Law, Religion, and Freedom

Conceptualizing a Common Right

W. Cole Durham, Jr., Javier Martínez-Torrón, Donlu D Thayer, W. Cole Durham, Jr., Javier Martínez-Torrón, Donlu D Thayer

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351369626
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines major conceptual challenges confronting freedom of religion or belief in contemporary settings.

The volume brings together chapters by leading experts from law, religious studies, and international relations, who provide perspectives from both sides of the Atlantic. At a time when the polarization of 'culture wars' is aggravating tensions between secular and religious views about accommodating the conscientious claims of individuals and groups, and when the right to freedom of religion itself is facing misunderstanding and erosion, the work provides welcome clarity and depth. Some chapters adopt a primarily conceptual and historical approach; others analyze particular difficulties or conflicts that have emerged in European and American jurisdictions, along with concrete applications and recommendations for the future.

The book will be a valuable resource for students, academics, and policy-makers with an interest in law, religion, and human rights.

PART I

Definitions

1 What is religious freedom?

David Novak

Normative texts

In September 2016, I was honored to deliver the keynote address at the fourth biennial conference of the International Consortium for Law and Religion Studies (ICLARS), held at St. Hugh’s College, Oxford University. To preface my remarks, I confessed to being a citizen of two nations: Canada and the United States of America, explaining that the respective constitutions of my two countries provide me with two similar texts to draw upon when considering the question I would explore: What is religious freedom?¹ I did not draw upon these two constitutional texts as a legal expert arguing them before a court of law, for I am not a lawyer. Rather, I hoped to interpret them in that public forum as a philosophically interested citizen of both countries, who has reasons for retaining the United States citizenship with which I was born, and at the same time affirming the Canadian citizenship I have received due to my choice to be a permanent resident of Canada. Moreover, to be a citizen of either country in good faith, one has to be committed to its body of law, and even learn how to interpret it. As a Jew – which is my pre-political identity transcending citizenship in any worldly polity – I am rooted, and freely accept my rootedness, in an ancient tradition and its body of law: the Torah, and to its method of interpretation as developed in the Talmud. Despite essential differences between them, I am nonetheless accustomed to reading constitutions like I read the Talmud – carefully and cautiously.²

1 A number of points made in this address are preceded in my book, In Defense of Religious Liberty (ISI Books 2009).

2 It is taught that one may interpret (doresh) a secular document, such as a private contract, as carefully as one is to interpret an official religious document (Babylonian Talmud: Baba Metsia 104a).

I mentioned these three personal yet public commitments because of the normative significance of this important international conference. Even if we were not actually proposing prescriptions, surely there would be normative consequences of our work there. Insofar as some of those participating had legal responsibilities as lawyers and jurists, and all of us continue to have political responsibilities as citizens of our respective countries. My hope, fulfilled, was that we could learn from each other in the conference, and enlighten and enhance the exercise of our respective responsibilities on questions of religious freedom.³ Statements having this kind of normative significance, though, are not believable when uttered from (in philosopher Thomas Nagel’s apt words) ‘the view from nowhere’.⁴ That is why I had to state where I come from metaphysically speaking, and where I function politically speaking, before having anything of normative significance to say.

3 More than 100 papers were presented at this conference by scholars from 40 countries. ‘Seldom has a conference theme been as successful as this one in triggering thoughtful and innovative ways of approaching issues that have already been the subject of frequent attention.’ Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, Religious Freedom and the Law: Emerging Contexts for Freedom for and from Religion (Routledge 2018), 1.

4 Thomas Nagel, The View from Nowhere (Oxford University Press 1986).

I began, then as now, with reference to the two authoritative secular texts, both of which pertain to religious freedom, always with an eye to their normative implications. In the older text, that of the Constitution of the United States, its first amendment (ratified in 1791) reads: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’⁵ In the younger text, that of the Canadian Charter of Rights and Freedoms (ratified in 1982), its preamble begins with the words: ‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.’ Immediately thereafter, in its ‘Guarantee of Rights and Freedoms’, the first such freedom is that ‘Everyone has … freedom of conscience and religion.’⁶

5 See John Witte Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (Westview Press 2000), 57–86; Philip Hamburger, Separation of Church and State (Harvard University Press 2002), 101–107; Donald L. Drakeman, Church, State, and Original Intent (Cambridge University Press 2010), 196–262.

6 See Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (University of Toronto Press 2013), 3–21; Janet Epp Buckingham, Fighting over God: A Legal and Political History of Religious Freedom in Canada (McGill-Queen’s University Press 2014), 3–31, 202–225. Compare David Schneiderman, ‘Associational Rights, Religion, and the Charter’, in Richard Moon, ed., Law and Religious Pluralism in Canada (UBC Press 2008), 63–86.

