests for jobs, provided

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DOGS Case, 582 (Barwick CJ), 597 (Gibbs J), 605-6 (Stephen J), 616 (Mason J) and 653 (­Wilson J). 64 DOGS Case, 582. 65 Wojciech Sadurski, “Neutrality of Law Towards Religion,” Sydney Law Review 12 (1989). 66 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156, 165 [28]. 67 Puls, “The Wall of Separation,” 144. 68 Evans, Legal Protection of Religious Freedom in Australia, 85. 69 See Beck, “The Establishment Clause of the Australian Constitution,” 226. 70 Williams v Commonwealth (No 1) (‘School Chaplains Case’) (2012) 248 CLR 156.

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the Commonwealth outsource the jobs rather than hire workers directly,’71 effectively circumventing the clause. The religious observances clause has been considered only once by one Justice; Murphy J’s dissenting judgment in R v Winneke; Ex parte Gallagher,72 where he held that a law requiring a person to take an oath before giving evidence before a Royal Commission was a law imposing a religious observance.73 Evans observes the fact that only Murphy J considered this issue in this case and was not taken up by other Justices is ‘perhaps a reflection of the marginal role that s 116 has played in Australian Constitutional Law.’74 Indeed, the narrow interpretation adopted by the Court with respect to all of the clauses in s 116, in the handful of cases where they have had the opportunity to consider the section, has seen s 116 play a limited role in protecting religious freedom in Australia. As s 116 has been ineffective for those who have tried to rely on it, there have been two attempts to amend s 116 by way of referendum to extend its application to the States and Territories, in 194475 and 1988,76 both of which failed. The 1988 proposal also would have amended the wording of the establishment clause of the provision, which may have changed the conclusion reached in the DOGS Case, which is often cited as a reason why that proposal failed.77 The only other constitutional provision in Australia that expressly concerns religion is s 46 of the Constitution Act 1934 (Tas), which provides: (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. (2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.

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Luke Beck, Australian Constitutional Law: Concepts and Cases (Cambridge: Cambridge University Press, 2020), 247. 72 R v Winneke; Ex parte Gallagher (1982) 152 CLR 211. 73 R v Winneke; Ex parte Gallagher, 229. 74 Evans, Legal Protection of Religious Freedom in Australia, 87. 75 Constitution Alteration Bill 1944 (Cth). 76 Constitutional Alteration (Rights and Freedoms) Bill 1988 (Cth). 77 Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 35.

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This section has not been subject to judicial application. However, it provides limited protection as it is not an entrenched provision and can be overridden by any Act of the Tasmanian Parliament: s 46 does not, in terms, confer any personal rights or freedoms on ­citizens. The qualified ‘guarantee’ has been held to prevent coercion in relation to the practise of religion and to guarantee a freedom to profess and ­practise a person’s religion of choice: see McGee v Attorney-General [1974] IR 284 at 316 – a decision of the Irish Supreme Court on the equivalent provision of the Constitution of Ireland, Article 44(2)(1). There is, however, no authority to which I was referred which determines the practical effect of the ‘guarantee.’ In particular, there remains an open question as to whether it could operate to render invalid provisions of other Tasmanian legislation (or subordinate legislation made thereunder), given that the Constitution Act is also an Act of the Tasmanian Parliament and s 46 is not an entrenched provision.78 No other State or Territory protects religious freedom in its Constitution. However, some States and Territories now have human rights legislation that include protections for religious freedom. 3.2 Statutory Human Rights Charters Queensland,79 Victoria,80 and the Australian Capital Territory81 are the only States and Territories which have statutory human rights Acts. As noted by the Expert Panel, the overall framework for protection of religion differs significantly in jurisdictions that have statutory human rights Acts.82 These Acts set out the human rights they seek to protect and promote.83 The majority of these rights are drawn from the International Covenant on Civil and Political Rights, a treaty which Australia ratified in 1980. Relevantly, these Acts include protections for freedom of thought, conscience, religion and belief,84 the right of persons with particular cultural, religious, racial or linguistic backgrounds 78 79 80 81 82 83 84

Corneloup v Launceston City Council [2016] FCA 974, [38]. Human Rights Act 2019 (Qld). Charter of Human Rights and Responsibilities 2006 (Vic). Human Rights Act 2004 (ACT). Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 37. Human Rights Act 2004 (ACT), Part 3, 3A and 3B; Human Rights Act 2019 (Qld), Part 2; ­Charter of Human Rights and Responsibilities 2006 (Vic), Part 2. Human Rights Act 2004 (ACT), s 14; Human Rights Act 2019 (Qld), s 20; Charter of Human Rights and Responsibilities 2006 (Vic), s 14.

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to declare and practise their religion,85 and the rights of Aboriginal and Torres Strait Islander people to maintain their distinctive spiritual relationship with land, waters and other resources with which they have a traditional connection.86 These Acts then set out a series of requirements or obligations with respect to the human rights set out in the Acts. The basic framework in these Acts is as follows: – All legislation introduced into Parliament must be accompanied by a ‘statement of compatibility’ that sets out whether the Bill is compatible with the rights listed in the Act and the nature and extent of any incompatibility.87 These statements have no legal effect.88 In exceptional circumstances, the Queensland and Victorians Acts (but not the ACT Act) entitle the Parliament to make an ‘override declaration’ about a law, or part of a law.89 If an override declaration is made, the Act does not apply to the law or part of a law the declaration has been made about.90 – Courts are required, so far as is possible, to interpret legislation in a way that is compatible with the human rights protected by the Acts.91 An Act or provision that is incompatible with a human right is not invalid (as it would be with a constitutional bill of rights),92 but a declaration of incompatibility requires an explanation be given to Parliament as to what response the Government has to the declaration.93 – Public authorities are required not to act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to

85 86 87 88 89 90 91 92 93

Human Rights Act 2004 (ACT), s 27(1); Human Rights Act 2019 (Qld), s 27; Charter of Human Rights and Responsibilities 2006 (Vic), s 19(1). Human Rights Act 2004 (ACT), s 27(2); Human Rights Act 2019 (Qld), s 28; Charter of Human Rights and Responsibilities 2006 (Vic), s 19(2). Human Rights Act 2004 (ACT), s 39; Human Rights Act 2019 (Qld), s 38; Charter of Human Rights and Responsibilities 2006 (Vic), s 28. Human Rights Act 2004 (ACT), s 39; Human Rights Act 2019 (Qld), s 38(4); Charter of Human Rights and Responsibilities 2006 (Vic), s 28(4). Human Rights Act 2019 (Qld), s 43; Charter of Human Rights and Responsibilities 2006 (Vic), s 31(1). Human Rights Act 2019 (Qld), s 45; Charter of Human Rights and Responsibilities 2006 (Vic), s 31(6). Human Rights Act 2004 (ACT), s 30; Human Rights Act 2019 (Qld), s 48; Charter of Human Rights and Responsibilities 2006 (Vic), s 32. Human Rights Act 2004 (ACT), s 32(3); Human Rights Act 2019 (Qld), s 54; Charter of Human Rights and Responsibilities 2006 (Vic), s 36(5). Human Rights Act 2004 (ACT), s 33; Human Rights Act 2019 (Qld), s 56; Charter of Human Rights and Responsibilities 2006 (Vic), s 37.

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a relevant human right.94 This obligation may be enforceable against the authority by way of legal proceedings,95 but damages are not available by way of relief merely because of a breach of the Act.96 A key feature of these Acts is that this framework puts the focus on ‘improving human rights protection by way of parliament making good laws and government agencies applying those laws fairly’ and keeps the courts’ role as ‘modest, limited to functions such as endeavouring to interpret legislation consistently with human rights, and identifying laws that breach human rights and which parliament should consider again.’97 Although the Queensland Act only came into effect from 1 January 2020, the Victorian and ACT Acts have been in operation for over 15 years now. It is generally accepted that these Acts have succeeded in improving the protection of human rights in Victoria and the ACT,98 although there have not been many cases that have specifically considered religious freedom. An e­ xample of religious freedom being considered in Victoria involved an ­application to establish a Shi-ite Islamic Mosque in a Melbourne suburb, on land ­adjacent to a church whose congregation was mostly comprised of people of Assyrian background, many of whom had experience violence and human rights abuses in Iraq at the hands of Islamic extremists. Hume City Council approved the application to build the mosque. Ten local residents objected on the grounds that the mosque would have a significant detrimental impact on the church community and would diminish the safety of the area. In their review of the Council decision to grant the application, the Victorian Civil and Administrative Tribunal considered the right to freedom of thought, conscience and belief protected in s 14 of the Charter of Human Rights and Responsibilities.99 The Tribunal upheld the Council’s permit approval, stating:

94 95 96 97 98 99

Human Rights Act 2004 (ACT), s 40B; Human Rights Act 2019 (Qld), s 58; Charter of Human Rights and Responsibilities 2006 (Vic), s 37. Human Rights Act 2004 (ACT), s 40C; Human Rights Act 2019 (Qld), s 59; Charter of Human Rights and Responsibilities 2006 (Vic), s 39(1). Human Rights Act 2004 (ACT), s 40C(4); Human Rights Act 2019 (Qld), s 59(3); Charter of Human Rights and Responsibilities 2006 (Vic), s 39(3). George Williams & Daniel Reynolds, “How a charter of rights could protect Australians’ fundamental freedoms,” The Conversation, 7 August, 2017, https://theconversation.com /how-a-charter-of-rights-could-protect-australians-fundamental-freedoms-81947. Daniel Reynolds & George Williams, A Charter of Rights for Australia: 4th edition (Sydney: UNSW Press, 2017): 79–84. Rutherford & Ors v Hume CC [2014] VCAT 786.

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Whilst the followers of one religion may have fled war or persecution overseas, at the hands of extremists from another religion, it would be a poor outcome for planning in Victoria if town planning decisions were made to achieve an outcome that effectively replicates in Australia those same divisions, fear and distrust. Town planning decisions should not set out to separate people, or the use of land, based on ethnicity or religion. Town planning decisions should reflect Australia’s rich and proud ­history of welcoming all religions, and provide a society where people of different faiths can live, work and worship side-by-side, without fear of threats, intimidation or violence.100 Of course, not all States and Territories have statutory human rights charters and there is no Federal or Commonwealth human rights act. Indeed, religious freedom across all jurisdictions in Australia would be enhanced by if the Commonwealth and all States and Territories adopted a statutory human rights charter that protected religious freedom as part of a comprehensive charter of rights that protects and balances all fundamental human rights. In the meantime, discrimination laws are critical to understanding the protection of religious freedom in Australia. 3.3 Discrimination Laws Evans helpfully articulates the two main ways discrimination laws intersect with religious freedom in Australia.101 First, in some – but not all – Australian jurisdictions, discrimination laws protect individuals against discrimination based on their religion. Second, religious groups and individuals have various exemptions under discrimination laws that allow religious individuals or groups to engage in discrimination (based on religion or sex, marital status or sexual orientation). These exemptions vary considerably between jurisdictions and have been the subject of significant public debate in recent years, especially in relation to religious freedom an LGBTI+ equality. However, before considering that debate, it is necessary to provide an overview of the operation of Australia’s discrimination laws. All jurisdictions (Commonwealth, State and Territory) provide protections from discrimination based on a range of attributes, such as sex, age, race and disability. These laws protect people with these attributes in various areas of activity such as work, education and the receipt of goods and services. There is 100 Rutherford & Ors v Hume CC, [14]. 101 Evans, Legal Protection of Religious Freedom in Australia, 138.

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considerable variation between jurisdictions as to both the attributes and the areas of activity they regulate. With respect to religion, religion is not a protected attribute under ­Commonwealth anti-discrimination law.102 However, a person who suffers discrimination in employment on the basis of religion can make a complaint to the Australian Human Rights Commission and the Commission has the f­unction of inquiring into and attempting to reach a settlement of such complaints through conciliation.103 The Commission also has the function of inquiring into complaints about acts or practices by or on behalf of the Commonwealth or under a Commonwealth enactment which may be inconsistent with articles 18 (freedom of religion) or 26 (right to non-discrimination, including on the basis of religion) of the International Covenant on Civil and Political Rights or the Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion or Belief.104 The Australian Human Rights Commission believes it receives ‘a relatively small number of complaints” because of the “narrow parameters within which the Commission is able to accept complaints about discrimination on the basis of religion, or other interference with the freedom of religion.’105 All States and Territories protect against discrimination based on religion except for New South Wales and South Australia.106 New South Wales prohibits

102 The Racial Discrimination Act 1975 (Cth) does not specifically prohibit discrimination on the ground of religious identity or belief. However, religious groups may be regarded as being covered by the Racial Discrimination Act where they can establish a common “­ethnic origin.” The term ‘ethnic origin’ has been interpreted broadly in a number of jurisdictions to include Jewish and Sikh people: see, for example, See also King-Ansell v Police [1979] 2 NZLR 531; Mandla v Dowell Lee [1983] 2 AC 548; Miller v Wertheim [2002] FCAFC 156. 103 Australian Human Rights Commission Act 1986 (Cth) ss 3 (definition is ‘discrimination’) and 31. These functions are conferred on the Commission pursuant to Australia’s international obligations under International Labour Organization Convention (No 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958. 104 Australian Human Rights Commission Act 1986 (Cth), ss 3 (definition of ‘human rights’), 11(1)(f) and 47; Human Rights and Equal Opportunity Commission Act 1986 (Cth) – Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion or Belief, 8 February 1993. https://www.legislation.gov.au/Details/F2009B00174 (viewed 8 February 2017). 105 Australian Human Rights Commission Submission to the Expert Panel, Religious Freedom Review (February 2018), 22. 106 Discrimination Act 1991 (ACT), ss 7–8; Anti-Discrimination Act 2004 (NT), s 19(m); Anti-­ Discrimination Act 1991 (Qld), s 7(i); Anti-Discrimination Act 1998 (Tas), s 16(o), (p); Equal Opportunity Act 2010 (Vic), s 6(n); Equal Opportunity Act 1984 (WA), s 53(1).

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discrimination on the grounds of ethno-religious origin.107 South Australia prohibits discrimination on the grounds of religious appearance or dress.108 These laws protect individuals against discrimination in certain areas of public life. These areas vary depending on the jurisdiction but includes areas such as education,109 employment,110 the provision of goods and services and facilities,111 accommodation,112 and membership of clubs and associations.113 All jurisdictions (Commonwealth, State and Territory) provide for limited exceptions for religious bodies with respect to anti-discrimination provisions that protect other attributes, such as sex or sexual orientation. Once again, the application and scope of these exceptions vary considerably between jurisdictions. At the Commonwealth level, religious belief is not an exception under the Racial Discrimination Act 1975 (Cth) but there are several religious based exceptions under the Sex Discrimination Act 1984 (Cth). For example, it is not unlawful for a religious body to discriminate in relation to the appointment of religious office holders such as priests,114 or in relation to accommodation provided for by that religious body.115 These examples are limited and relatively uncontroversial. Some of the broader exceptions in the Act are more contentious. Section 37(d) of the Sex Discrimination Act 1984 (Cth) provides an exception for ‘any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion. ‘Similarly contentious are the exceptions for ­discrimination by a person in the context of ‘an educational institution that 107 108 109 110 111 112 113 114 115

Anti-Discrimination Act 1977 (NSW), ss 4 and 7. Equal Opportunity Act 1984 (SA), s 85T(1)(f). Discrimination Act 1991 (ACT), s 18; Anti-Discrimination Act 2004 (NT), s 29; Anti-Discrimination Act 1991 (Qld), ss 38–49, 41; Anti-Discrimination Act 1998 (Tas), s 22(1)(b); Equal Opportunity Act 2010 (Vic), s 38; Equal Opportunity Act 1984 (WA), s 18. Discrimination Act 1991 (ACT), ss 10–17; Anti-Discrimination Act 2004 (NT), ss 31–37A; Anti-Discrimination Act 1991 (Qld), ss 13–36, 41; Anti-Discrimination Act 1998 (Tas), s 22(1)(a); Equal Opportunity Act 2010 (Vic), ss 16–21, 30–31; Equal Opportunity Act 1984 (WA), s 11–17. Discrimination Act 1991 (ACT), s 20; Anti-Discrimination Act 2004 (NT), s 41; Anti-Discrimination Act 1991 (Qld), ss 45–51; Anti-Discrimination Act 1998 (Tas), s 22(1)(c); Equal Opportunity Act 2010 (Vic), s 42; Equal Opportunity Act 1984 (WA), s 20. Discrimination Act 1991 (ACT), s 21; Anti-Discrimination Act 2004 (NT), ss 38–39; Anti-­ Discrimination Act 1991 (Qld), ss 82–84; Anti-Discrimination Act 1998 (Tas), s 22(1)(d); Equal Opportunity Act 2010 (Vic), ss 52–57; Equal Opportunity Act 1984 (WA), ss 21–21A. Discrimination Act 1991 (ACT), s 22; Anti-Discrimination Act 2004 (NT), s 46; Anti-­ Discrimination Act 1991 (Qld), ss 94–95; Anti-Discrimination Act 1998 (Tas), s 22(1)(e); Equal ­Opportunity Act 2010 (Vic), ss 64–65; Equal Opportunity Act 1984 (WA), s 22. Sex Discrimination Act 1984 (Cth) s 37(1)(a)–(c). Sex Discrimination Act 1984 (Cth) ss 23(3)(b).

