Constitutionalism, Democracy and Religious Freedom

To be Fully Human

Hans-Martien ten Napel

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780367224202
• eBook ISBN: 9781317236900
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

1 In Medias Res: Communal Religious Freedom under Pressure

Introduction

In the spring of 2015 I attended a lecture by Mary Ann Glendon at the Catholic Center at New York University on “Religious Freedom: Yesterday, Today and Tomorrow.” In the lecture Glendon, a Professor of Law at Harvard University and a former U.S. Ambassador to the Holy See, argued that in the United States religious freedom is well on its way to becoming a second-class human right (2015; see also Evans, Petkoff, and Rivers 2015).

At first sight this may seem unlikely, as the United States can in many respects be regarded as the birthplace of the modern right to freedom of religion or belief. Also, religious freedom is not just regulated in the so-called First Amendment to the U.S. Constitution, but also more generally often referred to in America as the “first freedom.” This was what I expected to find out once again when I traveled to the United States to study the topic of “Law and Religious Freedom.” Obviously, the United States is an open society, characterized by a considerable degree of pluralism from the time it was founded. Still I believed that the importance of the right to freedom of religion or belief would be at least one thing that Americans had continued to hold in common; that the sense that this is a special right, as it is foundational to various other rights such as the freedoms of expression and assembly and association, would somehow remain stronger here than back home in Europe.

Glendon mentions several reasons as to why the right to freedom of religion or belief can nevertheless be regarded as being on its way to becoming a second-class right in the United States. One reason is that increasing hostility towards religion can be discerned among opinion leaders, especially in the media and academia. In so far as academia is concerned, to which I will limit myself, this was to a certain extent already noted in the introductory chapter. In all fairness, however, it needs to be added that some of the new critics of religious freedom certainly do not exhibit any hostility towards religion itself.

A second reason that Glendon mentions for the development of the right to religious freedom towards becoming a second-class right, and which is worth singling out here, is that support for this right among the population at large is also eroding. In her opinion, this has to do with the cultural and social revolution that took place during the 1960s, which led to the rise of what Canadian philosopher Charles Taylor calls “expressive individualism” (2007: 473–95). Symbolic of this development is that increasingly at funerals the song “(I Did It) My Way,” made famous by Frank Sinatra, is played (Glendon 2015: 7).

Somehow, this expressive individualism does not sit easily with the right to freedom of religion or belief as it has traditionally been defined. Of course, this right is certainly also, as many would argue and I agree with in the first place, an individual right. Still, even with respect to its individual dimension it was often invoked in the context of membership of more or less established and institutionalized world religions such as Judaism, Christianity, and Islam. This means that there has also, from the beginning, been a communal dimension to the right.

In so far as our current, postsecular age is characterized precisely by a decline of such institutionalized religions among the population, this could eventually also impact on the way the right to freedom of religion or belief is interpreted by, for example, the courts. This holds all the more true for the associational and institutional dimensions of religious freedom that this book is concerned with in particular. In a postsecular age, of which expressive individualism has become a salient feature, the right to freedom of religion or belief of individuals in its individual dimension can, for example, sometimes clash with the rights of religious associations, groups, and institutions. The question then becomes which of the two should prevail.

Earlier Case Law

Thus, in a 1991 article entitled “Structural Free Exercise” Glendon and Yanes were already arguing that, as far as the United States was concerned, a conception of religious freedom starting from the ideal of individual autonomy had become influential. After a comprehensive survey of the U.S. Supreme Court’s Religion Clause jurisprudence from the 1940s onwards, their conclusion read that “in retrospect . . . the Court was fairly consistent in pursuing an individualistic, secularist, and separationist approach to religion cases” (Glendon and Yanes 1991: 536; see also Glendon 1991).

In a lecture delivered exactly 20 years after her article on “Structural Free Exercise,” moreover, Glendon had to concede that the right to freedom of religion or belief in the West was “at heightened risk from, inter alia, the erosion of conscience protection for religious individuals and institutions, restrictions on the autonomy of religious institutions, and inroads on the rights of parents regarding the education of their children” (2012: 975). Indeed, according to Glendon (978),

[The American] legal system’s neglect of the associational and institutional dimensions of religious freedom, though punctuated with some notable exceptions, seems to be accelerating. As freedom of religion comes into conflict with claims based on nondiscrimination norms, abortion rights, and various lifestyle liberties, the freedom of religious entities to choose their own personnel, and even to publicly teach and defend their positions on controversial issues, is coming under increased attack.