Finally, in this particular instance, there was one more ‘authoritative’ text to be invoked, the text laying out the theme of the conference: ‘Freedom of/for/from/within Religion: Differing Dimensions of a Common Right?’ So, as my assignment to open the conference, and now to introduce this book, I address each of these four questions: (1) What is freedom of religion? (2) What is freedom for religion? (3) What is freedom from religion? (4) What is freedom within religion?

What freedom of religion is not

So, what is freedom of religion? Since the meaning of ‘freedom of religion’ has been so misunderstood, it is important for us to see first just what it does not mean, and how this misunderstanding affects both those who are for ‘religion’, those who are against it and those who are indifferent to it. Only then can we better understand what freedom of religion does mean, so that it can be intelligently argued for, even argued against, or even be consciously ignored, especially in the important church/state debates over the proper role of ‘religion’ in public life.

Freedom of religion in our democratic, pluralistic polities is not what in pre-modern times was called libertas ecclesiae or ‘the liberty of the Church’. There are two reasons for not identifying modern freedom of religion with mediaeval liberty of the Church. First, in pre-modern European polities (that is, in ‘Christendom’), the Church and the State were the two interrelated institutions (‘Two Swords’) that jointly governed society. But, as the state was taken to be ‘secular’ or ‘temporal’, and the Church was taken to be ‘eternal’ (as ‘the body of Christ’), the Church was supposed to be the senior partner in this political relationship, while the state was supposed to be the junior partner. Thus the state was to take its warrant from the Church, not vice versa. (Of course, as evidenced in the throne/altar conflicts of the Middle Ages, the powers-that-be of the State like King Henry II of England in his struggle with Archbishop Thomas à Becket, had other ideas about the balance of power between the State and the Church.) Second, the Church was monolithic just as the State was monolithic. As for groups of un-orthodox Christians, designated as heretics by the Church, they were most often persecuted by the Church with excommunication and by the State with imprisonment, banishment, or execution. As for non-Christian ‘infidels’ like the Jews, they were at best tolerated (usually a matter of contract between the monarch and the Jewish community in their realm), or at worst denied the right of domicile altogether or expelled, even if this had been their right previously (most famously from Spain before 1492). There was no pluralism then at all. Furthermore, after the 1555 Peace of Augsburg, when it was decided that ‘the religion of one’s prince is one’s religion’ (cuius regio eius religio), which divided Europe into Catholic or Protestant states depending on the religion of those having political power, the balance of power in the church-state relationship shifted in favor of the State. Nevertheless, the monolithic role of the Church (whether Catholic or Protestant) remained unchanged. There was still but one official religion just as there was but one official state.

All of that changed dramatically with the introduction of the Constitution of the United States of America in 1789, and the ratification two years later of the first ten amendments to it (the ‘Bill of Rights’). As we have seen, the first amendment to the Constitution prohibits ‘respecting an establishment of religion’. The meaning of these five words has been hotly debated ever since they were published more than two hundred years ago.

Some more radical secularists, no doubt inspired by the French notion of laïcité, have interpreted this to mean that any public role for any and all religions is to be prohibited; and that includes any mention of God as the state’s ultimate authority.⁷ Religious affiliation, which means allegiance to some god, is to be a purely private matter, not to have any public influence, let alone any public authority. These secularists point out that this is consistent with the preamble to the Constitution that begins, ‘We the people of the United States of America.’ That seems to immediately indicate just where the state’s ultimate authority lies.⁸ And, when it is pointed out that the document that made the adoption of the Constitution of the fully independent United States of America possible, namely, the Declaration of Independence of 1776, speaks of ‘all men … being … endowed by their Creator with certain unalienable rights’, they argue that this was only a sop to a predominantly Christian populace by the non-believer, non-Christian Thomas Jefferson. It is also argued that the Declaration has no official status in the United States, irrespective of its undoubtedly great historical importance. Freedom of religion is thus reduced to freedom from religion. Moreover, it could be said that the religion secularists want to be free from is for them a phantom. So, in fact, what they want to be free from is not any religion, but rather from the power and influence of those people who believe the religion they profess is true because the God it proclaims is truth, and thus it ought to be heard in public. (There are radical secularists who even regard the private exercise of religion to be delusional, which like witchcraft, for example, is something the state should be suspicious of when citizens indulge in it and expose their children to its irrationality.⁹)

7 For my critique of this kind of radical secularism in the context of the Kulturkampf between secularists and ‘religionists’ about the character of their society in the State of Israel, see Zionism and Judaism: A New Theory (Cambridge University Press 2015), 153–171.

8 See Alan Dershowitz, America Declares Independence (John Wiley and Sons 2003), 98–103.

9 See Richard Dawkins, The God Delusion (Houghton Mifflin 2006), 325–344.

The radical secularist interpretation of the First Amendment would be more convincing, however, if the clause had read, ‘Congress shall make no law respecting religion.’ But not respecting ‘an establishment of religion’ more l...