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is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’116 All States and Territories, irrespective of whether they prohibit religious ­discrimination or not, similarly provide some exceptions for religious bodies. The exceptions are generally for any ‘act or practice of a body established for religious purposes’ that either ‘conforms with the doctrines of religion’ or is ‘reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.’117 Most jurisdictions also have specific provisions that deal with religious schools that permit discrimination on the basis of sex and ­marital status, religion, or sexual orientation or gender identify, where it is consistent with religious doctrine. Of course, these provisions also differ depending upon the jurisdiction. The debate over those religious exceptions was considered by Expert Panel to review religious freedom in Australia. However, following the Expert Panel’s report, the Government asked the Australian Law Reform Commission to conduct a further Inquiry into the Framework of Religious Exemptions in Antidiscrimination Legislation.118 One of the key issues in that Inquiry will be the purported tension between religious freedom and LGBTI+ equality, which has become central to the public debate about religious freedom in Australia. 4

Current Issue: Religious Freedom and LGBTI+ Equality

Throughout the 2010s, the campaign for marriage equality, or same-sex marriage, in Australia gained momentum. Although opinion polls had indicated 116 Sex Discrimination Act 1984 (Cth), s 38. 117 See Sex Discrimination Act 1984 (Cth), s 37(d) (“any … act or practice of a body established for religious purposes”); Discrimination Act 1991 (ACT), s 32(d) (“any ... act or practice of a body established for religious purposes”); Anti-Discrimination Act 2004 (NT), s 51(d) (“an act by a body established for religious purposes”); Anti-Discrimination Act 1991 (Qld), s 109(1)(d) (“an act by a body established for religious purposes ); Equal Opportunity Act 1984 (SA), s 50(1) (“any ... practice of a body established for religious purposes’); Equal Opportunity Act 2010 (Vic), s 82(2) (“anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body”); Equal Opportunity Act 1984 (WA), s 72(d) (“any ... act or practice of a body established for religious purposes”). 118 “Terms of Reference: Review into the Framework of Religious Exemptions in Anti-­ discrimination Legislation,” Australian Law Reform Commission, last modified 10 April, 2019, https://www.alrc.gov.au/inquiry/review-into-the-framework-of-religious- ­exemptionsin-anti-discrimination-legislation/terms-of-reference/. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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a majority of Australians had supported marriage equality since 2007,119 in 2017 the Government took the unprecedented step of holding a plebiscite in the form of the Australian Marriage Law Postal Survey, a voluntary national survey that was held by post that asked whether the law should be changed to allow same-sex couples to marry.120 Although the survey and the debate it generated was unnecessary and divisive, achieving marriage equality was a unifying moment for Australia. This was reflected in the results of the Australian Marriage Law Postal Survey: of the eligible Australians who expressed a view on the question, the majority indicated that the law should be changed to allow same-sex couples to marry, with 7,817,247 (61.6%) responding Yes and 4,873,987 (38.4%) responding No.121 Nearly 8 out of 10 eligible Australians (79.5%) expressed their view.122 All states and territories recorded a majority Yes response.123 133 of the 150 Federal Electoral Divisions recorded a majority Yes response, with only 17 of the 150 Federal Electoral Divisions recording a majority No response.124 The No campaign was led by the Coalition for Marriage, a coalition of Christian organisations such as the Australian Christian Lobby, the Anglican Diocese of Sydney and Australian Baptist Ministries.125 One of the main arguments put forth by the Coalition for Marriage against marriage equality was the ‘impact that redefining marriage will have on the religious freedom of every day Australians.’126 Although this argument was largely specious, ensuring adequate protections for religious bodies that maintained that marriage can only be between a man and a woman was a key feature of Parliamentary debate about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).127 Indeed, it was in the context of this Parliamentary and public debate that the Prime Minister announced on 22 November 2017 the appointment of

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Mischa Schubert, “Public backs gay unions, equality,” The Age, 21 June, 2007, https://www .theage.com.au/national/public-backs-gay-unions-equality-20070621-ge56fu.html. 120 Australian Bureau of Statistics, Report on the conduct of the Australian Marriage Law Postal Survey 2017, (Canberra, Australian Bureau of Statistics Catalogue No 1800.0, 2017), 1. 121 “Australian Marriage Law Postal Survey, 2017, National Results,” Australian Bureau of Statistics, 30 January, 2018, https://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20 ­ Subject/1800.0~2017~Main%20Features~Results~1. 122 “Australian Marriage Law Postal Survey, 2017, National Results.” 123 “Australian Marriage Law Postal Survey, 2017, National Results.” 124 “Australian Marriage Law Postal Survey, 2017, National Results.” 125 “Partners,” Coalition for Marriage, last accessed 15 October 2021, https://www.coalitionformarriage.com.au/partners/. 126 “Freedom of religion,” Coalition for Marriage, last accessed 15 October 2021, https://www .coalitionformarriage.com.au/freedom_of_religion/. 127 Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 8. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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this Expert Panel to examine whether Australian law adequately protects the human right to freedom of religion.128 4.1 Religious Freedom and Marriage Equality Following the announcement of the results of the Australian Marriage Law Postal Survey on 15 November 2017, the Commonwealth Parliament moved promptly to pass Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Among other things, that Act amended the definition of marriage in s 5 of the Marriage Act 1961 to provide that marriage means ‘the union of two people to the exclusion of all other,’ rather than the previous definition that defined marriage as the ‘union of a man and a woman.’ Part of what made this Act historic and ground breaking was that it had widespread consensus; it was supported by political leaders from the Coalition, the Labor Party and the Greens, as well as LGBTI+ organisations and faith leaders.129 The Act achieved what LGBTI+ communities had been working for years: marriage equality, ‘a union of two people, to the exclusion of all others, voluntarily entered into for life.’ Importantly it did so in a way that respected people of faith and brought together a wide and diverse range of political viewpoints. This is reflected in the comfortable way it passed in both Houses of Parliament; it passed in the Senate 43 to 12 and then in House of Representatives where only four Members voted no.130 In the context of Australia’s marriage laws, it struck an appropriate ­balance between fairness and dignity for LGBTI+ people and religious freedom in First, it changed the definition of marriage from a union between ‘a man and a woman’ to a union between ‘two people.’131 This change was inclusive of all LGBTI+ people and relationships. The Act also recognised marriages of

128

The Religious Freedom Review Terms of Reference are set out in Ruddock et al, Religious Freedom Review: Report of the Expert Panel, iii. 129 Australian Marriage Equality, “Media Release: LGBTI Joint Statement welcoming the Senate Inquiry Report on the draft Marriage Act Amendment,” Australian Marriage Equality, 12 October, 2021, https://www.australianmarriageequality.org/2017/02/28/lgbtijoint-statement-welcoming-the-senate-inquiry-report-on-the-draft-marriage-act-amendment/. 130 Paul Karp, “Marriage equality law passes Australia’s parliament in landslide vote,” The Guardian, 7 December, 2017, https://www.theguardian.com/australia-news/2017/dec/07 /marriage-equality-law-passes-australias-parliament-in-landslide-vote. 131 Marriage Act 1961 (Cth), s 5.

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same-sex couples married overseas, including couples married before the Act came into effect.132 Second, the Act included exemptions to allow faith communities to ­celebrate marriages in accordance with religious beliefs, while ensuring that marriages performed by civil celebrants are conducted without discrimination. It ­confirmed that ministers of religion can continue to be allowed to refuse to perform marriages that do not conform to their religious doctrine or beliefs;133 for example, not to marry an LGBTI+ couple, a person from another faith or a divorcee. The Act also created a new category of ‘religious marriage celebrants’ for ministers of religion from small, independent and emerging churches not officially recognised religions.134 Similar to ministers of religion from recognised denominations, these religious celebrants are permitted to conduct marriages in accordance with their beliefs.135 The small number of civil celebrants who wish to continue to perform marriages in accordance with their religious beliefs, had a 90-day window to choose to be transferred into the new category of ‘religious marriage celebrant.’136 All other civil celebrants are required to uphold civil law and are not to discriminate against LGBTI+ couples. This new category of ‘religious marriage celebrants’ was not without controversy among LGBTI+ communities. however, it represented a practical, good faith compromise that respects religious freedom. Third, the Act introduced a new category of military officer to allow members of the Australian Defence Force – who previously could only be married by a military chaplain – a secular option.137 This ensured that LGBTI+ Defence Force members deployed overseas are also able to marry. Fourth, the Act replicated the religious exception already available for bodies established for religious purposes under the Sex Discrimination Act 1984 (Cth) to refuse to provide facilities, goods or services on a commercial or noncommercial basis for the purposes of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage where the refusal conforms to the body’s religious doctrine, tenets or beliefs, or is necessary to avoid injury to

132 133 134 135 136 137

The Act repealed ss 88B (4) and 88EA of the Marriage Act 1961 (Cth). These provisions, inserted in 2004 prohibited the recognition of marriage between same-sex couples solemnised in a foreign country. Marriage Act 1961 (Cth), s 47. Marriage Act 1961 (Cth), ss 39DA–39DE. Marriage Act 1961 (Cth), s 47A. Marriage Act 1961 (Cth), s 39DD. Marriage Act 1961 (Cth), s 71A.

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the religious susceptibilities of adherents of that religion.138 The Explanatory Memorandum to the Bill provided examples of how this exception applies: hires of church halls, premises or catering providers, owned by bodies established for religious purposes, would be able to lawfully refuse the use of the church hall or premises or to provide catering for both a wedding ceremony and a wedding reception. … a taxi driver, florist, baker or photographer who does not work for a body established for religious purposes cannot lawfully refuse to drive a person to a wedding reception, provide flowers, prepare a wedding cake or take photographs at a wedding ceremony on the basis of their religious or other beliefs about marriage.139 Although this exception was controversial amongst LGBTI+ ­communities, exceptions of this kind are an established part of discrimination law in ­Australia and marriage equality was not the appropriate legislative vehicle to alter religious exemptions (in much the same way it would have equally inappropriate for new provisions that discriminated against LGBTI+ people be inserted into Australian law through a marriage equality bill).140 However, the broader issue of religious exemptions like this across Australia’s discrimination laws were very much part of the deliberations of the Expert Panel to review religious freedom in Australia. 4.2 Religious Freedom Review The Expert Panel that conducted the Religious Freedom Review considered over 15,000 submissions, consulted with over 180 stakeholders, and evaluated a range of Australian laws and international treaty obligations.141 Father Frank Brennan SJ AO, who was one of the five members of the Expert Panel, observed that the Panel ‘incurred the wrath or displeasure of both ends of the spectrum on the issue of religious freedom because we did not think there were many

138 139 140

141

Marriage Act 1961 (Cth), s 47B. Explanatory Memorandum, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, 13. See, for example, the alternative marriage equality bill released by Senator James Paterson on 13 November 2017, the Marriage Amendment (Definition and Protection of Freedoms) Bill 2017: “Alternate Draft Bill for Marriage Equality and Religious Freedoms Released,” TimeBase, 14 November, 2017, https://www.timebase.com.au/news/2017/AT04482-article.html. Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 104.

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major issues.’142 Not only did the Expert Panel find that ‘Australians enjoy a high degree of religious freedom, and that basic protections are in place in Australian law,’143 but it was sceptical of the claims that religious freedom was at risk in contemporary Australia: The Panel heard repeatedly that religious adherence in Australia is at a critical juncture. Changing patterns of religious adherence, a loss of trust in mainstream institutions, and changing social mores are challenging the traditional role that religion has played in Australian society … The Panel did not accept the argument, put by some, that religious freedom is in imminent peril, it did accept that the protection of difference with respect to belief or faith in a democratic, pluralist country such as ­Australia requires constant vigilance.144 As such, the Expert Panel made 20 relatively modest recommendations to ­further enhance the protection of freedom of religion in Australia, both through legislative amendments to Commonwealth, state and territory laws, and through non-legislative measures.145 The Expert Panel made several recommendations relating to the importance of ensuring that the right to religious freedom is given appropriate weight in situations where it is in tension with other public policy considerations,146 including a recommendation that jurisdictions that retain exceptions in anti-discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations.147 The Expert Panel also recommended that the jurisdictions that do not currently make it unlawful to discriminate on the basis of religious belief or activity (the ­Commonwealth, New South Wales and South Australia) consider legislative reform to include religion as a protected attribute in their discrimination laws.148 142 143 144 145 146 147 148

Fr Frank Brennan, “Do we need new laws to protect religious freedom in Australia?” ABC Religion & Ethics, 20 February, 2020, https://www.abc.net.au/religion/frank-brennan-­dowe-need-new-laws-to-protect-religious-freedom/11984926. Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 104. Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 8. Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 104–108. See Recommendations 1–3: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 34–47. See Recommendation 1: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 34–47. See Recommendations 15–16 of the Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 91–96.

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Several recommendations of the Expert Panel related to schools in the ­context of employment, enrolment of students and moral education.149 There were also recommendations that sought clarify a few aspects of religious freedom relating to the introduction of marriage equality in Australia.150 The Expert Panel also recommendation that the jurisdictions that have not abolished the statutory or common law offences of blasphemy should do so.151 Finally, the Expert Panel made recommendations relating to additional research into the community experience of religious freedom, the development a religious engagement and public education program about human rights and religion in Australia, the Australian Human Rights Commission and the need for the Commonwealth to work with the States and Territories to implement the recommendations of the Panel.152 The Government’s response to the Religious Freedom Review: Report of the Expert Panel accepted either directly or in principle 15 of the 20 recommendations.153 The remaining five recommendations related to exceptions for religious bodies in discrimination laws, principally in the context of religious schools.154 Given ‘the complexity of the issues surrounding the framework of exemptions for religious bodies in anti-discrimination law in all Australian jurisdictions,’155 these recommendations have been referred to the Australian Law Reform Commission as part of its further Inquiry into the Framework of Religious Exemptions in Anti-discrimination Legislation.156 The Report of the Expert Panel was submitted to Prime Minister Malcolm Turnbull on 18 May 2018. It took seven months before the Report and the Government response was released on 13 December 2018, by which time Scott Morrison was Prime Minister of Australia. Almost two years later, the Government 149

See Recommendations 5–9: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 56–75. 150 See Recommendations 4, 10–12: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 50–55, 76–82. 151 See Recommendations 13–14: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 84–89. 152 See Recommendations 17–20: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 97–103, 107–108. 153 “Australian Government response to the Religious Freedom Review,” Attorney-General’s Department, last modified 13 December, 2018, https://www.ag.gov.au/sites/default /files/2020-03/Response-religious-freedom-2018.pdf, 5. 154 Recommendations 1, 5–8: Ruddock et al, Religious Freedom Review: Report of the Expert Panel, 34–46, 56–69. 155 “Australian Government response to the Religious Freedom Review,” 5. 156 “Terms of Reference: Review into the Framework of Religious Exemptions in Anti-discrimination Legislation,” Australian Law Reform Commission, 10 April, 2019, https:// www.alrc.gov.au/inquiry/review-into-the-framework-of-religious-exemptions-in-anti-discrimination-legislation/terms-of-reference/.

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is yet to pass legislation to give effect to the Report’s recommendations or otherwise strengthen religious freedom in Australia. The Government has, however, released two exposure drafts of a package of legislation on religious freedom.157 Both of these exposure drafts were strongly criticised by Commonwealth, State and Territory human rights commissions, legal experts, business groups, and religious groups as they went significantly further than the recommendations of the Expert Panel and would have overridden long standing Commonwealth, State and Territory discrimination laws and privileged religious views over the rights and interests of other Australians.158 In November 2021 the Morrison Government introduced the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021 to ostensibly protect religious freedom. However this package of legislation contained many of the same flaws as the first two exposure drafts and was widely criticised before ultimately being shelved by Government. In May 2022, Anthony Albanese and the Labor Party won the federal election and formed Government. Labor has indicated it will introduce legislation prohibiting discrimination on the grounds of their religious belief but has not provided a timeframe. 4.3 What Is Next? The legislative reforms recommended by the Expert Panel reveal that there is strong support for religion to be covered as a protected attribute in all of Australia’s discrimination laws. Currently the Commonwealth, together with New South Wales and South Australia, do not prohibit discrimination based on religion or belief. As Evans notes, there are ‘relatively few justifications for a complete failure to protect individuals from discrimination based on religion’ and that the ‘protection of individuals against discrimination of this kind is one of the clearest elements of international human rights law relating to religious freedom.’159 This gap in the current law means that individuals can face discrimination on 157

“Religious Freedom Bills – First Exposure Drafts”, Attorney-General’s Department, last modified 10 December 2019, https://www.ag.gov.au/rights-and-protections/consultations/religious-freedom-bills-first-exposure-drafts and Religious Freedom Bills – Second Exposure Drafts”, Attorney-General’s Department, last modified 31 January 2020, https:// www.ag.gov.au/rights-and-protections/consultations/religious-freedom-bills-second-exposure-drafts. 158 “Submissions received for the Religious Freedom Bills – second exposure drafts consultation,” Attorney-General’s Department, last modified 3 March 2020, https://www .ag.gov.au/rights-and-protections/publications/submissions-received-religious-freedom-bills-second-exposure-drafts-consultation. 159 Evans, Legal Protection of Religious Freedom in Australia, 167.