It is important to see that such observations mainly concern the interpretation of the right to freedom of religion or belief by one high court. This court is, moreover, under an obligation to uphold the individual dimension of the right, as religious freedom is in the first instance an individual right. The observation that the U.S. Supreme Court, at least during the first couple of decades after the Second World War, was “fairly consistent” in emphasizing the individual dimension of the right to freedom of religion or belief over its associational and institutional dimensions, among other things, does not necessarily hold true for other courts and international organizations.

Recently, for example, the positions of the European Court of Human Rights (ECtHR) and the Organization for Security and Cooperation in Europe (OSCE) regarding the rights of religious organizations have been analysed. The conclusion of this analysis reads that such organizations enjoy

a clear set of rights under European human rights law. The ECtHR and the OSCE have confirmed the importance of freedom of worship and meeting together through cases involving, amongst others, persecution of believers, imprisonment, interruption of meetings, and confiscation of religious literature. They have also confirmed the importance of legal personality in order for religious groups to be able to function properly. This position also shows that restricting religious freedom because of other concerns, for example the protection of individual rights such as privacy or sexual orientation, or the protection of national security, must be taken very cautiously.

(Langlaude-Doné 2016: 40)

At the same time, and equally relevant in the context of this study, the analysis also demonstrates (40) how

[t]ensions can however be seen in conflicts involving the dismissal of individuals working for religious organisations. There is not always agreement on whether and the extent to which religious groups have obligations and responsibilities under human rights law. The ECtHR and the OSCE recognise that both sides have interests that are in tension. To a large extent, despite a focus on balancing the interests at stake and the application of the principle of proportionality, the ECtHR so far has been very generous to religious autonomy in deciding such matters and in applying doctrinal issues in the employment context. However, the fact that religious organisations are not given complete free reign, as well as the recent narrow majority in Fernández Martínez v Spain, demonstrate that such decisions could change in the future.

Also relevant is law and religion scholar Zachary R. Calo’s observation about the ECtHR’s “identification of religious freedom as a tool for protecting and advancing the goods of democratic pluralism” (2010: 262). Calo concludes (268), on the basis of an analysis of the religion cases, that

[e]ven as the Court defines religious pluralism as the hallmark of the liberal democratic order, this pluralism is locked within the bounds of a secular political narrative. Pluralism thus remains in a tenuous position, easily sacrificed when the Court encounters cases that challenge the predominance of this secular narrative.

Interestingly, the solution he proposes is “pluralization, in particular by opening the idea of human rights to theological perspectives, as one way to overcome the limitations of the secular tradition” (279).

Returning to the United States, leading First Amendment scholar Paul Horwitz, like Glendon and Yanes, discerns as “a common thread” in the First Amendment’s literature and jurisprudence: that “they routinely emphasize the individual and deemphasize the institutional” (2013: 27). Earlier, colleague Frederick Schauer had in this regard already spoken of an “institutional agnosticism” (1998: 107). The most compelling recent formulation of the phenomenon I have come across is by international constitutional and human rights lawyer and religious freedom expert Iain Benson, according to whom the currently dominant “liberal individualistic approach manifests itself in two ways”:

1 It defines or tends to describe the right of religion as an individual right merely, [and]

2 It defines or tends to describe the public sphere in ways that exclude full participation and religious involvement in that sphere. Individualism and exclusionism persist.

(2013b: 8).

What makes this formulation so compelling is not just the fact that it is empirically grounded, as it stems from Benson’s Ph.D. research regarding religious employer exemption cases in two jurisdictions, Canada and South Africa. It is also that it links two topics that at first sight may seem to differ, but which are also dealt with in this book as two interrelated symptoms of the same problem. First of all, the formulation deals with a specific interpretation of the right to freedom of religion or belief and as such it corresponds with the analyses by Glendon and Yanes, Schauer, and Horwitz referred to above. Second, however, the formulation also applies the liberal individualistic approach to the discussion about whether the public square can be considered sufficiently inclusive.

