Law and International Religious Freedom

The Rise and Decline of the American Model

Pasquale Annicchino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351858021
• Edition: 1
• Topic: Jura
• Subtopic: Bürgerrechte

This book analyzes the promotion and protection of freedom of religion in the international arena with a particular focus on the role and influence of the US International Religious Freedom Act, 1998. It also investigates the impact of the IRFA on the legislation and policies of third countries and the EU. The book develops the story of the protection of religious freedom through foreign policy by showing how religious laws affect and shape a more communitarian dimension of the notion of freedom of religion which stands in contrast with a traditionally Western individualistic understanding of the right. It is argued that it is still possible to defend the unstable category of freedom of religion or belief especially when major violations are at stake. The book presents a balanced contribution to the academic debate on the promotion and protection of religious freedom. The comparative approach and interdisciplinary methodology make it a valuable resource for academics, students and policy-makers in Law, International Relations and Strategic Studies.

Part I

The United States and the International Religious Freedom Act

1The first freedom

1.A “shining city upon a hill”: American exceptionalism and religious freedom

In the American political imagination, there is a recurring image of a shining city on a hill, a city that could give rise to a new political order, replacing European violence with a new system of co-existence among people of different religious faiths. This vision is often associated with the narrative of the uniqueness and exceptionality of America in world history.¹

For more than 400 years, this exceptionalism has been one of the fundamental characteristics of the American narrative: the uniqueness of the historic events that gave rise to the birth of the United States of America and which, in the analysis of some authors, assigned to it a special position and mission in the world.² This idea of the “differentness” of the United States is also reflected in its relationships with its peers; hence where in Europe nationality is related with community, the principal carrier of identity in the United States is often ideology. As Seymour Martin Lipset observes: “In Europe, nationality is related to community, and thus one cannot become un-English or un-Swedish. Being an American, however, is an ideological commitment. It is not a matter of birth. Those who reject American values are un-American.”³

Jack Greene reminds us that in fact the genesis of American exceptionalism can be found in medieval Europe, which imagined a place that could redeem the sins and vices of the Old World (Europe), which had been corrupted and which was by then beyond redemption.⁴Many historical events, therefore, can be used to trace back the origins of the founding of the United States. The mission of the first Puritans who landed in New England was to create a new Church and a new society capable of saving a humanity (Europe) that had fallen into disgrace. As Deborah Madsen points out:

In this view, the New World is the last and best chance offered by God to a fallen humanity that has only to look to His exceptional new church for redemption. Thus, America and Americans are special, exceptional, because they are charged with saving the world from itself and, at the same time, America and Americans must sustain a high level of spiritual, political and moral commitment to this exceptional destiny – America must be as “a city upon a hill” exposed to the eyes of the world.⁵

As noted by Steven Calabresi, many references to the “new world” and the “city upon a hill” are actually reinterpretations of biblical passages, particularly from the book of Matthew.⁶ Over the years, rapid social and political changes have led to the emergence and addition of more secular narratives.⁷ American exceptionalism – as with political moralism applied to foreign policy – has thus become a constant in the history of the United States. From the war on communist regimes to the countries of the “axis of evil” named by George W. Bush, its use – at times, its exploitation – as justification for US interventions in other countries has multiplied. And these claims are not seen only in the documents or speeches of Republican presidents: in his first inaugural address, John F. Kennedy himself neatly summarized the characteristics of American exceptionalism – the appeal to God on the one hand, and the desire to rise up to be a model for other countries on the other, being tasked with a mission of almost divine origin:

I have sworn before you and Almighty God the same solemn oath our forebears prescribed nearly a century and three quarters ago […] Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.⁸

This theme was repeatedly invoked by Ronald Reagan as well, who was perhaps the president who most often used the metaphor of the “shining city on a hill.”⁹ Thus this exceptionalism has remained a constant in US political development since the colonists first arrived in New England.¹⁰ This pre-political element deeply informs the United States’ projection of itself and its institutions into the world, and remains an emblematic element of what it means to be US citizens.

The meeting point of the various influences of exceptionalism can be found in the text of the US Constitution which, in Steven Calabresi’s analysis, is the tangible political and legal result of this narrative. It touches precisely on the First Amendment to the Constitution, which also guarantees religious freedom,¹¹ giving it a central position of importance in the promotion of the “politics of liberty” which is typical of the way that the United States – among the various revolutions that distinguish the history of the West, starting with the English Revolution – confronts modernity.¹² The first amendment to the US Constitution is the result of a lengthy historical process of rejecting the experience of the State Church and the religious persecution that many of the founding fathers had experienced in Europe. In this sense, according to the traditional narrative, the primary objective of this provision was to create the first “marketplace of religions,” for the truly equal treatment of all religious faiths, whose sustenance and vigor would have depended solely on the commitment of the faithful, and not the assistance of public powers.¹³ In reality, the history of religious freedom in the United States has demonstrated how easily the persecuted can become the persecutors, and how secular powers and public institutions can be used to build a new State Church.¹⁴ The political and legal journey to full religious freedom is long, even in the United States. It is a journey that continues even today.