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the basis of religion (outside of the employment context) without legal recourse. It also means that people in some parts of Australia have greater protection than others (as some people who are discriminated against will have a remedy under their State or Territory law, while others will not). Strengthening religious freedom in Australia by making it unlawful to discriminate on the basis of a person’s ‘religious belief or activity,’ including that a person does not hold any religious belief, would be a welcome addition to Australia’s discrimination law framework consistent with Australia’s international obligations. There is not, however, broad public consensus for additional exceptions to Australia’s discrimination laws for religious bodies or for other amendments that privilege religious views over the rights and interests of other Australians. As such, it is likely that in the months and years ahead, the debate over additional changes to Australia’s discrimination laws will focus on several areas. First, whether religious organisations, such as schools, hospitals, aged care services, accommodation providers and possibly even corporations associated with religious people, need additional or expanded exceptions that would allow them to discriminate on the basis of sexual orientation, gender identity or relationship status where the discrimination is founded in the precepts of the religion.160 Second, whether health practitioners should be given greater protection to refuse treatment to patients on the basis of conscientious objection.161 Third, whether large employers should be able to take action against employees for expressing their religious beliefs in a private capacity, unless the employer can demonstrate the expression would cause unjustifiable financial hardship to their business.162 This is the so-called ‘Folau clause’ that was first proposed following Rugby Australia’s controversial decision to terminate Israel Folau’s contract over social media posts claiming that homosexuals, adulterers, atheists and other ‘sinners’ would go to hell.163 Given our concurrent Commonwealth and State or Territory discrimination laws, a new question is, should the Commonwealth legislate to provide that statements of belief made in good faith will not constitute discrimination under any discrimination law unless the statement is malicious, likely to harass, threaten, seriously intimidate or vilify, or advocates for the commission of a serious criminal offence?164 The effect of such a provision would be that statements of religious belief made in good faith 160 See, for example, clauses 11, 32 and 33 of the Religious Discrimination Bill Second ­Exposure  Draft. 161 See, for example, clauses 8 and 32 of the Religious Discrimination Bill Second Exposure Draft. 162 See, for example, clause 8 the Religious Discrimination Bill Second Exposure Draft. 163 Michael Koziol, “Liberal MP s want ‘Folau’s law’ removed from Religious Discrimination Bill,” The Sydney Morning Herald, 25 July, 2021, https://www.smh.com.au/politics/federal/liberalmps-want-folau-s-law-removed-from-religious-discrimination-bill-20210722-p58c25.html. 164 See, for example, clause 42 the Religious Discrimination Bill Second Exposure Draft. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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that offend, humiliate, insult or intimidate LGBTI+ people, women, or people with a disability would be lawful, no matter what State or Territory laws provide. The problem with all these potential areas of reform in the name of religious freedom is that they would carve out significant new exceptions that privilege religious views over the rights and interests of other Australians, especially LGBTI+ Australians. This is hard to justify when the Government’s own Expert Panel considered that religious freedom was already well protected under Australian law. Such an approach is also difficult to countenance when amendments of this sort would have the effect of making workplaces, schools, hospitals, aged care services less welcoming and more hostile places for many Australians, increasing barriers to their equal participation in s­ ociety– ­especially when religious schools, hospitals and aged care service providers receive substantial amounts of public funding each year. In 2017, the A ­ ustralian Marriage Law Postal Survey saw the Australian people vote overwhelmingly for fairness and equality for LGBTI+ people in a modern, secular society. 5 Conclusion Although the religious landscape of Australia has changed markedly over the past few decades, religious freedom is generally well protected under Australian law, including under the Constitution, State or Territory statutory human rights charters, and discriminations laws. Religious freedom could be enhanced in Australia by ensuring religion is a protected attribute in all of Australia’s discrimination laws. The Commonwealth and the States or Territories without a statutory human rights charter could also further protect religious freedom under law as part of a comprehensive charter of rights that protects and balances all fundamental human rights. However, any additional reforms that would privilege religious belief and activity over other beliefs and activities should be scrutinised carefully as they are likely to be incompatible with contemporary Australian values. Bibliography Books Beck, Luke. Religious Freedom and the Australian Constitution: Origins and Future. ­London: Routledge, 2018). Beck, Luke. Australian Constitutional Law: Concepts and Cases. Cambridge: Cambridge University Press, 2020. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Ely, Richard. Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891–1906. Melbourne: Melbourne University Press, 1976. Evans, Carolyn. Legal Protection of Religious Freedom in Australia. Sydney: The Federation Press, 2012. Mikhailovich, Katja, and Alexandra Pavli. Freedom of Religion, Belief and Indigenous Spirituality, Practice and Cultural Rights. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 2011. O’Farrell, Patrick. The Catholic Church and Community in Australia: A History. ­Melbourne: Nelson, 1977. Reynolds, Daniel, and George Williams. A Charter of Rights for Australia. 4th ed. ­Sydney: UNSW Press, 2017.



Journal Articles

Beck, Luke. “The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study.” Adelaide Law Review 35 (2014): 225–250. Joseph, Sarah. “Kruger v The Commonwealth: Constitutional Rights and the Stolen ­Generations.” Monash University Law Review 24, no. 2 (1998): 486–498. Malaspinas et al., Anna-Sapfo. “Genomic history of Aboriginal Australia.” Nature 538 (2016): 207–214, https://doi.org/10.1038/nature18299. McLeish, Stephen. “Making Sense of Religion and the Constitution: A Fresh Start for s 116.” Monash University Law Review 18, no. 2 (1992): 207–236. Puls, Joshua. “The Wall Separation: Section 116, the First Amendment and Constitutional Religious Guarantees.” Federal Law Review 139 (1998): 139–164. Sadurski, Wojciech. “On Legal Definitions of Religion.” Australian Law Journal 63 (1989): 834–834. Sadurski, Wojciech. “Neutrality of Law Towards Religion.” Sydney Law Review 12 (1989): 420–454. Zimmermann, Augusto. “Constituting a ‘Christian Commonwealth’: Christian Foundations of Australia’s Constitutionalism.” The West Australian Jurist 5 (2014): 123–152.

Newspapers “Alternate Draft Bill for Marriage Equality and Religious Freedoms Released,” TimeBase, November 14, 2017, https://www.timebase.com.au/news/2017/AT04482-article.html. Baker Nick, and Teresa Tan. “Do Australians trust religious leaders?” ABC News Online, June 13, 2021, https://www.abc.net.au/news/2021-06-13/austraila-talks-trust-­religiousfigures-dropping-covid-pandemic/100202940.

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Brennan, Fr Frank. “Do we need new laws to protect religious freedom in Australia?” ABC Religion & Ethics, February 20, 2020, https://www.abc.net.au/religion/frankbrennan-do-we-need-new-laws-to-protect-religious-freedom/11984926. Karp, Paul. “Marriage equality law passes Australia’s parliament in landslide vote.” The Guardian, December 7, 2017, https://www.theguardian.com/australia-news/2017 /dec/07/marriage-equality-law-passes-australias-parliament-in-landslide-vote. Koziol, Michael. “Liberal MP s want ‘Folau’s law’ removed from Religious Discrimination Bill.” The Sydney Morning Herald, July 25, 2021, https://www.smh.com.au /politics/federal/liberal-mps-want-folau-s-law-removed-from-religious-discrimination-bill-20210722-p58c25.html. Lee, Jane. “The dog fight over school funding that went all the way to the High Court.” ABC News Online, May 12, 2020, https://www.abc.net.au/news/2020-05-12/the-history-listen-the-forgotten-fight-over-school-funding-dogs/12101774. Schubert, Mischa. “Public backs gay unions, equality.” The Age, June 21, 2007, https:// www.theage.com.au/national/public-backs-gay-unions-equality-20070621-ge56fu .html.

Reports Australian Bureau of Statistics (ABS). Year Book Australia No 88 2006. Canberra: ­Australian Bureau of Statistics Catalogue No 1301.0, 2006. Australian Bureau of Statistics (ABS). 2016 Census Data Summary: Religion in Australia. Canberra, Australian Bureau of Statistics Catalogue No 2071.0, 2017). Australian Bureau of Statistics. Report on the conduct of the Australian Marriage Law Postal Survey 2017. Canberra, Australian Bureau of Statistics Catalogue No 1800.0, 2017. Australian Bureau of Statistics, “Australian Marriage Law Postal Survey, 2017, National Results.” 30 January, 2018, https://www.abs.gov.au/ausstats/[email protected]/Lookup /by%20Subject/1800.0~2017~Main%20Features~Results~1. Joint Standing Committee on Foreign Affairs, Defence and Trade. Conviction with ­Compassion: A Report on Freedom of Religion and Belief. Canberra: The Parliament of the Commonwealth of Australia, 2000. LGBTI+ means Lesbian, Gay, Bisexual, Trans, Intersex, Queer, Sistergirl and Brotherboy people and other sexuality, sex and gender diverse people. Prime Minister of Australia. “Media Release: Government response to the Religious Freedom Review.” Department of Prime Minister and Cabinet, 13 December, 2018, https://www.pm.gov.au/media/government-response-religious-freedom-review. Ruddock, Philip et al. Religious Freedom Review: Report of the Expert Panel. Canberra: Australian Government – Department of Prime Minister and Cabinet, 2018.

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Cases Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116. Attorney-General (Vic) ex rel Black v Commonwealth (“DOGS Case”) (1981) 146 CLR 559. Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (‘Scientology Case’) (1983) 154 CLR 120. Corneloup v Launceston City Council [2016] FCA 974, [38]. Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156. King-Ansell v Police [1979] 2 NZLR 531. Kruger v Commonwealth (‘Stolen Generations Case’) (1997) 190 CLR 1. Lamshed v Lake (1958) 99 CLR 132. Mabo v Queensland (No 2) (1992) 175 CLR 1. Mandla v Dowell Lee [1983] 2 AC 548; Miller v Wertheim [2002] FCAFC 156. Krygger v Williams (1912) 15 CLR p. 366. R v Winneke; Ex parte Gallagher (1982) 152 CLR 211. Rutherford & Ors v Hume CC [2014] VCAT 786. Williams v Commonwealth (No 1 ) (‘School Chaplains Case’) (2012) 248 CLR 156.

Acts Anti-Discrimination Act 1977 (NSW). Anti-Discrimination Act 2004 (NT). Anti-Discrimination Act 1991 (Qld). Anti-Discrimination Act 1998 (Tas). Australian Human Rights Commission Act 1986 (Cth). Australian Human Rights Commission Submission to the Expert Panel, Religious Freedom Review (February 2018). Charter of Human Rights and Responsibilities 2006 (Vic). Constitution Alteration Bill 1944 (Cth). Constitutional Alteration (Rights and Freedoms) Bill 1988 (Cth). Discrimination Act 1991 (ACT). Discrimination Act 1991 (Qld). Equal Opportunity Act 1984 (SA). Equal Opportunity Act 2010 (Vic). Equal Opportunity Act 1984 (WA). Explanatory Memorandum, Marriage Amendment (Definition and Religious ­Freedoms) Bill 2017. Human Rights Act 2004 (ACT). Human Rights Act 2019 (Qld).

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Human Rights and Equal Opportunity Commission Act 1986 (Cth) – Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion or Belief, 8 February 1993. International Labour Organization Convention (No 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958. Marriage Act 1961 (Cth). Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Sex Discrimination Act 1984 (Cth). The Marriage Amendment (Definition and Protection of Freedoms) Bill 2017. The Racial Discrimination Act 1975 (Cth).

Websites Australian Marriage Equality. “Media Release: LGBTI Joint Statement welcoming the Senate Inquiry Report on the draft Marriage Act Amendment.” Australian Marriage Equality, 12 October, 2021, https://www.australianmarriageequality.org/2017/02/28 /lgbti-joint-statement-welcoming-the-senate-inquiry-report-on-the-draft-mar riage-act-amendment/. “Australian Government response to the Religious Freedom Review.” Attorney-­ General’s Department, last modified December 13, 2018, https://www.ag.gov.au /sites/default/files/2020-03/Response-religious-freedom-2018.pdf, 5. “Freedom of religion.” Coalition for Marriage, last accessed October 15, 2021, https:// www.coalitionformarriage.com.au/freedom_of_religion/. “Partners.” Coalition for Marriage, last accessed October 15, 2021, https://www.coalitionformarriage.com.au/partners/. “Religious Freedom Bills – First Exposure Drafts.” Attorney-General’s Department, last modified December 10, 2019, https://www.ag.gov.au/rights-and-protections/consultations/religious-freedom-bills-first-exposure-drafts and Religious Freedom Bills – Second Exposure Drafts”, Attorney-General’s Department, last modified January 31, 2020, https://www.ag.gov.au/rights-and-protections/consultations/religious-free dom-bills-second-exposure-drafts. “Submissions received for the Religious Freedom Bills – second exposure drafts consultation.” Attorney-General’s Department, last modified March 3, 2020, https:// www.ag.gov.au/rights-and-protections/publications/submissions-received-reli gious-freedom-bills-second-exposure-drafts-consultation. “Terms of Reference: Review into the Framework of Religious Exemptions in Antidiscrimination Legislation.” Australian Law Reform Commission, April 10, 2019, https://www.alrc.gov.au/inquiry/review-into-the-framework-of-religious-exemp tions-in-anti-discrimination-legislation/terms-of-reference/.

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“The shrinking proportion of religious Australians.” Roy Morgan, September 14, 2021, http://www.roymorgan.com/findings/8664-religion-in-australia-march-2020202103220545. Trounson, Andrew. “Losing Our Religion.” The University of Melbourne, November 20, 2020, https://pursuit.unimelb.edu.au/articles/losing-our-religion. Williams, George and Daniel Reynolds. “How a charter of rights could protect ­Australians’ fundamental freedoms.” The Conversation, August 7, 2017, https://­ theconversation.com/how-a-charter-of-rights-could-protect-australians-fundamental-freedoms-81947.

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CHAPTER 12

Religious Freedom in India and the Impact of Hindutva on Religious Minorities Md Jahid Hossain Bhuiyan 1 Introduction India – the world’s largest secular democracy – is characterised by religious diversity. Although most people are Hindus, minority groups of Muslims, Sikhs, Christians, Buddhists, and Jains also exist. The current population totals approximately 1.3 billion. The national census of 2011 indicates that 79.8 per cent are Hindus, 14.23 per cent Muslims, 2.3 per cent Christians, and 1.72 per cent Sikhs. Less than 2 per cent are Baha’is, Buddhists, Jains, Jews, and Zoroastrians (Parsis).1 When British rule ended, and the Partition occured, the newlyindependent Pakistan was a secular country from 1947–1955 and later became an Islamic republic in 1956. On the other hand, the newly-independent India heartened Muslims by declaring India did not intend to be a Hindu rashtra (Hindu state). To rise above religious identities, the new leaders advocated a secular national identity, discarding ‘communalism’. This initiated a fluctuation between Mahatma Gandhi’s sarvadharma samabhava (equal respect for all religions) and Jawaharlal Nehru’s dharma nirapekshata (religious neutrality).2 Gandhi considered sincere religion a personal matter, believing that its honourable, total, and genuine attributes unite people.3 Therefore, from the beginning, religious freedom was deemed invaluable. The framers of the Constitution of India expected freedom of worship, faith, and belief to encourage comradeship and promote equality. If understanding and unanimity are to be

1 “Religious Census 2011,” March 9, 2022, https://www.census2011.co.in/religion.php accessed. 2 Ronojoy Sen, “Secularism and Religious Freedom,” in The Oxford Handbook of the Indian ­Constitution, eds. Sujitt Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (Oxford: Oxford University Press, 2016): 885–902, 902; Cecile Laborde, “Minimal Secularism: Lessons for, and from, India,” American Political Science Review 115 (2021): 2. 3 Mahatma Gandhi, All Men are Brothers: Autobiographical Reflections, ed. Krishna Kripalani (New York: Continuum, 1980), 54. © Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004449961_013 Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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generated, and sectarianism restrained, people should be free to enjoy the constitutionally guaranteed fundamental rights.4 Historical awareness of religious diversity in India, where all religions coexist, meant secularism should respect every religion. Consequently, religious minorities were assured by India’s new leaders that they would not be considered second-class citizens. The current Indian Constitution protects ‘secularism’ as a grundnorm and basic value.5 Despite considerable political disruption, secularism as a basic value has clearly been evident since 1976. The nation still feels the impact of religious ethnic cleansing after independence on 14–15 August 1947. Those drafting the Constitution committed themselves to an inclusive society which ensures equality before law.6 However, in practice, the hegemonic paternalism of assertive religious groups means they are instead establishing their own traditions and practices. These differ from the West, and the Indian Constitution guaranteed marginalised people to ensure their rights. As a result, fundamentalist groups – political entities with ethnic and religious backgrounds –have gained influence, harbouring powerful communitarian emotions and fostering sectarian identities. Disputes between majority and minority communities in numerous locations have recently erupted in India. These have raised the political issue of protecting the identity and rights of minority groups.7 Although the Congress Party has long promoted secularism, the Bharatiya Janta Party (BJP), composed of Hindu nationalists, has challenged this. The BJP criticise communalist policies which favour minorities, which they regard as ‘pseudo-secularism’. The BJP’s electoral success during the early 1990s was driven by two events: the demolition of the Babri Masjid on 6 December 1992 and state-sponsored violence in 2002 in Gujarat, perceived by Anuradha Dingwaney Needham and Rajeswari Sunder Rajan as the most significant and recent secularism ‘crisis’.8 4 Faizan Mustafa and Jagteshwar Singh Sohi, “Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy,” Brigham Young University Law Review 4 (2017): 920. 5 With the 42nd Amendment to the Constitution of India enacted in 1976, the word ‘secular’ was inserted in the Preamble to the Constitution. 6 Laborde, “Minimal Secularism,” 2 and Werner Menski, Comparative Law in Global Context: The Legal Systems of Asia and Africa, 2nd ed., (Cambridge: Cambridge University Press, 2009), 251. 7 Saika Sabir, “Constitutional Rights of Minorities: A Critical Analysis,” (Bengaluru: Centre for Study of Social Exclusion and Inclusive Policy, National Law School of India University), 2–3, accessed February 28, 2022, https://dom.karnataka.gov.in/storage/pdf-files/Sir%20Syed%20 Ahmed%20Khan/CONSTITUTIONAL%20RIGHTS%20OF%20MINORITIES%20-%20 by%20Saika%20Sabir.pdf. 8 Anuradha Dingwaney Needham and Rajeswari Sunder Rajan, The Crisis of Secularism in India (Durham, NC: Duke University Press, 2007), 31.