The latter question is dealt with in Chapter 3 of this book, but there is a clear connection with the current chapter. To the extent that religious freedom is interpreted as merely an individual right, the chances are that the potential contributions of religious associations, groups, and institutions to the public and parliamentary debate will also be underestimated. Indeed, a link between the liberal individualistic approach and constitutionalism, as dealt with in Chapter 2, also exists, in that it will lead to an emphasis on the state and the individual, and less so on mediating structures. This is why this book deals with religious freedom, constitutionalism, and democracy in an interconnected way. This is also why the current chapter is not the only chapter in which the question of whether communal religious freedom is under pressure is being explored. Although the case law in religion cases may be the most direct source to search for an answer, analyses with respect to developments within constitutionalism or the state of our democracy are also relevant. In fact, developments in these domains may have gone further already, so that it is more rewarding to look for clues there than in the case law.

Of course, what ought to be repeated here is that the formulation and criticism of a possible liberal individualist common thread in the literature and jurisprudence regarding religion cases is not intended to call into question in any way the fact that the individual dimension of the right to freedom of religion or belief is an essential, and arguably indeed the primary, dimension of this human right. It only wishes to convey the message that there is also a second dimension to the right, and that when the right is interpreted and applied in a particular—individualist—way, this communal dimension can easily come under pressure. This is, however, a matter of interpretation and application of the right, and in theory it is perfectly possible, although naturally not always easy, to balance the two dimensions of the right.

Interestingly, the relative neglect of the institutional religious autonomy principle is usually combined with a conception of the state as the holder of what is ultimately unfettered, sovereign executive power. As Emeritus Professor of Philosophy Roger Trigg has pointed out,

[t]he more the role of the individual is extolled, the more powerful the state has to become, since the role of any protective institutions, even that of the family, to act as buffers between the state and the individual is eroded.

(2012: 12; cf. Schall 2012)

This applies at present perhaps in particular with respect to equality. The paradox at work here is that the more the importance of equality and individual freedom are being emphasized, the more government interference and regulation become necessary to realize these ideals. As a result, freedom is diminished, to the extent that all are now required to subscribe to these ideals, even if this was not the case before the state became involved (Trigg 2012: 51; cf. Garnett 2014: 198; Shah, Farr, and Friedman 2016). As one observer noted,

individual rights to religious liberty and equality, important though they undoubtedly are, do not represent an adequate grounding of principle for the law of organized religions. They fail to capture central parts of the subject-matter, they distort the underlying social reality, they are inherently weak, and they risk capture by a statist agenda that subjects all of civil society to its own ethos.

(Rivers 2010: 322; 2007)

For example, in the report Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (2016), published by the U.S. Commission on Civil Rights, five of the eight commissioners write that new laws and proposals which are being introduced in order to seek exceptions to laws prohibiting discrimination of lesbian, gay, bisexual, and transgender people “represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom’” (160; see also Bachiochi 2016; DeGirolami 2016; Epstein 2016).

Looked at from this perspective, the difference of opinion does therefore not so much concern the importance of the individual dimension of the right of freedom of religion or belief. Nor does the difference of opinion concern the importance of the principle of equality. To a certain extent, classical rights such as the right to freedom of religion or belief are themselves grounded in the idea that all human beings are equal. Also those who regard religious freedom as a natural right preceding the state would probably agree that every person is equally entitled to respect for their human dignity. In so far as in the past the idea of equality has been qualified, so as to exclude particular categories of human beings from their entitlement to equal treatment by the law, this is not just generally but certainly also by many religious traditions regarded as progress. The fact that not all circumstances and situations are equal, so that sometimes difference in treatment is justified and even more desirable than equal treatment, is not something that only these religious traditions tend to emphasize but a more general constitutional principle (Garnett 2012: 197).

The problem then rather appears to consist of the fact that a similar philosophical grounding within the liberal framework as it has developed cannot be found for the associational and institutional dimensions of the right to freedom of religion or belief. As a result, legislatures and courts may be tempted to give priority to the individual dimension of this right, as well as to other individual rights, in cases where these conflict with communal religious freedom. In fact, this is one arg...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction
• 1 In Medias Res: Communal Religious Freedom under Pressure
• 2 Social Pluralist Constitutionalism
• 3 Pluriform Democracy
• 4 A Generous Conception of Religious Freedom
• Conclusion: “A Horizon of Beauty”
• Index