2.“First freedom”: The United States and religious freedom

In 1948, after long negotiations, Article 18 of the Universal Declaration of Human Rights of the United Nations was approved, ensuring freedom of thought, conscience, and religion.¹⁵ In 1966, the governments of 167 countries signed the International Treaty on Civil and Political Rights, which also ensures freedom of religion and conscience. In 1981, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief was approved. During this period, the United Nations entered into multiple agreements on the protection of religious freedom. According to Samuel Moyn, the centrality of religious freedom in the history of charters and declarations of human rights can be traced back to the particular period in which these documents were approved. In the case of the Universal Declaration of Human Rights, the insistence on the importance of Article 18 is related to the battle against communist regimes and their policies of state atheism and persecution based on religion and of religious minorities. These policies created a backlash from some American Christian communities, who saw the battle against the atheistic Communist regime as a battle of civilizations in the defense of religion and religious freedom, which was also to be fought through the use of supranational institutions.¹⁶ The religious freedom of the West, then, was a bulwark against the threat of Communist atheism.

Samuel Moyn reflects on its nodal importance in understanding the genesis and mutation of the concept of religious freedom as expressed in the documents of international law, and shows how the US model has played a central role in the internationalization of policies on religious freedom, including within multilateral bodies.

Before considering this perspective, however, it seems appropriate to provide a brief overview of the position of religious freedom within the US legal system, the instruments available for its protection, and its legislative and jurisprudential developments. Starting with the internal dynamics of the United States will help us understand how, over the past several years, religious freedom has become the subject of policies that are increasingly coordinated between different states, becoming a central basis for their foreign policy actions.

The Constitution of 1789 contains no explicit, specific provision regulating relations between Church and State. The only article in the Constitution that explicitly mentions religion is, in fact, Article VI, where it prohibits religious tests or declarations of faith as a condition for taking public office. It was only in 1791 with the approval of the Bill of Rights that the United States became equipped with a catalog of fundamental rights guaranteed to citizens, limiting the action of the state and helping to create a jurisprudence on the protection of fundamental rights which has inspired the legislation of many countries throughout the world. The First Amendment to the Constitution is of particular interest for the purposes of our analysis, since in addition to protecting religious freedom, it also protects freedom of expression, freedom of speech, and the right of citizens to assemble peacefully and petition the government. With regard to religious freedom, under the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The First Amendment is made up of two clauses: the Free Exercise clause, and the Establishment Clause, both aimed at protecting part of the doctrine defined as “First Freedom,” or the right of religious freedom.¹⁷ As John Witte Jr. and Joel Nichols have pointed out, multiple political and theological frameworks and influences led to the approval of the First Amendment¹⁸; furthermore, this same religious pluralism has played a major role in the level of pluralism of the United States experience.¹⁹ On the one hand, it has been demonstrated that religious groups themselves felt the need for a distinction and potential separation between the state and themselves²⁰; and on the other hand, the influence of the thought of Thomas Jefferson,²¹ James Madison, and John Locke²² are certainly worthy of mention.

It should be pointed out that it was only starting in the 1940s, through the interpretative powers of the Supreme Court, that the two constitutional clauses ended up being applied not only to Congress, but also to the states.²³ Despite the fundamental role of the Supreme Court, it should be noted that it exists within a system where the standard of protection provided by the federal system exists side-by-side with the system of protection of religious freedom provided by the various states through the state constitutions and specific Bills of Rights.

In the overall development of the protection of religious freedom in the United States, which is impossible to fully describe here, the Supreme Court Decision Employment Division vs. Smith²⁴ deserves particular attention. This case was the appeal of a federal law prohibiting the use of peyote and other hallucinogenic drugs used by Native Americans during their religious ceremonies. The State of Oregon denied unemployment benefits to two Indians (Smith and Black) who were fired for the illegal use of hallucinogenic substances during the religious rituals of the Native American Church. After a long and complex judicial process, the Supreme Court, with an opinion by Justice Scalia, held that the wording of the law was general in nature and not directed against a specific religious group. Based on this argument, it overturned the decision in the previous case, Sherbert vs. Verner,²⁵ ruling that the primary p...