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The COVID-19 outbreak prompted India’s Hindutva inspired BJP-led government to focus on religious divisions, aggravating Hindu nationalism. The current health problem has been securitised in India’s COVID-19 response, transforming it into a Muslim-led narrative that opposes Indian Hindus. Hindu nationalists have used hate speech against Indian Muslims to promote antiMuslim sentiments. This discourse is gaining traction in the mainstream and on social media. Consequently, religious or communal prejudice and violence against Muslims, Islamophobia, and hate crimes, are increasing.9 While referring to Hindutva, this chapter addresses constitutional provisions regarding the freedom of religion and secularism. Hindutva weakens secular and religious freedom and repudiates religious minorities’ rights within the context of COVID-19.10 2 Constitutional Provisions on Freedom of Religion, Equality of Citizenship, and State Intervention in Religious Affairs in India 2.1 Freedom of Religion Articles 25–28 of the Indian Constitution emphasise religious freedom, whereas Article 25(1) stipulates the rights of everyone to ‘profess, practice and propagate’ their religion. It also assures freedom of conscience, ­intimating the entitlement to practise any religion or belief according to conscience and prudence,11 as well as giving freedom to persons with no religion.12 ­Nevertheless, this freedom is dependent on ‘public order, morality, and health’ and other fundamental rights. Article 26 ensures freedom to manage religious affairs and stipulates that every religious organisation and its constituent parts shall have the following rights ‘subject to public order, morality, and health’: to (a) set up and maintain religious and charitable institutions; (b) govern its own religious affairs; (c) obtain and own property, movable or immovable; and (d) manage this according to legal requirements. Article 27 states taxes used to sponsor or sustain any religious group should be voluntary. Moreover, Article 9 10 11 12

Fahad Nabeel and Maryam Raashed, “The Hindutva Aspect of COVID-19 Outbreaks in India Authors,” Perspectives 11 (June 10, 2020), 1, accessed March 5, 2022, https://cscr.pk /pdf/perspectives/The-Hindutva-Aspect-of-COVID-19-Outbreak-in-India.pdf. See Black, chapter 3 of this book. M. Afzal Wani, “Freedom of Conscience: Constitutional Foundations and Limits,” Journal of Indian Law Institute 42, no. 2/4 (2004): 289. Rajeev Bhargava, “India’s Secular Constitution,” in India’s Living Constitution: Ideas, ­Practices, Controversies, eds. Zoya Hasan, E. Sridharan and R. Sudarshan, 2nd impression (Delhi: Permanent Black, 2006), 111.

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28(1) stipulates that state-financed educational establishments shall not provide religious instruction. However, Article 28(2) states this is not applicable where an establishment is financed by a trust or endowment which requires it to provide religious instruction. According to Article 28(3), no attendee shall be compelled to participate in religious worship in a state-supported educational establishment except where they, or (if minors) their guardian, have consented to this. The Indian Supreme Court, in Sardar Syedna Taher Saifuddin Sahed v. State of Bombay,13 ruled that religious toleration has been a perpetual factor in India due to Articles 25 and 26. However, temporary anomalies sometimes mean this requirement is not followed. This highlights the secular character of Indian democracy, which was regarded by the nation’s founders as the core of the Constitution.14 One of the principal components of liberalism is toleration,15 a word ­originating from the Latin word tolerare, meaning to suffer or to endure. This indicates non-intervention or the conditional acknowledgement regarding beliefs or practices which, although erroneous, are nonetheless ‘tolerable’. Therefore, they should not be restricted or forbidden.16 In the 1600s, Pierre Bayle and John Locke argued that most religious differences ought to be ­tolerated.17 However, certain contemporary political philosophers contend that it is inadequate simply to ‘tolerate’ religious differences. For example, Martha C Nussbaum proposes extending tolerance to equal respect,18 as this is directly connected to the concept of dignity, being belief in the value of humanity.19 According to Nussbaum, certain religious exemptions from ­neutral laws that hinder religious practice are constitutionally necessary.20 However, John Horton suggests mutual tolerance is the optimal hope for 13 14 15

AIR 1962 SC 853 (India). Ibid, 871. John Stuart Mill, On Liberty and Other Essays John Gray ed, (Oxford: Oxford University Press, 1991) and John Rawls, Political Liberalism, expanded edn. (Columbia: Columbia ­University Press, 2005). 16 Rainer Forst, “Toleration and its Paradoxes: A Tribute to John Horton,” Philosophia 45 (2017): 416–418. 17 John Locke, A Letter Concerning Toleration, ed. James Tully (Indianapolis: Hackett, 1983) and Pierre Bayle, Philosophical Commentary on the Words of Jesus Christ, Compel Them to Come in, ed., and tr. Amie Godman Tannenbaum (New York: Peter Lang, 1987). 18 Martha C Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2010). 19 Martha C. Nussbaum, “Perfectionist Liberalism and Political Liberalism,” Philosophy & Public Affairs 39, no. 1 (2011): 3–45, 18. 20 Nussbaum, Liberty of Conscience, 24.

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current pluralistic societies where belligerence and animosity exist.21 This can be a political practice applied to citizens or a moral virtue depicted in interpersonal relationships.22 The Israeli Supreme Court recognises mutual tolerance as an interpersonal moral virtue is essential for a democratic and free society.23 By contrast, the Supreme Court of the US describes tolerance as a state practice when stipulating that the Free Exercise Clause commits the government to religious tolerance. Officials must abide by the Constitution in cases where state intervention originates from hostility to religion or mistrust of religious practices. To ensure the reasons for enforcing the law and various regulations are secular, officials must withstand tenacious demands. It is not permissible for legislators to design clear or hidden mechanisms to persecute any religion or its practices.24 The Indian Supreme Court in SR Bommai v. Union of India25 held religious tolerance to be a necessary component of secularism.26 However, in Dara Singh v Republic of India,27 the Court ruled that the state should equally respect every religion.28 The Court ruled in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat29 that equal respect for every sect and community, as well as tolerance and diversity, are necessary for national unity. The Court also indicated that the wisdom of the country’s founders meant India’s Constitution was secular, thereby accommodating considerable diversity.30 2.2 Equality of Citizenship Article 15(1) provides that the state cannot discriminate on the basis of race, place of birth, gender, caste, or ethnicity. Similarly, Article 16(2) affirms no one shall suffer discrimination or ineligibility regarding employment by the state. Moreover, according to Article 29(2), ethnicity, caste, religion or language cannot be grounds for refusing to admit anyone to a state-supported educational establishment. Additionally, Article 325 stipulates that no one is ineligible for inclusion on a special electoral roll. According to Article 30(1), whether 21 22 23 24 25 26 27 28 29 30

John Horton, “Why the Traditional Conception of Toleration Still Matters,” Critical Review of International Social and Political Philosophy 14, no. 3 (2011): 292–294 and 299–302. Reiner Forst, “The Limits of Toleration,” Constellations 11, no. 3 (2004): 315. Universal City Studios Inc v. Films and Plays Censorship Board, HCJ 806/88 (June 15, 1989), para 7 (Israel). Church of the Lukumi Babalu Aye, Inc v. Hialeah, 508 US 520 (1993), 547. (1994) 3 SCC 1 (India). Ibid, 147–148 (Justice P.B. Sawant and Justice Kuldip Singh). (2011) 2 SCC 490 (India). Ibid, 531. (2008) 5 SCC 33 (India). Ibid, 50.

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based on language or religion, every minority can freely open and manage an educational establishment. Thus, this article accepts group rights. Article 30(2) stipulates that in financing educational establishments, the state cannot discriminate when these are managed by a minority (based on religion or language). The rejection of separate electorates means the rights guaranteed under Article 30 are essential for a democratic country. The purpose of incorporating such rights is also evident in Constituent Assembly debates. Although the majority-minority structure depends on assimilation, members of the Constituent Assembly believed minorities must be dissolved into the majority fairly. Minorities may assume ‘fanatical nationalism’ without this ­fundamental justice.31 2.3 State Intervention in Religious Affairs Article 17 aims to eliminate untouchability (meaning the condition or quality of being untouchable to low caste persons or to persons excluded from the caste system) low caste by prohibiting its practice, stipulating that the offence of enforcing any disability caused by untouchability shall be legally punishable. According to Article 25(2)(b), the operation of any current law shall not be impacted by Article 25(1), neither shall Article 25(1) prevent the state from enacting a law associated with reform and social welfare or of instituting public Hindu religious establishments for all Hindus. Consequently, the state will need to intervene in religious affairs according to Articles 17 and 25. But do Articles 17 and 25(2) breach Articles 15(1) and 26, and eliminate the religious freedom given by Article 25(1)? The Hindu Bigamous Marriages Act, 1946, and Hindu Marriage Act, 1955, for example, stipulate that Hindus must be monogamous, but these acts do not apply to Muslims. According to Rajeev Bhargava, such interference infringes secularism only if separation is interpreted as indicating poorly understood neutrality or exclusion. He claims that separation does not mean equidistance or exclusion, but ‘principled distance’, and does not compromise secularism.32 This is certainly ‘interventionist, contextual, and instrumental’, given that the state decides whether to interfere, in promoting ‘equality of citizenship’ and ‘religious liberty’.33 Bhargava asserts the

31 32 33

See Bhargava, “India’s Secular Constitution,” 123. Ibid, 115–116. Rajeev Bhargava, “What is Secularism for?” in Secularism and its Critics, ed. Rajeev ­Bhargava (Delhi: Oxford University Press, 1998), 515. See also Jaclyn L. Neo, “Regulation of Religious Communities in a Multicultural Polity,” in Oxford Handbook on Law and ­Religion, ed. Rex Ahdar (Cheltenham: Edward Elgar, 2018), 195.

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state cannot eliminate secularism if it interferes in one religion more than in others.34 Amartya Sen uses the term ‘equidistance’ to describe the relationship between the state and religious faiths. He asserts that the state must treat different religions and their members in a fundamental symmetrical manner. Thus, it is not a breach of secularism for a state to preserve everyone’s freedom to worship as they like, even if the state must act with – and for – religious communities to achieve this.35 Sen therefore favours symmetry over isolation, which has been the dominant Indian viewpoint since Independence, until Hindu Nationalism’s political success and rising influence in society. If the state can give religious freedom while cooperating with diverse religious communities, it is no less secular, providing symmetry and equidistance are maintained.36 In the Indian context, secularism defines an ‘equidistant’ stance to every religion, in which law and religion are not completely separated. The inevitably interconnected character of law and religion is increasingly recognised within the country. 3

Impact of Hindutva on Religious Minorities in the COVID-19 Era

3.1 Religious Discrimination against Muslims during the COVID-19 Pandemic in India Approximately 3,500 overseas Muslims arrived in India in March 2020 to attend the Tablighi Jamaat (Society of Preachers) event at Nizamuddin Markaz, a mosque in Delhi. The Tablighi Jamaat, one of the biggest global religious groups, is a Muslim missionary organisation that attracts millions of followers from worldwide. However, on 24 March 2020, the Indian Prime Minister, Narendra Modi, announced a national lockdown to stem the spread of COVID-19, meaning those who had travelled from overseas were trapped in India and had fewer than four hours to make alternative arrangements.37 34 35 36 37

Bhargava, “India’s Secular Constitution,” 117. Amartya Sen, The Argumentative Indian: Writings on Indian History, Culture and Identity (London: Penguin Books, 2005), 296. Gino Battaglia, “Neo-Hindu Fundamentalism Challenging the Secular and Pluralistic Indian State,” Religions 8, no. 216 (2017): 3. Sukanya Shantha and Mukul Singh Chauhan, “Tablighi Jamaat: A Year on, Some Attendees Still Await Trial, Others Struggle To Return Home,” The Wire, March 9, 2021, https://thewire. in/rights/tablighi-jamaat-one-year-trial-struggle-return-home-covid-19-legal-action and Jeffrey Gettleman, Kai Schutlz and Suhasini Raj, “In India, Coronavirus Fans ­Religious

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The situation was compounded by the fact that many foreign n ­ ationals had travelled to other parts of India where more limited gatherings were being held at local mosques. Consequently, they were accused of being “superspreaders” by the police and charged with disobeying government rules under provisions of the Epidemic Diseases Act, 1897, the Indian Penal Code, 1860, Foreigners Act, 1946, and the National Disaster Management Act, 2005. In certain states, some were charged with ‘attempt to murder’.38 There was notable variation, however, in how states responded. In Uttar Pradesh, Jharkhand, Karnataka, Maharashtra, and Tamil Nadu, they were committed to prison. Conversely, approximately 960 foreign nationals in Delhi were detained for months in quarantine centres.39 It was, however, impossible for most states to secure a conviction. For instance, over 920 detainees in Delhi wished to return home and therefore agreed to a plea bargain in return for a less severe punishment. Of the 36 who remained, all faced trial, and all were acquitted.40 3.1.1 Judicial Intervention against Criminal Proceedings A petition against charges of violating Tourist Visa conditions was filed in the Bombay High Court by 29 overseas attendees booked under the Acts named above (along with the Maharashtra Police Act, 1951). All charges were dismissed on 21 August 2020, with the Court accusing Maharashtra police of acting ‘mechanically’.41 Justice TV Nalawade and Justice MG Sewlikar asserted that the state government had been politically compelled to take such action as the police lacked the courage to implement their legal powers. The judges stated that the detainees were being used as political ‘scapegoats’ by the government, and that the allegations lacked substance as the detainees were not seeking to proselytise or convert people.42 Moreover, the government acted unlawfully in treating foreign citizens with distinct faiths differently from their own citizens.43

Hatred,” The New York Times, April 12, 2020, https://www.nytimes.com/2020/04/12/world /asia/india-coronavirus-muslims-bigotry.html. 38 Shantha and Chauhan, “Tablighi Jamaat.” 39 Ibid. 40 Ibid. 41 Sonam Saigal, “Bombay High Court quashes FIR s against foreigners who attended Tablighi Jamaat congregation,” The Hindu, August 22, 2020, https://www.thehindu.com/news /national/bombay-hc-quashes-firs-against-foreigners-attending-tablighi-jamaat-congregation/article32419331.ece. 42 Ibid. 43 Ibid.

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Justice Nalawade stated that foreign nationals were free to attend their usual religious activities and visit religious venues.44 Emphasising widespread disinformation, he condemned both electronic and printed media for portraying Muslims as criminals and COVID-19 spreaders. Describing this as persecution, he claimed that such action was wholly unjustified given recent infection figures and the current situation. He urged those in charge to take positive action to undo the harm that had been caused.45 3.2 Role of the Media during the COVID-19 Pandemic in India Foreign nationals trapped in India were widely blamed for India’s inability to manage the pandemic.46 By early April 2020, a new hashtag, #CoronaJihad, was trending on Twitter, blaming Muslims for spreading COVID-19.47 Equality Labs, a US digital human rights group, claimed this had appeared over 300,000 times on Twitter and could have been seen by up to 165 million people.48 Concomitantly, Hindu nationalist enmity towards Muslims grew in intensity on both mainstream media and social media platforms. Prime Minister Modi gave a national speech on 2 April 2020 but made no effort to dampen the anger of Hindu nationalists and said nothing about either migrant workers or Muslims. Instead, he reassured India that it would be guided from darkness into light and drew on Hindu religious texts to ask people to light nine diyas, which are oil lamps used in upper and middle-class Hindu homes, on 9 April 2020 at 9:00 pm. His invocation of a Hindu identity to portray a new and majoritarian Hindu India involved the skillful use of linguistic devices such as silence, dog whistling, and Othering. In so doing, he defined the ideal citizen as an uppercaste Hindu, affirming their identity, sense of belonging, and worldview.49 Thus, those travelling to the Tablighi Jamaat were criminalised by both the government and media.50 Angry outbursts against Muslims erupted on right-leaning media outlets such as Republic TV, Zee News, and Times Now, along with the news agency ANI and media houses such as Amar Ujala. Sudhir 44 45 46 47 48 49 50

Shaswant Dev, The Modern Plague: History Shared En Masse (New Delhi: BlueRose ­ ublishers, 2020), 46. P Saigal, “Bombay High Court quashes FIR s against foreigners.” Shantha and Chauhan, “Tablighi Jamaat.” Ila Nagar, “The language of suppression: Muslims, migrant workers, and India’s response to COVID-19,” Language in Society (2021): 3. See Payal Mohta, “Fuelled by social media, in India Muslims are a “a convenient ­scapegoat” for the coronavirus,” May 6, 2020, https://www.equaltimes.org/fuelled-by-social-mediain-india?lang=en#.YhgiN4rMK3A. Nagar, “The language of suppression,” 3. Shantha and Chauhan, “Tablighi Jamaat.”

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Chaudhary, an editor at Zee News, claimed that the increase in cases was caused by Tablighi Jamaat members’ ‘dushit soch (corrupt thoughts)”. and that their “religious belief’ had caused a national ‘state of crisis’.51 Similar ­attributions of blame were made by the Health Ministry and the Union Home Ministry. For instance, in April 2020, Lav Agarwal, joint secretary of the Ministry of Health and Family Welfare, claimed the Jamaat had played a role in spreading COVID-19, linking 4,291 of the 14,378 positive COVID-19 cases on 19 April 2020 to the event.52 Later, on 21 September 2020, G. Kishan Reddy, the Minister of State (Home Affairs) cited a report by Delhi Police that despite legal orders, masses of people had gathered in an enclosed space for hours without sanitizers, masks, and social distancing.53 The dissemination of communal hatred was also fuelled by political leaders. For instance, the purported role of Tablighi Jamaat in circulating COVID-19 was condemned by Yogi Adityanath, chief minister of Uttar Pradesh.54 Similarly, BJP leader Rajeev Bindal asserted that Tablighi members were effectively ‘human bombs’55 while BJP MP Shobha Karandlaje claimed on Kannada news channel Suvarna TV that Tablighi Jamaat attendees were engaged in a ‘corona jihad’,56 a sentiment endorsed by fellow BJP MP Anant Kumar Hegde. No attempt was made to resist such allegations, which were presented as ‘news reports’.57 3.2.1 Media Reports Led Communal Violence This venomous rhetoric increased violence and discrimination against ­Muslims.58 Among the many hashtags trending on Twitter were ‘CoronaBombsTablighi’, ‘CoronaTerrorism’ and ‘coronaJihad’.59 Now labelled ‘corona villains’,

51 Ibid. 52 Sukanya Shantha, “COVID, Communal Reporting and Centre’s Attempt to Use Independent Media as Alibi for Inaction,” The Wire, November 18, 2020, https://thewire.in /­communalism/tablighi-jamaat-communal-reporting-ib-ministry-coronavirus. 53 Ibid. 54 Ibid. 55 Gettleman, Schutlz and Raj, “In India, Coronavirus Fans Religious Hatred.” 56 Shantha, “COVID, Communal Reporting.” 57 Ibid. 58 Niranjan Sahoo, “As COVID pandemic fuelled hate and violence against Muslims, Modi’s approval rating,” May 2, 2020, https://theprint.in/opinion/as-covid-pandemic-fuelledhate-and-violence-against-muslims-modis-approval-rating-soared/413409/. 59 Hannah Ellis-Petersen and Shaikh Azizur Rahman, “Coronavirus conspiracy theories targeting Muslims spread in India,” The Guardian, April 13, 2020, https://www.theguardian .com/world/2020/apr/13/coronavirus-conspiracy-theories-targeting-­muslims-spread-inindia.

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vigilante groups began a series of physical attacks against Muslims.60 In one egregious example, on 5 April 2020 a group of assailants mercilessly beat a young Muslim man, Mehboob Ali, in the village of Harewali, north-west Delhi, for attending Tablighi Jamaat events. Dragged to a nearby field, Ali was struck with shoes and sticks until he bled from his ears and nose. The Hindu mob claimed that a religious event from which Ali had returned formed part of a wider Islamic conspiracy to circulate COVID-19 to all Indian Hindus. This was corroborated by footage of the incident and the accounts of family members, who described his assailants as punishing him for attempting to engage in a ‘corona jihad’. Before allowing him to be taken to hospital, his attackers took Ali to a nearby Hindu temple and instructed him to convert to Hinduism and renounce Islam. Ali’s family, after five days, reported fearing similar accusations. An anonymous family member said they would be driven out of the ­village if they filed a case with the police.61 In another instance, tourism minister of Rajasthan state, Vishvendra Singh, reported that the 7-month-old foetus of a pregnant Muslim woman died after she was refused entry to a hospital.62 Muslim fruit vendors were also forced to close by Hindu youths in Uttarakhand, while in Gurugram, a New Delhi suburb, a mosque came under gunfire.63 On 9 April 2020, the night Modi asked people to turn off their household lights for 15 minutes to demonstrate national unity, neighbours attacked a Muslim family in Haryana for refusing to comply.64 Despite a total lockdown in India, violence erupted between Hindu and Muslim communities when a rumour circulated in Telinipara, 45 km north of Kolkata, that the Hindu majority were being infected by ‘hundreds of Muslims’ with COVID-19. 10 May 2020 saw the beginning of a three-day period in which gangs of Hindu mobs set alight 45 Muslim households, to which Muslims responded by extensively damaging nine Hindu shops and houses.65

60 61

Sahoo, “As COVID pandemic fuelled hate.” Gettleman, Schutlz and Raj, “In India, Coronavirus Fans Religious Hatred,” and ­Ellis-­Petersen and Rahman, “Coronavirus conspiracy theories.” 62 Aniruddha Ghosal, Sheikh Saaliq and Emily Schmall, “Indian Muslims face stigma, blame for surge in infections,” abcNEWS, April 25, 2020, https://abcnews.go.com/Health /wireStory/islamophobia-large-cluster-affects-indias-virus-fight-70344026. 63 Ibid. 64 Ibid. 65 Shaikh Azizur Rahman, “Coronavirus Rumors Spark Communal Violence in India,” Voice of America, July 8, 2020, https://www.voanews.com/a/covid-19-pandemic_coronavirus-rumors-spark-communal-violence-india/6192466.html.

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Having been silent for days, Modi appealed for unity, proclaiming the virus does not recognise ‘religion, language, or borders’, but could not prevent the increasing tensions between communities.66 Manifested in violent assaults on frontline health workers, the intense distrust Muslim communities felt towards the Hindu nationalist government impeded efforts to provide healthcare and contain the virus.67 3.2.2 Judicial Intervention against Misinformation on Media A writ68 directing the Ministry to take stringent action against segments of the media seeking to communalise the Nizamuddin Markaz issue was then filed by the Tablighi Jamaat. Its central claim was that prejudice and ­communal enmity was being fuelled by media attitudes towards the event. On 8 ­October 2020, Sharad A. Bobde, the Chief Justice of India, reprimanded the Union government for poorly treating the Supreme Court when it made a junior officer file an ‘evasive’ affidavit that included ‘unnecessary, nonsensical’ allegations regarding the petition.69 The Chief Justice wanted this affidavit to be filed by the Secretary of the Information and Broadcasting Department as it was important to hear his views on what happened at a time when freedom of speech is being increasingly abused.70 3.3 Hindutva Ideology and Religious Discrimination against Muslims during the COVID-19 Pandemic To promulgate its enduring Hindu nationalist, and ergo anti-Muslim, ­Hindutva ideology, the governing BJP formulated a series of discourses fuelling fears around COVID-19. Indeed, the BJP has promoted this type of ideology since 1989 as part of a forceful attempt to disenfranchise India’s Muslim population.71 Central to its identity, therefore, is the belief that Hindu ‘values’ form the ­bedrock of Indian culture and society.72 66 Sahoo, “As COVID pandemic fuelled hate.” 67 Ibid. 68 Jamiat Ulama-I-Hind & Ors. v. Union of India & Anr, Writ Petition (Civil) Diary No. 10871 of 2020, Civil Original Jurisdiction, In the Supreme Court of India. 69 Krishnadas Rajagopal, “Supreme Court slams Centre on Tablighi affidavit,” The Hindu, October 8, 2020, https://www.thehindu.com/news/national/sc-slams-centre-on-tablighiaffidavit/article32801548.ece. 70 Ibid. 71 Ajnesh Prasad, “The organization of ideological discourse in times of unexpected crisis: Explaining how COVID-19 is exploited by populist leaders,” Leadership 16, no. 3 (2020): 295. 72 Murali Krishnan, “India: Is the ruling BJP’s ‘Hindutva’ approach a civilizational principle?,” February 18, 2022, https://www.dw.com/en/india-is-the-ruling-bjps-hindutva-­approacha-civilizational-principle/a-60835665.

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A notable success in promoting Hindutva came in 2016 when the Citizenship Amendment Bill (CAB) was passed by Lok Sabha, the lower house of India’s parliament. Its purpose was to allow non-Muslim illegal immigrants from Bangladesh, Pakistan, and Afghanistan to become Indian citizens. Although BJP members claimed the CAB positively sought to protect minorities from persecution in their home countries, its exclusion of Muslims revealed its essentially discriminatory nature. Nevertheless, on 11 December 2019, the Rajya Sabha, the upper house of India’s parliament, passed the bill.73 This motivated Indian citizens with a conscience to embark on large-scale protests against the CAB. Simultaneously, COVID-19 emerged and spread rapidly, resulting in the World Health Organization classifying it as a pandemic on 11 March 2020. To stem the exponential growth of COVID-19 cases in India, an immediate national lockdown was announced by Modi on 25 March 2020. BJP leaders then exploited the emergency by conflating the COVID-19 discourse with their Hindutva ideology.74 3.3.1 Meaning of Hindutva Writing in the 1920’s, Vinayak Damodar Savarkar, author of Hindutva: Who is a Hindu? is considered the first ideologue of Hindutva. He argued that Hindutva is different to Hinduism and provides a way to secure the superiority of the Hindu race (as opposed to the religion). Although ‘ism’ alludes to a code or theory predicated on a religious or spiritual or system or dogma, he asserted this is not the main concern when examining the importance of Hindutva. According to Savarkar, Hinduness is a more apposite term to use than Hinduism as an approximation to Hindutva, which encompasses all activities and thoughts of the Hindu role.75 To define Hindutva, Savarkar asserted that any person who regarded Bharatvarsha from the sea to the Indus, the place where the religion originated, to be their ‘pitribhumi’ (Fatherland) and ‘punyabhumi’ (Holyland), could be a Hindu,76 and that three essential elements delineate Hindus as a common race: rashtra (territory), jati (race), and samskriti (culture).77 Territorially, a Hindu feels connected to areas between the rivers Sindhu (Indus) and ­Brahmaputra, and from Himalayas to the Cape Comorin, regions perceived as constituting 73 Prasad, “The organization of ideological discourse,” 296. 74 Ibid. 75 Vinayak Damodar Savarkar, Hindutva: Who is a Hindu?, (1929) 4th edition (Pune: S. P. Gokhale, 1949), 3–4. 76 Ibid. 77 Ibid, 81.

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India for centuries.78 This implies a correspondence between one’s fatherland and Holyland. Through this connection, Savarkar constructs the political category of Hindu as antithetical to that of Muslims and Christians, stating that although the latter inherited the same Fatherland as the Hindus, alongside language, folklore, custom, law, and history; they are not Hindus as their Holyland is located far away in Arabia or Persia.79 Thus, the Hindutva ideology is embedded in the political construct of solidarity, which is derived from the cultural beliefs of Hindus. Savarkar therefore asserted that centuries of assimilation and interconnection have engendered unique historical, cultural, social, religious, and linguistic commonalities that bind Hindus, despite numerous external differences. Through his references to Arabia or Persia, Savarkar claims that the principal issue with Muslims and Christians is that they do not view India as their Holy Land and thus their mental allegiance lies elsewhere. This threatens the unity of the nation and means they cannot be recognised or even accommodated as validly belonging to the Hindu nation.80 Further expounding on the definition of a Hindu and of Hindutva, Madhavrao Sadashivrao Golwalkar claimed that five unique factors constitute a Hindu nation: geographical (Country), racial (Race), religious (Religion), cultural (Culture), and linguistic (Language).81 He explained each category in detail. First, geographical is an inherited region to which people feel an unbreakable communal bond.82 Race is an inherited society with a shared language, customs, and common memories of success or failure: in essence, a common origin within one culture.83 Religion and culture are hard to distinguish. This is due to the fact that religion is the very essence of people, determining all actions undertaken by both individuals and the society of which they are a part.84 Golwalkar further contended that those who believed religion should be kept separate from politics do not fully understand what it means. By governing all areas of society, religion can accommodate all the different characteristics of individuals, and offers appropriate ways for mental frames to develop such that society can move from the material realm to a

78 79 80

Ibid, 3–4. Ibid, 92. Brenda Cossman and Ratna Kapur, “Secularism: Bench-Marked by Hindu Right,” E­ conomic and Political Weekly 31, no. 38 (1996): 2617–2618. 81 Madhavrao Sadashivrao Golwalkar, We or Our Nationhood History, (Nagpur: Bharat ­Publications, 1939), 18. 82 Ibid, 20. 83 Ibid, 21. 84 Ibid.

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moral or spiritual one.85 It is not possible to ignore the role of religion either in individual or public life.86 Finally, language is a vital component of every nation and the races it accommodates, reflecting religion, history, culture, and traditions.87 According to such definitions, Hindus are a nation as they satisfy all these categories.88 Moreover, Hindustan, the land of the Hindus, has clear geographical integrity and is therefore a country. Golwalkar further stated that common traditions, memories, culture, language, and customs are what constitute a Hindu race.89 He argued that Muslims and Christians who live in Hindustan can still become part of the Hindu nation if they adopt its religion, culture, and language, and eschew racial, religious and cultural characteristics that distinguish them.90 If Muslims and Christians do not indivisibly merge into the national community and recognise the national religion as the state religion, they will be viewed as foreigners. To assimilate, they need to give up their distinct identity to become part of the Hindu race, otherwise they will be considered subordinate with no privileges, favours, or claims, including citizen’s rights.91 Golwalkar thus construed the Hindu nation as threatening claims to legitimacy by religious minorities, and repudiating any claim for their rights to be protected. Whereas Hinduism generally encompasses a plethora of traditions, Hindutva strives to build a Hindu rashtra. Moreover, whereas Hinduism is premised on tolerance and peace, the forces supporting Hindutva are fundamentally fascist in terms of both the way they operate and their nature.92 Therefore, the socio-political-economic ideology of those promoting Hindutva is presented under the guise of religious ideology.93 Nowadays, it is the Hindu right that has adopted Hindutva as its ideology. This broad faction includes not only the BJP but also Shiv Sena, the Vishva Hindu Parishad or Universal Hindu Council (VHP), and the RSS, who wish to establish a Hindu rashtra in India. According to RSS chairman Mohan ­Bhagwat, a Hindu rashtra does not seek to expel Muslims and the notion of 85 Ibid, 23. 86 Ibid. 87 Ibid, 26. 88 Ibid, 40. 89 Ibid. 90 Ibid, 45–46. 91 Ibid, 47–48. 92 Romila Thapar, Fascism of Sangh Parivar (Bombay: Ekta, 1999). Referred by Jawaid ­Quddus, “Hindutva and Indian Diaspora,” in Religion, Power and Violence: Expression of Politics in Contemporary Times, ed. Ram Puniyani (New Delhi: Sage Publications, 2005), 58. 93 Quddus, “Hindutva and Indian Diaspora,” 158.

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a Hindu rashtra is based on inclusion rather than exclusion of any community or creed.94 However, other academics, like Brenda Cossman and Ratna Kapur, believe that the RSS, VHP, and Shiv Sena seek Hinduism’s supremacy over other religions.95 Following the initial emergence of the BJP in 1990, and notable successes in 2014 and 2019 elections, the association between Hindutva and Hinduism is now more evident.96 Current political discourse either uses religious language, symbols, and ceremonies as a form of punctuation, or makes political appeals that draw on religious discourse to proclaim superiority for Hinduism. Nevertheless, the relationship between Hinduism (as a religious category) and Hindu (as a political category) remains complex. However, the concept of Hindu rashtra and Hindutva means much more than a simple appeal to Hinduism. An equally vital element of Hindutva is the aforementioned challenge to the legitimacy of minority rights. Hindutva still refers to assimilation and thus maintains its meaning as antithetical to the beliefs of Muslims and Christians. Threatening the lawfulness of minority religious communities thus remains central to Hindu rashtra and Hindutva. It is this that endows Hindutva with its political character, alongside a desire to assimilate religious minorities into Hinduism.97 3.3.2 Hindutva Scrutinises the Indian Constitution’s Shortcomings The ‘Hindutva’ converts the concept of a multi-religious Indian society and political governance into the language of a politically formulated Hinduism. It was not until the 1980s that the Indian Constitution, 1950’s shortcomings were scrutinised by Hindutva. The belief that the initial form of the Constitution and its later progression remained unfavourable to the majority who were born Hindus or opted to remain loyal to this religion is the basis of the Hindutva explication. In so doing, it draws on examples of discrimination that derive from how the text and background to the Indian Constitution function and are

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“No Hindu rashtra without Muslims, Hindutva based on unity in diversity: Mohan Bhagwat.” The Hindustan Times, September 18, 2018, https://www.hindustantimes.com /india-news/no-hindu-rashtra-without-muslims-hindutva-based-on-unity-in-diversity-mohan-bhagwat/story-DRFWYkKTNfSVyDPQMVFV1I.html. See Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)rule of Law (New Delhi: Oxford University Press, 1999). Arvind Sharma, “On the Difference Between Hinduism and Hindutva,” Asian Philosophies and Religions 25, no. 1 (2020), accessed February 20, 2022, https://www.asianstudies.org /publications/eaa/archives/on-the-difference-between-hinduism-and-hindutva/. Cossman and Kapur, “Secularism,” 2619.

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understood.98 The Hindutva contends that the form of secularism embedded in the Constitution is problematic for the following key reasons.99 Firstly, unlike the mandated reform of Hindu religious beliefs and practices that represent clear violations of human rights (e.g., ‘untouchability’ practices), non-Hindu religious traditions are granted impunity through ongoing ‘personal law’ rights-violative formations. Secondly, Article 30’s almost absolute protection of minority groups’ entitlement to set up and run their desired educational establishments is perceived as preferring non-Hindu religious customs. Thirdly, by favouring quotas designed to rectify historical millennial wrongs, affirmative action programmes disadvantage Hindu citizens. Fourthly, the development of ‘Hinduism’ as a political ideology expressing legitimate views on a form of governance readily accessible to secular political parties is impeded by the fact that, at least up until the Hindutva judgement of Supreme Court, the Representation of Peoples Act, 1951 (RPA) views appeal to religion as a ‘corrupt practice’. Fifthly, constitutional protection afforded to religious belief and practice encourages religions such as Hinduism but favours minority religions. Sixthly, Article 370 provides Jammu and Kashmir with a special constitutional position, generating antagonistic discrimination against the Hindu minority and removing the Kashmiri Pandits of their rights through compulsory diaspora. Indian constitutionalism is therefore characterised as ‘pseudo-secular’ by Hindutva critics. However, India revoked the transient ­special autonomy on 5 August 2019.100 3.3.3 Appeals to Hindutva in Election Campaign and the Role of Judiciary in Interpreting Hindutva Those who support Hindutva claim it equates to Hinduism; which has increased the proportion of the Hindu majority practicing Hinduism.101 Both the BJP and Shiv Sena employed the term Hindutva whilst campaigning for Maharashtra State Assembly elections in 1990. For instance, the founder and leader of Shiv Sena (Foot soldiers of Shiva), Bal Thackeray, pronounced that Muslims should be aware that India is and always will be the property of 98

Upendra Baxi, “The (Im)possibility of Constitutional Justice: Seismographic Notes on Indian Constitutionalism,” in India’s Living Constitution: Ideas, Practices, Controversies, eds. Zoya Hasan, E. Sridharan and R. Sudarshan, 2nd impression (Delhi: Permanent Black, 2006), 48–49. 99 Ibid, 49. 100 Ibid. 101 Prakash Louis, The Emerging Hindutva Force: The Ascent of Hindu Nationalism (New Delhi: Indian Social Institute, 2000). Referred by Quddus, “Hindutva and Indian Diaspora,” 158.

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Hindus. He p ­ rovocatively referred to Khalistan and Muslims as a ‘snake’ that cannot be dealt with, and claimed Hindutva is a reaction to the ruination of the whole nation.102 The subsequent election of multiple members of pro-Hindu parties to the state legislature resulted in thirteen Hindutva cases being heard by the Supreme Court of India.103 They were charged with violating the RPA as they had made an appeal to religion during their campaigns and ignited religious hatred and enmity. This was because several political speeches appealed to Hindutva, arguing that under different provisions of the Constitution and in law, Muslim religious minorities were afforded special treatment. Among the examples cited were constitutional provisions granting the Muslim-dominated state of Jammu and Kashmir special status and personal status laws regulating domestic and familial issues. In the main case, Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,104 twelve members of Hindu nationalist parties including Shiv Sena’s leader Bal Thackeray and Mahohar Joshi (who was also the incumbent Maharashtra chief minister) of the BJP, were involved. Their appeal to Hindutva led them to being accused of contravening Section 123 of the RPA, Section 123(3) of which forbids election candidates from seeking votes on religious grounds, whereas Section 123(3A) outlaws the promotion of hostility for the same reason. In Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,105 the Court delivered its main view on whether the RPA was violated by appealing to Hindutva. In this case, charges of corruption were levelled at the incumbent mayor, Bombay Ramesh Yeshwant Prahboo, and his election agent, Thackeray, for appealing for votes on the grounds of religion. The Supreme Court confirmed that relevant provisions of the RPA were constitutional because they eradicated appeals to schismatic factors during electoral processes that engender powerful yet unfounded feelings that conflict with the 102 103

104 105

First speech on November 29, 1987. Translated in Hindutva judgement para 57. These include Manohar Joshi v. Nitin Bhaurao Pati (1996) 1 SCC 169 (India); Ramesh Yashwant Prabhoo v. Prabhakar Kasinath Kunte, AIR 1996 1 SC 1113 (India); Bal Thackeray v. Prabhakar Kasinath Kunte IR 1996 SC 1113 (India); Ramchandra G. Kapse v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India); Pramod Mahajan v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India); Sadhvi Ritambhara v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India); Ramakant Mayekar v. Smt. Celine D’Silva (1996) 1 SCC 399 (India); Chhagan Bhujbal v. Smt. Celine D’Silva, 1 SCC 399 (India); Pramod Mahajan v. Smt. Celine D’Silva (1996) 1 SCC 399 (India); Balasaheb Thackeray v. Smt. Celine D’Silva, 1 SCC 399 (India); Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar (1996) 1 SCC 394 (India); Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, (1996) 1 SCC 378 (India); Shri Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh Naik (1996) 1 SCC 384 (India). AIR 1996 SC 1113 (India). Ibid, 1124.

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fundamental principles of the Constitution.106 The Supreme Court clearly condemned the disparaging terms applied to religious minorities and expressed its ‘distress’ at the various speeches made. For the Court, Justice J. S. Verma asserted that individuals cannot incite illogical fears or attack the religion of others in the pursuit of electoral success whilst claiming they are doing so to protect their own creed, culture, or religion.107 The term ‘Hindutva’ was eventually accepted by the Court as referring to a ‘way of life’ rather than an appeal to religion or an ideology antagonistic to other religions.108 In considering Hindutva, Justice Verma began by reviewing how Hinduism had been defined in Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya.109 In this case, Chief Justice P. B. Gajendragadkar engaged in a lengthy discussion of Hindu identity and comprehensively explained why Hinduism could not be defined in terms of the conventional and somewhat limited elements of what is meant by a religion; he asserted it could be more accurately considered a ‘way of life’.110 A similar definition was proposed by philosopher Sarvepalli Radhakrishnan (1888–1975) and Jawaharlal Nehru, India’s first prime minister (1889–1964). Whilst delivering the Upton Lectures at Oxford in 1926, R ­ adhakrishnan controversially characterised Hinduism as a way of life rather than a type of thought. He explained that although Hinduism allows total freedom with respect to thought, its followers must adhere to a rigid code of practice. Thus, provided Hindus accept Hinduism as both a culture and way of life, it is possible for everyone, skeptics and agnostics, theists and atheists, to become Hindus.111 Nehru asserts that it is extremely difficult to determine whether Hinduism is a religion as it has no clear structure and appears to mean whatever people wish it to mean. This is exemplified by the fact that both now and in the past, it encompasses multiple beliefs and practices that are often contradictory and conflicting. According to Nehru, its central philosophy appears to be one of ‘live and let live’.112 Returning to the discussion of Hindutva, the Court examined how Hinduism had been defined in the ­Commissioner of Wealth Tax, Madras and Others v. Late R. Sridharan.113 ­Hindutva was referred to as tolerant at the level of doctrine, as it permitted 106 Ibid. 107 Ibid. 108 Ibid, 1127. 109 AIR 1966 SC 1119 (India). 110 Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113, at 1127 (India) (quoting Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya, AIR 1966 SC 1119 (India). 111 Sarvepalli Radhakrishnan, The Hindu View of Life (New York: Macmillan, 1957). 112 Jawaharlal Nehru, The Discovery of India (London: Meridian Books, 1960), 63. 113 (1976) 4 SCC 478 (India).

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both Hindus and non-Hindus to pursue and follow the creed and practices that best meet their needs.114 Reflecting on both cases, the Court equated Hindutva to Hinduism by contending that the former was a ‘way of life’ that distinguished it from narrowly delineated fundamentalist Hindu prejudice.115 Thus, the Court held that it is impossible to prescribe a clear meaning to terms such as ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and with the exception of Indian heritage and culture, no abstract meaning can be applied that would be confined to the narrow parameters of religion. Consequently, the Court held that it is hard to understand how an equivalence can be drawn between rigid fundamentalist Hindu religious prejudice and ‘Hindutva’ or ‘Hinduism’.116 Although the Court elaborated on the meaning of Hindutva based on these two decisions, neither mentioned Hindutva.117 Therefore, the judgment is not supportable. Moreover, by associating Hindutva with Hinduism, the birth/race and sacred soil elements of Hindutva articulated by Savarkar were overlooked.118 A passage from Maulana Wahiduddin Khan’s book entitled “Indian Muslims: The Need for a Positive Outlook” (1994) was then quoted by the Court to show that Hindutva denotes a ‘way of life’ rather than religious Hindu fundamentalism.119 Moreover, the Court asserted that the provisions of the RPA were not violated by the terms Hinduism and Hindutva alone. To construe both terms as representing hatred, aggression, or intolerance towards those following other religions is the result of a failure to appreciate their authentic meaning, which occurred in earlier discussions in the Court. It would be exceptionally regrettable if judicial decisions fail to recognise the liberal and tolerant elements of Hinduism.120 The Supreme Court’s judgment is contentious. Firstly, it erred by proclaiming that Hindutva denoted a way of life of all Indians, and that support for this did not contravene prohibitions on promoting religious hatred or appealing to religion to secure electoral success.121 The assumption made was that it is 114 115 116 117 118 119 120 121

Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte, AIR 1996 SC 1113, 1127 (India) (quoting Commissioner of Wealth Tax, Madras and Others v Late R. Sridharan (1976) 4 SCC 478) (India). Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte, AIR 1996 SC 1113, 1130 (India). Ibid, 1130. See Cossman and Kapur, Secularism’s Last Sigh?, 27. Ronojoy Sen, “Legalizing Religion: The Indian Supreme Court and Secularism,” Policy Studies 30, (Washington, D.C.: East-West Center Washington, 2007), 33, accessed February 1, 2022, https://www.eastwestcenter.org/sites/default/files/private/PS030.pdf. Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte, AIR 1996 SC 1113, 1130 (India). Ibid, 1131. Ratna Kapur, ‘’The ‘’Ayodha’’ Case : Hindu Majoritarianism and the Right to Religious ­Liberty,” Maryland Journal of International Law 29 (2014): 328.

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straightforward to extend the norms of the majority to all Indians; irrespective of their cultural or religious identity.122 Secondly, ‘Indianisation’ was assumed by the Court to denote the political and cultural wishes of all Indians within and via the creation of a uniform culture. The Court overlooked the fact that achieving this necessitates the assimilation of all minorities and reformulating all Indian citizens in accordance with an implicit but predominant Hindu norm. It simply assumed that it is appropriate to judge the practices and rhetoric of the Hindu right against majoritarian norms. Although the Court’s reliance on such dominant norms is not unusual, such norms can have an extremely deleterious impact on minorities who do not adhere to them.123 Furthermore, eradicating the differences between coexisting cultures is not the objective of the Constitution of India. For instance, Article 29 stipulates that Indian citizens with a distinct culture or language also have the right to preserve their cultures. Moreover, the Court ignored the wider political context in which ‘Indianisation’ was employed in the late 1960s by Jana Sangh leaders to accuse Muslims of not being sufficiently Indian. Thus, it is only in the Rashtriya Swayamsevak Sangh or National Volunteer Core (RSS) discourse that ‘Hindutva’ is synonymous for ‘Indianisation’, albeit not in the way intended by the Court.124 Moreover, it becomes impossible to discuss non-Hindu forms of ‘Indianness’ if, as the Court suggests, ‘Hinduism’ equates to ‘Indianness’. Attempts to construct a uniform Hindu culture effectively erase Muslim religion and identity. This is a majoritarian stance whereby ‘Indianisation’ encompasses the cultural and political ideals of all Indians. Describing Hinduism as a ‘way of life’ thus implies no distinction can be made between Indian culture and Hinduism per se.125 Thirdly, the wider discursive battle over what secularism means in India, in which the Hindu Right has been an extremely active participant, was not fully appreciated by the Court. The primary understanding of secularism as ‘equal respect for all religions’ has been adopted and utilised by Hindu Right parties to advocate Hindutva and the creation of a Hindu state.126 Adopting such a view entails an acceptance that religious minorities should be treated no differently from the Hindu majority, and thus any protection of minority rights contravenes the spirit of secularism and equates to ‘appeasement’. Therefore, the view of secularism promulgated by the Hindu Right forms the 122 Cossman and Kapur, “Secularism,” 2616. 123 Ibid. 124 Anil Nauriya, “The Hindutva Judgments: A Warning Signal,” Economic and Political Weekly 31, no. 1 (1996): 11. 125 Kapur, ‘’The ‘’Ayodha’’ Case,” 329. 126 Ibid.

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basis of an altered majoritarianism where the Hindu majority becomes the standard against which everyone else is assessed. Hence the aim of secularism becomes that of absorbing religious minorities – rather than safeguarding their rights. This is a potent weapon in the Hindu Right’s battle for political power (at least in terms of discourse).127 Moreover, the Hindu Right contrasts Hinduism with Christianity and Islam by arguing that it is the only religion promoting religious tolerance as it does not seek to convert people or proselytise. Secularism therefore requires toleration, and only Hindus are secular because only they show toleration. Any belief in the need to protect minorities effectively vanishes.128 The election manifesto developed by the BJP in 1999 aimed to promote ­Hindutva not as a limited religious concept but as a civilisation. In this manifesto, the BJP alluded to the 1995 judgment in Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte to assert that Indian citizens have repeatedly repudiated attempts to portray Hindutva as an exclusive or sectarian idea, and that the Supreme Court had endorsed the alignment of its authentic meaning and content with true secularism. According to the manifesto, Hindutva considers all forms of belief and worship sacred and Hindutva’s political evolution is an effective response to the accommodation of sectional interests and the setting up of vote banks, as it represents justice for all citizens.129 3.3.4 Hindutva Promotes Religious Fundamentalism, Forced Assimilation and Hindu Rashtra without Guaranteeing Human Rights Hindutva promotes religious fundamentalists who exploit religion to pursue a political agenda. Hindutva is a political philosophy aimed at emphasising Hindu political supremacy over non-Hindus and degrading non-Hindus, particularly Christians and Muslims, to the status of second-class citizens. ­Hindutva weakens secularism by failing to observe ‘equidistant’ secularism, which holds that all religions are equal in the eyes of the law. Anti-Muslim aggression in India is being driven by Hindutva, which has expressed itself not just in the form of increased physical violence against Muslims but also in vitriolic hate speech and demonisation of Muslims. Hindutva is a belief system that encourages prejudice against religious minorities. Its goal is to 127 128 129

Ibid, 317. Ibid, 317–318. Referred by Paranjoy Guha Thakurta and Shankar Raghuraman, Divided We Stand: India in a Time of Coalitions (New Delhi: Sage Publications, 2007), 188.

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stifle Muslim rights and identity, as well as make Indian Muslims stateless. The goal of Hindutva is to root the concept of a Hindu Rashtra by marginalising Christians, Muslims, and other religious minorities. It is regrettable that minorities continued to be marginalised, causing a schism in the country, during a time when people needed to work together to overcome the challenges of COVID-19. In Hindu rashtra, Hindutva aspires to assimilate persons belonging to religious minorities into Hinduism. Thus, Hindutva becomes exclusionary as forced assimilation is unacceptable to religious minorities in India. Consequently, it is critical to avoid forced assimilation of religious communities whose identities are marginalised by bigger (more dominant) cultures and faiths. The international human rights law, such as Article 18 of the International Covenant on Civil and Political Rights 1966 (ICCPR), does not prevent states from assuming a state religion. However, such law does prohibit state-religion relationships that contravene human rights, including those covering religious freedom and people of other faiths or atheists being the target of discrimination. Furthermore, it does not permit the implementation of any state policies or laws that harm or discriminate with regard to religious beliefs. Hence, people must be consistently afforded the liberty to engage in religious practises without being oppressed. Due to the fact that Hindutva does not conform with these criteria, India must avoid converting itself into a Hindu rashtra.130 4 Conclusion Hindutva views Indian society as divided by conflict between Hindus and ­Muslims, whereby the Muslim minority have oppressed, and continue to oppress, the Hindu majority. It calls for unity to overcome this oppression, either by eradicating such groups or, more benignly, assimilating them into the more ‘tolerant’ Hindu race. Either way, it threatens the lawfulness of such minorities and has little regard for their rights. Consequently, its political implementation only serves to engender discord, hostility, and hatred between religious communities.131 Since the Indian BJP government came into power in 2014, it has actively promoted religious extremism and aggressive nationalism. Recently, it exploited the COVID-19 lockdown to continue 130 131

Jahid Hossain Bhuiyan, “Secularism in the Constitution of Bangladesh,” Journal of Legal Pluralism and Unofficial Law 49, no. 2 (2017): 211. Cossman and Kapur, “Secularism,” 2619–2620.

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defaming religious minorities. For instance, Muslims were demonised and portrayed as responsible for this disaster, escalating their dehumanisation. The result is a tainted social fabric with long-term implications in terms of stigma, profiling, and violent assaults.132 Using the Hindutva ideology, the BJP government is clearly focused on marginalising, disempowering, and/or eradicating Muslims and severing the nation’s communal links to construct an exclusive Hindu rashtra (Hindu state) with a multi-religious population. The development of Hindu nationalism has jeopardised India’s secularity and its identity as a liberal democracy that safeguards fundamental rights and freedoms of individuals while ensuring religious liberties. Hindutva is eroding India’s communal peace and democratic nature.133 Both Hindus and Muslims are historically responsible for violent conflict arising from communal rivalries. A strategy to eliminate communal violence should be developed at both local government and state levels, and irresponsible communally-motivated media and agitators be prosecuted. If the state cannot protect all people from communal violence, it will have failed; its negative role, therefore, is to prevent this. India must safeguard the rights of religious minorities, and the constitutional spirit of equality and secularism, yet the political intention to reinforce such constitutional values is lacking. A more powerful political inclination is required to address these challenges; otherwise, equality and secularism may no longer be foundational ideas. Secularism must be promoted (while denouncing communalism) to promote a universal good rather than favouring Hindus over different groups. Religion is exploited within politics to garner support and elicit favour from the populace. However, the political use of religion can trigger conflict, largely due to the need of individuals to defend their faith. These incidences of communal violence have become emblematic, assisting to concretise the more favoured constructions of identity. To confront communalism, India must, among things, prevent religion being abused for political reasons, and members of minority religions becoming the target of persecution. Additionally, awareness should be raised among the general public regarding the dangers of communalism emphasising that combatting communalism does not mean that one must reject religion or completely remove it from the public arena.134

132 133

Nabeel and Raashed, “The Hindutva Aspect of COVID-19,” 8. M. A. Muqtedar Khan and Rifat Binte Lutful, “Emerging Hindu Rashtra and Its Impact on Indian Muslims,” Religions 12, no. 693 (2021): 9. 134 Md Jahid Hossain Bhuiyan, “The Contested Concept of Secularism in Bangladesh” ­American Journal of Comparative Law 20 (2021): 49–50.

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Bibliography Books Bayle, Pierre. Philosophical Commentary on the Words of Jesus Christ, Compel Them to Come in. Edited and translated by Amie Godman Tannenbaum. New York: Peter Lang, 1987. Cossman, Brenda, and Ratna Kapur. Secularism’s Last Sigh? Hindutva and the (Mis)rule of Law. New Delhi: Oxford University Press, 1999. Dev, Shaswant. The Modern Plague: History Shared En Masse. New Delhi: BlueRose Publishers, 2020. Gandhi, Mahatma. All Men are Brothers: Autobiographical Reflections. Edited by Krishna Kripalani. New York: Continuum, 1980. Golwalkar, Madhavrao Sadashivrao. We or Our Nationhood History. Nagpur: Bharat Publications, 1939. Locke, John. A Letter Concerning Toleration. Edited by James Tully. Indianapolis: ­Hackett, 1983. Louis, Prakash. The Emerging Hindutva Force: The Ascent of Hindu Nationalism. New Delhi: Indian Social Institute, 2000. Menski, Werner. Comparative Law in Global Context: The Legal Systems of Asia and Africa. 2nd ed. Cambridge: Cambridge University Press, 2009. Mill, John Stuart. On Liberty and Other Essays. Edited by John Gray. Oxford: Oxford University Press, 1991. Needham, Anuradha Dingwaney, and Rajeswari Sunder Rajan. The Crisis of Secularism in India. Durham, NC: Duke University Press, 2007. Nehru, Jawaharlal. The Discovery of India. London: Meridian Books, 1960. Nussbaum, Martha C. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books, 2010. Nussbaum, Martha C. “Perfectionist Liberalism and Political Liberalism.” Philosophy & Public Affairs 39, no. 1 (2011): 3–45. Radhakrishnan, Sarvepalli. The Hindu View of Life. New York: Macmillan, 1957. Rawls, John. Political Liberalism. Expanded edn. Columbia: Columbia University Press, 2005. Savarkar, Vinayak Damodar. Hindutva: Who is a Hindu?. (1929) 4th edition. Pune: S. P. Gokhale, 1949. Sen, Amartya. The Argumentative Indian: Writings on Indian History, Culture and Identity. London: Penguin Books, 2005. Sen, Ronojoy. “Secularism and Religious Freedom.” In The Oxford Handbook of the Indian Constitution, edited by Sujitt Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, 885–902. Oxford:Oxford University Press, 2016.

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Thakurta, Paranjoy Guha, and Shankar Raghuraman. Divided We Stand: India in a Time of Coalitions. New Delhi: Sage Publications, 2007. Thapar, Romila. Fascism of Sangh Parivar. Bombay: Ekta, 1999.



Book Chapters

Baxi, Upendra. “The (Im)possibility of Constitutional Justice: Seismographic Notes on Indian Constitutionalism.” In India’s Living Constitution: Ideas, Practices, Controversies, edited by Zoya Hasan, E. Sridharan and R. Sudarshan, 31–63. 2nd impression. Delhi: Permanent Black, 2006. Bhargava, Rajeev. “What is Secularism for?.” In Secularism and its Critics, edited by Rajeev Bhargava, 468–542. Delhi: Oxford University Press, 1998. Bhargava, Rajeev. “India’s Secular Constitution.” In India’s Living Constitution: Ideas, Practices, Controversies, edited by Zoya Hasan, E. Sridharan and R. Sudarshan, 105–133. 2nd impression. Delhi: Permanent Black, 2006. Neo, Jaclyn L. “Regulation of Religious Communities in a Multicultural Polity.” In Oxford Handbook on Law and Religion, edited by Rex Ahdar, 178–197. Cheltenham: Edward Elgar, 2018. Quddus, Jawaid. “Hindutva and Indian Diaspora.” In Religion, Power and Violence: Expression of Politics in Contemporary Times, edited by Ram Puniyani, 144–156. New Delhi: Sage Publications, 2005.



Journal Articles

Battaglia, Gino. “Neo-Hindu Fundamentalism Challenging the Secular and Pluralistic Indian State.” Religions 8, no. 216 (2017): 1–20. Bhuiyan, Jahid Hossain. “Secularism in the Constitution of Bangladesh.” Journal of Legal Pluralism and Unofficial Law 49, no. 2 (2017): 204–227. Bhuiyan, Md Jahid Hossain. “The Contested Concept of Secularism in Bangladesh.” American Journal of Comparative Law 20 (2021): 1–50. Cossman, Brenda, and Ratna Kapur. “Secularism: Bench-Marked by Hindu Right.” ­Economic and Political Weekly 31, no. 38 (1996): 2613–2630. Forst, Reiner. “The Limits of Toleration.” Constellations 11, no. 3 (2004): 312–325. Forst, Rainer. “Toleration and its Paradoxes: A Tribute to John Horton.” Philosophia 45 (2017): 415–424. Horton, John. “Why the Traditional Conception of Toleration Still Matters.” Critical Review of International Social and Political Philosophy 14, no. 3 (2011): 289–305. Kapur, Ratna. ‘’The ‘’Ayodha’’ Case : Hindu Majoritarianism and the Right to Religious Liberty.” Maryland Journal of International Law 29 (2014): 305–365. Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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Khan, M. A. Muqtedar, and Rifat Binte Lutful. “Emerging Hindu Rashtra and Its Impact on Indian Muslims.” Religions 12, no. 693 (2021): 1–12. Laborde, Cecile. “Minimal Secularism: Lessons for, and from, India.” American Political Science Review 115 (2021): 1–13. Mustafa, Faizan, and Jagteshwar Singh Sohi. “Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy.” Brigham Young University Law Review 4 (2017): 915–956. Nagar, Ila. “The language of suppression: Muslims, migrant workers, and India’s response to COVID-19.” Language in Society (2021): 1–24. Nauriya, Anil. “The Hindutva Judgments: A Warning Signal.” Economic and Political Weekly 31, no. 1 (1996): 10–13. Prasad, Ajnesh. “The organization of ideological discourse in times of unexpected ­crisis: Explaining how COVID-19 is exploited by populist leaders.” Leadership 16, no. 3 (2020): 294–302. Wani, M. Afzal. “Freedom of Conscience: Constitutional Foundations and Limits.”­ ­Journal of Indian Law Institute 42, no. 2/4 (2004): 289–313.

Case-laws Bal Thackeray v. Prabhakar Kasinath Kunte IR 1996 SC 1113 (India). Balasaheb Thackeray v. Smt. Celine D’Silva, 1 SCC 399 (India). Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, (1996) 1 SCC 378 (India). Chhagan Bhujbal v. Smt. Celine D’Silva, 1 SCC 399 (India). Church of the Lukumi Babalu Aye, Inc v. Hialeah, 508 US 520 (1993). Commissioner of Wealth Tax, Madras and Others v. Late R. Sridharan (1976) 4 SCC 478) (India). Dara Singh v. Republic of India (2011) 2 SCC 490 (India). Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33 (India). Jamiat Ulama-I-Hind & Ors. v. Union of India & Anr, Writ Petition (Civil) Diary No. 10871 of 2020, Civil Original Jurisdiction, In the Supreme Court of India. Manohar Joshi v. Nitin Bhaurao Pati (1996) 1 SCC 169 (India). Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar (1996) 1 SCC 394 (India). Pramod Mahajan v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India). Pramod Mahajan v. Smt. Celine D’Silva (1996) 1 SCC 399 (India). Ramchandra G. Kapse v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India). Ramakant Mayekar v. Smt. Celine D’Silva (1996) 1 SCC 399 (India). Sadhvi Ritambhara v. Haribansh Ramakbal Singh (1996) 1 SCC 206 (India). Sardar Syedna Taher Saifuddin Sahed v. State of Bombay, AIR 1962 SC 853 (India). Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya, AIR 1966 SC 1119 (India). Shri Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh Naik (1996) 1 SCC 384 (India). Md. Jahid Hossain Bhuiyan and Ann Black - 978-90-04-44996-1 Downloaded from Brill.com07/10/2023 05:15:59PM via York University and University of Toronto

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SR Bommai v. Union of India (1994) 3 SCC 1 (India). Universal City Studios Inc v. Films and Plays Censorship Board, HCJ 806/88 (June 15, 1989) (Israel).



Legal Instruments

Constitution of India, 1950. Epidemic Diseases Act, 1897. Foreigners Act, 1946. Hindu Bigamous Marriages Act, 1946. Hindu Marriage Act, 1955. Indian Penal Code, 1860. Maharashtra Police Act, 1951. National Disaster Management Act, 2005. Representation of the People’s Act, 1951.



Website Content

“Religious census 2011.” Accessed March 9, 2022. https://www.census2011.co.in/reli�gion.php. Mohta, Payal. “Fuelled by social media, in India Muslims are a “a convenient scapegoat” for the coronavirus.” May 6, 2020. https://www.equaltimes.org/fuelled-bysocial-media-in-india?lang=en#.YhgiN4rMK3A. Nabeel, Fahad, and Maryam Raashed. “The Hindutva Aspect of COVID-19 Outbreaks in India Authors.” Perspectives 11 (June 10, 2020). Accessed March 5, 2022. https://cscr .pk/pdf/perspectives/The-Hindutva-Aspect-of-COVID-19-Outbreak-in-India.pdf. Sharma, Arvind. “On the Difference Between Hinduism and Hindutva.” Asian Philosophies and Religions 25, no. 1 (2020). Accessed February 20, 2022. https://www .asianstudies.org/publications/eaa/archives/on-the-difference-between-hinduismand-hindutva/. Sabir, Saika. “Constitutional Rights of Minorities: A Critical Analysis.” Bengaluru: Centre for Study of Social Exclusion and Inclusive Policy, National Law School of India University. Accessed February 28, 2022. https://dom.karnataka.gov.in/storage /pdf-files/Sir%20Syed%20Ahmed%20Khan/CONSTITUTIONAL%20RIGHTS%20 OF%20MINORITIES%20-%20by%20Saika%20Sabir.pdf. Sen, Ronojoy. “Legalizing Religion: The Indian Supreme Court and Secularism.” Policy Studies 30. Washington, D.C.: East-West Center Washington, 2007. Accessed February 1, 2022. https://www.eastwestcenter.org/sites/default/files/private/PS030.pdf.

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News Article and Media

Ellis-Petersen, Hannah, and Shaikh Azizur Rahman. “Coronavirus conspiracy theories targeting Muslims spread in India.” The Guardian, April 13, 2020. https://www .theguardian.com/world/2020/apr/13/coronavirus-conspiracy-theories-targetingmuslims-spread-in-india. Gettleman, Jeffrey, Kai Schutlz and Suhasini Raj. “In India, Coronavirus Fans Religious Hatred.” The New York Times, April 12, 2020. https://www.nytimes.com/2020/04/12 /world/asia/india-coronavirus-muslims-bigotry.html. Ghosal, Aniruddha, Sheikh Saaliq and Emily Schmall. “Indian Muslims face stigma, blame for surge in infections.” abcNEWS, April 25, 2020. https://abcnews.go.com /Health/wireStory/islamophobia-large-cluster-affects-indias-virus-fight-70344026. Krishnan, Murali. “India: Is the ruling BJP ’s ‘Hindutva’ approach a civilizational principle?,” February 18, 2022. https://www.dw.com/en/india-is-the-ruling-bjps-hindutvaapproach-a-civilizational-principle/a-60835665. “No Hindu rashtra without Muslims, Hindutva based on unity in diversity: Mohan Bhagwat.” The Hindustan Times, September 18, 2018. https://www.hindustantimes .com/india-news/no-hindu-rashtra-without-muslims-hindutva-based-on-unity-indiversity-mohan-bhagwat/story-DRFWYkKTNfSVyDPQMVFV1I.html. Rahman, Shaikh Azizur. “Coronavirus Rumors Spark Communal Violence in India.” Voice of America, July 8, 2020. https://www.voanews.com/a/covid-19-pandemic _coronavirus-rumors-spark-communal-violence-india/6192466.html. Rajagopal, Krishnadas. “Supreme Court slams Centre on Tablighi affidavit.” The Hindu, October 8, 2020. https://www.thehindu.com/news/national/sc-slams-centre-ontablighi-affidavit/article32801548.ece. Sahoo, Niranjan. “As COVID pandemic fuelled hate and violence against Muslims, Modi’s approval rating.” May 2, 2020. https://theprint.in/opinion/as-covidpandemic-fuelled-hate-and-violence-against-muslims-modis-approval-ratingsoared/413409/. Saigal, Sonam. “Bombay High Court quashes FIR s against foreigners who attended Tablighi Jamaat congregation.” The Hindu, August 22, 2020, https://www.thehindu .com/news/national/bombay-hc-quashes-firs-against-foreigners-attending-tablighi-jamaat-congregation/article32419331.ece. Shantha, Sukanya. “COVID, Communal Reporting and Centre’s Attempt to Use Independent Media as Alibi for Inaction.” The Wire, November 18, 2020. https://thewire .in/communalism/tablighi-jamaat-communal-reporting-ib-ministry-coronavirus. Shantha, Sukanya, and Mukul Singh Chauhan. “Tablighi Jamaat: A Year on, Some Attendees Still Await Trial, Others Struggle To Return Home.” The Wire, March 9, 2021. https://thewire.in/rights/tablighi-jamaat-one-year-trial-struggle-return-homecovid-19-legal-action.

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Index Note: The page number following “n” denotes the index term found in notes. Accommodation 12, 79n, 151, 176, 184, 189, 209, 218, 220, 221, 229, 251, 260, 288 Agnostics 161, 167, 285 AKP (Adalet ve Kalkınma Partisi – Justice and Development Party) 15, 156, 159, 161, 162 Alevis 159, 160 American Declaration of Independence 8 Anti-racial discrimination 199 Assimilation 18, 81, 162, 221, 272, 280, 282, 287–289 Atheists 8, 9, 52, 115, 160, 167, 260, 285, 289 Australia 4, 15, 17, 34n, 48, 48n, 50, 54, 60, 193n, 234–261 Australian constitution 193, 234, 237, 241, 241n, 243n, 244n Authoritarianism 161 Autonomy 34, 35n, 36, 48, 137, 148, 151, 154, 155, 158, 206, 217, 221–223, 228, 229, 283 Azerbaijan 149, 149n Bible 7, 27, 44n, 45n, 62n, 140, 141, 177, 188 Bill of Rights 16, 17, 173, 175, 175n, 176, 188, 204, 218–220, 218n, 230n, 241, 247 Bioethics 16, 162 BJP 18, 65, 268, 269, 276, 278, 278n, 279, 281–284, 288–290 Buddhism 45, 45n, 62, 115, 237 Burial rights 225, 226n, 232 Burqa 14, 15, 73–91, 156 Call to prayer 227, 228, 228n Catholic 6n, 7, 15, 23, 24, 24n, 26–29, 26n, 52, 55, 56n, 96n, 99, 107, 107n, 150–153, 152n, 156, 162–167, 174, 200–203, 206, 207, 207n, 209n, 235n, 237, 238 Catholic Church 6n, 7, 15, 27, 150–153, 152n, 156, 163–167, 235n, 238 Charles I 202, 202n, 203 Christendom 11n, 15, 95, 98, 99, 101, 133, 134 Christianity/Christendom 6, 11n, 15, 17, 23, 56, 62, 95, 98, 99–102, 106, 133, 134, 139, 237, 288

Christmas holidays 180 Church 4, 6–8, 6n, 11n, 15, 22–24, 22–24n, 27–29, 38, 50, 51, 53–57, 53–56n, 59, 59n, 60, 62, 62n, 63, 63n, 65, 66, 75, 97, 97n, 99–103, 99–101n, 125, 125n, 126, 128, 134–136, 138, 140, 148n, 150–153, 156, 157, 163–167, 173n, 176, 181–185, 185n, 187–189, 192, 201, 201n, 204–207, 212, 218, 219, 219n, 222, 222n, 223, 223n, 227, 235, 235n, 237–239, 239n, 248, 256, 271n Church and state 6n, 8, 8n, 75, 97n, 138, 185, 185n, 205, 218, 219n Church law 138 Church of England 7, 22, 24, 24n, 51, 54n, 96n, 97, 99–103, 126, 134–136, 135n, 138, 140, 157, 201, 204, 205, 207, 212, 235 Church of Scotland 97n, 201, 201n Civic religion 21–38 Communalism 18, 267, 276n, 290 Community 13, 21, 23, 28, 38, 47, 52, 53, 57, 63, 66, 80, 82, 129, 140, 154, 186, 218, 219, 221, 224, 225, 228, 229, 238, 239, 242, 248, 257, 258, 262, 271, 281, 282 Compassionate state 34, 34n Confessionism 163, 163n Conscience 17, 23n, 24, 26, 28, 32, 80, 98, 98n, 100, 101, 148, 152, 160, 165, 174, 192, 209, 210, 212, 218, 223, 245, 246, 248, 269, 269n, 270n, 279 Constitution 8, 11, 15–17, 45n, 56, 58–60, 62, 64, 97, 97n, 125, 125n, 148n, 149n, 152, 152n, 157, 158, 163, 164n, 174–189, 192–195, 204n, 205n, 211, 211n, 212, 217–221, 223, 224, 227, 229–231, 234, 237, 241–246, 261, 267–271, 267–269n, 272n, 282–285, 287, 289n Constitutional Court 16, 62, 74, 149, 150n, 160, 164–167, 165n, 221, 223, 229, 230 Constitutional culture 15, 17, 140, 140n, 192–212 Cooperative model 220, 221 Council of Europe 11n, 78, 78n, 85n, 90, 90n, 98n, 103, 103n, 104n, 113, 113n, 147, 161, 218n

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Covid 19 4, 13, 14, 18, 42–67, 87, 91, 195, 197, 269, 269n, 273, 273n, 275–279, 289, 290n Crucifix 162, 167 Curriculum 96, 96n, 99, 101–106, 106n, 108, 108n, 111, 111n, 113, 113n, 118 Dahlab v Switzerland 80, 80n Dalberg-Acton, John Emerich Edward (‘Lord Acton’) 13, 21, 26n, 38 Darwin, Charles 10 Declaration on the Rights of Man 10, 47 Definition of Religion 115, 239, 240 Democracy 6n, 89, 140, 149n, 160, 162, 162n, 168, 228, 267, 270, 290 Discrimination 4, 10, 16–18, 36, 44, 62, 63, 64n, 98, 109, 109n, 115, 115n, 118, 125, 148, 165n, 174, 182, 184, 187, 199, 206–208, 220, 223, 224, 224n, 235, 240, 241n, 249–252, 250–252n, 255–261, 260n, 271, 273, 276, 282, 283, 289 Discrimination laws 18, 249–252, 256–261 Donoghue v Stevenson 15, 126–132, 134, 139, 140 Ecclesiastical courts 125n, 204 ECHR (European Convention on Human Rights) 11, 17, 60, 74, 75, 77, 78, 85, 86, 96, 98–100, 98n, 109, 125n, 147, 149n, 161, 192, 195n, 198, 210 ECtHR (European Court of Human Rights) 14, 73n, 75, 77–91, 77–89n, 98, 118n, 147, 147n, 149n, 156, 160, 161, 160–162n, 168 Endorsement test 179, 180, 188 England 5, 7, 8, 13, 17, 22, 24, 24n, 29n, 48n, 51, 54, 54n, 56, 60, 61n, 76n, 95–97, 96n, 99–110, 100–109n, 115, 116n, 117n, 118, 125, 125n, 126, 128, 133–140, 135n, 140n, 157, 192–212, 235 Enlightenment 6, 6n, 175, 200, 205 Equality of Citizenship 269, 271, 272 Establishment 8, 16, 17, 57, 97, 138n, 140n, 150, 157, 161, 173–179, 173n, 179n, 184, 185, 187–189, 192–212, 243–245, 243n, 270–272, 283 Establishment clause 16, 57, 173, 176, 178, 179, 179n, 184, 185, 187, 188, 243–245, 243n, 244n Establishment of religion 8, 16, 173n, 175, 177, 184, 185, 188, 189, 243, 244

Executive orders 49, 50, 55, 57, 66 Face-covering veils 73, 73n, 74, 74n, 79, 81, 85, 87, 88, 91 Fascism 101, 101n, 281n Feminism 10 France 8, 14–16, 22n, 56, 73–75, 76n, 77, 77n, 79–82, 79–81n, 84, 84n, 85, 85n, 87–91, 87–89n, 133n, 147n, 148n, 149–156, 149–157n, 158, 162n, 166n, 167 Free exercise clause 16, 58n, 173, 176, 180, 183–185, 187, 189, 242, 243, 271 Freedom of religion 4, 15–17, 46, 47, 48n, 57, 60, 62, 74, 75, 78, 79n, 84, 86, 90, 97n, 98, 100, 101, 159n, 163, 165, 209, 210, 212, 217–219, 221–223, 225–231, 234, 235n, 236n, 241, 242, 250, 253n, 254, 257, 268n, 269 Freedom of religion or belief 4, 48n, 97n, 98 French Revolution 7, 153 Full-face veil 81, 85, 87, 88, 162 Gender equality 82n, 155, 162 Gillick case 197 Glorious Revolution 17, 203, 203n, 204, 209 Greek Orthodox 53, 53n, 54, 54n Henry VIII 7, 17, 200, 200n High Court of Australia 17, 60 Hijab 14, 15, 73–91, 162 Hindu 11, 18, 64, 65, 65n, 97, 99, 101, 149n, 267–269, 272, 273, 273n, 274n, 275–292, 278n, 279n, 282–285n Hindu rashtra 267, 281, 282, 282n, 288–290, 290n Hinduism 237, 277, 279, 281–283, 282n, 285–289 Hindutva 18, 267–290 Hobbes 6, 25, 25n, 26n, 194n, 199 Holy communion 53, 54, 54n Holyoake, George 8, 9, 9n Human rights 10, 11, 11n, 12n, 14, 17, 18, 31, 46, 47, 47n, 60, 62–64, 73n, 74, 75, 79, 79n, 81n, 86n, 89n, 95–119, 125, 125n, 140, 141, 147, 149n, 162, 162n, 195n, 198, 204, 209–212, 218, 218n, 220n, 222, 234, 235, 246–250, 246–250n, 258, 259, 261, 275, 283, 288, 289 Human Rights Act 31, 98, 103, 109, 125, 204, 209–212, 246, 246–248n, 249

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index Hyde v Hyde 15, 126, 126n, 132, 133–135n, 137–139, 137n, 141

Luke 128, 128n, 130, 241n, 243n, 245n

Identity 5, 16, 30, 30n, 31, 82, 88, 91, 140, 151, 153, 154, 159, 160n, 162, 168, 187, 200, 220, 230, 250n, 252n, 260, 267, 268, 273n, 275, 278, 281, 285, 287, 289, 290 India 7, 11, 18, 48n, 55, 55n, 62, 64, 64n, 65, 66, 148–149n, 267–290 Indigenous Religious Traditions 236, 237 Integration 81, 83, 89, 111, 199n International Declaration on Secularism in the 21st Century 148 Islam 12, 12n, 15, 43, 45n, 75, 78, 79, 81, 87, 90, 91, 152, 152n, 153, 156–159, 156–159n, 166, 237, 277, 288 Islamic headscarf 77, 77n, 79, 81n, 153–156, 159 Islamophobia 14, 78n, 79, 90, 269, 277n Italy 8, 15, 16, 147n, 149, 150, 162, 163, 163n, 165n, 166, 167n, 168 Jawaharlal Nehru 285, 285n Jewish menorah 180 Judaism 44, 44n, 237 Justification 22, 25, 33, 53, 58, 60, 66, 85, 136, 165, 222n Karl Marx 6, 9, 9n Kemalism 11n, 158, 158n, 162 Laicità 16, 147n, 148, 148n, 150, 151n, 154n, 156n, 161n, 162, 163n, 164–168, 167n Laïcité 8, 8n, 15, 76, 76n, 83, 83n, 85, 147n, 148, 148n, 150–156, 151–156n, 162 Laiklik 11, 11n, 15, 148, 150, 156, 158–162 Lautsi v. Italy 147n Legal duty 129 Less restrictive means 219, 224, 226 Leviticus 130 LGBTI+ 10, 10n, 17, 235, 235n, 249, 252, 254–256, 254n, 261 LGBTI+ equality 249, 252 Liberal democracy 140, 290 Limitation of rights 224 Living together 14, 79, 81–84, 87–91 Locke 6, 8, 8n, 199, 270, 270n Lord Atkin 15, 126–132, 130n Lord Penzance 15, 133–138

Madhavrao Sadashivrao Golwalkar 280, 280n Mahatma Gandhi 267n Marriage 10, 10n, 17, 44, 126, 133–139, 133n, 135n, 137n, 138n, 183, 202, 204–206, 206n, 234, 234n, 240, 240n, 252–256, 253–256n, 258, 261, 272 Marriage equality 10, 252–254, 254n, 256, 256n, 258 Martin Luther 7, 7n Matthew 130 Methodist Church 206, 222, 222n, 232n Minimum requirements of life in society 75, 79, 89 Muslims 6n, 7n, 9, 11n, 12, 14, 15, 18, 43, 44, 49–52, 50n, 52n, 60, 61, 64, 64n, 65n, 74, 75, 76n, 78–81, 83n, 88–91, 97, 99, 101, 153, 156, 157, 159, 160, 160n, 162, 162n, 163n, 228n, 267, 269, 272, 273, 274n, 275–283, 275–277n, 284, 286–290, 290n Narendra Modi 273 Nationalism 8, 11n, 18, 149n, 158, 159, 161, 162, 269, 272, 273, 283n, 289, 290 Neighbour Law 227 Neutrality 5, 11, 12, 15, 57, 75–79, 83–85, 97n, 126, 150, 154, 154n, 156, 168, 179, 186, 188, 220, 229, 244n, 267, 272 Neutrality test 179 Niqab 14, 15, 73–91, 156 Official religion 7, 16, 173, 176, 177, 188, 244 Old Testament 130, 134 Ottoman Empire 156, 157 Pandemic 13, 14, 42–46, 42–45n, 50–52, 56–60, 63–67, 87, 91, 195, 196, 208, 238n, 273, 275, 276–278n, 278, 279 People’s Republic of China 45 Persecution 7, 12, 13, 16, 21–38, 56, 173, 174, 188, 203, 206, 249, 275, 279, 290 Peyote 181 Pluralisation 162, 165, 166 Pluralism 3, 12, 14, 79, 83–85, 89–91, 147n, 149n, 163–165, 163n, 167, 167n, 168, 168n, 226n, 289n Polygamous marriage 134

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Presbyterian Church of Scotland 97n, 201 Prohibition of discrimination 148, 241n Propaganda 79, 80, 87, 89, 153 Property rights 225, 227 Proselytism 79, 80, 85, 91, 153 Protestant 6, 6n, 24, 24n, 26–29, 26n, 45n, 52, 54, 62, 151, 174, 201, 202, 205 Public employees 74 Public health 47, 48, 48n, 51, 53, 55n, 57, 60, 74 Public morality 16, 162 Public order 13, 21, 25, 37, 64, 75, 76, 81, 98n, 152, 156, 162, 245, 269 Public school 79, 152, 165, 167, 177, 178n, 185, 185n, 186, 188 Public sphere 73, 76, 153, 154, 217, 219, 220, 220n, 221n, 227, 228 Rabbi 51, 55, 131, 206 Refah Partisi (the Welfare Party) and Others v Turkey 156, 160, 160n Reformation 6, 7, 13, 17, 21–23, 200–202, 207 Regulation 16, 34, 38, 55n, 59, 60n, 61, 61n, 98, 109, 110, 165–168, 182, 189, 199, 217, 217n, 222, 225–228, 231, 236, 271, 272n Religion or Belief Equality 110n, 116n, 117n Religion or Belief Freedom 4, 48n, 96, 97n, 98, 116, 117 Religious autonomy 217, 221, 222n, 228 Religious communities 13, 16, 18, 21, 50, 53– 55, 55n, 152n, 217, 218, 220–222, 226n, 228–229, 229n, 272n, 273, 282, 289 Religious culture 125–141 Religious Education 13, 95, 98, 101, 101–109n, 104–112, 111–113n, 165n, 189 Religious freedom 3–18, 21, 28, 38, 42–67, 73–91, 95, 98, 166, 167, 181n, 203, 209, 212, 217–231, 234–261, 267–290 Religious Freedom Review 17, 234n, 238n, 240n, 241n, 245n, 246n, 250n, 253n, 254n, 256–258, 256–258n Religious Institutions 4, 7, 8, 10, 16, 59, 150, 217, 217n, 218, 218n, 222, 227, 229, 229n, 238n, 239 Religious minorities 18, 21, 43, 66, 90, 97n, 101, 155n, 160n, 165, 267–290 Religious noise 227 Religious restrictions 13, 46, 47, 49–51, 57, 75, 78, 79, 159

Religious slaughter 226 Religious symbols 73–75n, 76–78, 83, 84, 86, 90, 153–155, 159, 167n Republic of India 271 Republic of Korea 62 Revolutionism 158, 159 Russian Federation 149, 149n Sabbath 181 Sahin v Turkey 77, 77n, 84n, 87, 87n, 160n Salute to liberty 180 Samaritan 128, 130 Same-sex marriage 10, 10n, 17, 134, 135, 137–139, 223, 234, 252 SAS v France 88n Scientific method 10, 53, 105 Secular 3–18, 38, 42–67, 73–91, 95–99, 102, 104–106, 104n, 112, 119, 125–141, 148, 148n, 149n, 152, 155, 159n, 166n, 167n, 177, 178n, 179, 180, 185n, 187, 208, 219– 221, 224, 255, 261, 267, 268n, 269–271, 269n, 272n, 273, 273n, 283, 288 Secular state 3–18, 38, 42–67, 75, 95–97, 148n, 149n, 159n, 166n, 167n, 219–221 Secularisation 3, 3n, 97, 97n, 148 Secularism 3–6, 3n, 5n, 6n, 8–12, 8n, 9n, 11n, 12n, 15, 16, 18, 73, 76–80, 76n, 83, 85, 90, 96, 108, 147–168, 267n, 268, 268n, 269, 271–273, 272n, 280n, 282n, 283, 286n, 287–290, 287n Segregation 14, 75, 79, 88, 91 Separation 4, 6n, 8, 11n, 12, 25, 45, 48, 50, 75, 79, 100, 148, 150–152, 151n, 152n, 175, 201, 205, 220, 221, 231, 243, 243n, 244n, 272 Separation of Church and State 6n, 205 Separation of state and religion 62, 220 Separatism 151, 152 Serbia 149, 149n, 183 Shincheonji Church of Jesus Christ 62, 66 Siracusa principles 47 ‘six arrows’ 158 South Africa 4, 11n, 15, 16, 217–231 South African Constitution 16, 218, 220, 221 South African Religious Charter 222 Sphere sovereignty 29, 29n State interest 187 State religion 16, 18, 148, 152, 157, 162, 207, 220, 234, 281, 289 Statutory human rights charters 249, 261

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index Stigmatisation 63, 64n Subsidiarity 29, 29n Tablighi Jamaat 64n, 65, 273, 273–276n, 275–278 Tarikat (Sufi brotherhood) 160 The Golden Rule 130, 131, 131n Tolerance 6n, 8, 79, 84, 85, 89–91, 182, 217, 228–231, 229n, 237, 270, 271, 281, 288 Toleration 7, 8n, 12, 21, 23n, 24, 27n, 154n, 155n, 203–205, 218, 270, 270n, 271n, 288n Turkey 11, 11n, 15, 16, 75, 77, 77n, 78, 78n, 84n, 86, 86n, 87, 87n, 149, 149n, 150, 156–161, 157–162n, 168 U.S. Constitution 173–189

United Kingdom 4, 15, 46, 50, 51, 75n, 84n, 95, 192n, 195, 198n, 201, 210, 212 Untouchability 272, 283 US Supreme Court 66, 176 Vaccination 13, 51, 53, 53n, 66 Vinayak Damodar Savarkar 279, 279n Wales 13, 14, 30, 95–97, 96n, 99–102, 104–106, 105n, 108, 108n, 109, 109n, 111, 111n, 115, 116n, 117n, 118, 125, 125n, 133, 137, 200, 205, 250, 257, 259 Worldview 8, 105–107, 109–113, 109–113n, 136, 137, 140, 141, 275 Worship 13, 24, 33, 43, 46–50, 53, 56–61, 66, 95n, 96, 96n, 101n, 105n, 152, 157, 206, 206n, 224, 225, 236, 249, 267, 270, 273, 288

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