Religious Freedom and the Law

Emerging Contexts for Freedom for and from Religion

Brett G. Scharffs, Asher Maoz, Ashley Isaacson Woolley

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351369718
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume presents a timely analysis of some of the current controversies relating to freedom for religion and freedom from religion that have dominated headlines worldwide. The collection trains the lens closely on select issues and contexts to provide detailed snapshots of the ways in which freedom for and from religion are conceptualized, protected, neglected, and negotiated in diverse situations and locations. A broad range of issues including migration, education, the public space, prisons and healthcare are discussed drawing examples from Europe, the US, Asia, Africa and South America. Including contributions from leading experts in the field, the book will be essential reading for researchers and policy-makers interested in Law and Religion.

Part I
Freedom for and freedom from religion

1 Freedom ‘for’ religion

(yet) another view of the Cathedral

Richard W. Garnett¹

In the early 1890s, the French Impressionist Claude Monet composed a series of more than 30 paintings of the towering Gothic Rouen Cathedral in Normandy, France. The artist had rented rooms and set up a studio across the street, with the aim of capturing – over many months – how the fog, rain, dust, and especially – as always, for Monet – the light both affected and carried the appearance, and especially the colors, of the structure’s windows, statues, portals, and arches. As one critic has noted, ‘By focusing on the same subject through a whole series of paintings, Monet was able to concentrate on recording visual sensations themselves. The subjects did not change, but the visual sensations – due to changing conditions of light – changed constantly.’²

I imagine him waking up each morning and, as he throws open the window shutters, wondering, ‘What will I see today?’

About 80 years later, in one of the most-cited American law review articles ever, ‘One View of the Cathedral’, Guido Calabresi and his coauthor Douglas Melamed borrowed the inspiration behind Monet’s Cathedral Series in an effort to provide a unified theory of rights, or ‘entitlements’, and how they are protected by legal rules.³ They noted, among other things, that some phenomena, like ‘legal relationships’, are ‘too complex to be painted in any one picture’.⁴

The theme of the Fourth ICLARS Conference suggests that much the same thing can be said about ‘religious freedom’. While Monet composed around 30 ‘views’ of his Cathedral, the Conference participants presented about a hundred of ours. And while he took advantage of changing seasons, weather, air, and light to emphasize and illuminate the many features and facets of his subject, we used four prepositions – of, for, from, and within – to engage and unpack the different dimensions of ours. Our subject was the moral, human, and legal right to religious freedom. And these four everyday, unremarkable words provided – like four different windows or, perhaps, four different tables outside a café across the street from the Cathedral – different vantage points, from which we can see shades and details that, depending on the light, might be less visible to a colleague watching from another window or sitting at another table. By comparing notes on and sketches of what we saw, we created the possibility of a richer, more complete picture of the whole.

What’s more, these four unassuming connection-words provided us with many more than just four views of religious freedom. Each preposition has many possible meanings, particularly among scholars of diverse linguistic and other backgrounds. We do not all share the same perspective that each preposition provides on religious freedom or that each suggests between ‘religion’ and ‘freedom’. For example, the English preposition ‘for’ can be translated into Spanish as both por and para. In turn, each of those Spanish words encompasses a variety of different English prepositions and phrases.

Context also matters. Take ‘freedom from religion’ for example. As a lawyer working in the early twenty-first-century United States, I tend to associate ‘freedom from religion’ with the aggressive anti-religious stance of some activist groups⁵ and with the view that one has a right to not be confronted or offended by, or even to encounter, unwelcome religious arguments, practices, and symbols in the public square.⁶ However, someone from another jurisdiction or environment might well understand it as the freedom of religious dissenters and minorities not to be coerced or persecuted by the state in the name of official religious orthodoxy or the demands of political unity.⁷ This person’s view of the Cathedral from the ‘freedom from’ window is different than mine.

Similarly, there are lawyers and scholars for whom ‘freedom within religion’ has to do with the authority, and perhaps even the obligation, of the state to regulate the internal goings-on of more traditional religious institutions and communities, so as to bring their practices and rules more in line with those of the liberal state, and to guarantee the ‘freedoms’ of those who may be trapped in or oppressed by those communities.⁸ For me, though, the ‘freedom within’ table at the café affords a direct view – and, in a way, the opposite view – of the crucial right of church autonomy,⁹ of the ancient idea of the ‘freedom of the church’,¹⁰ and of the Supreme Court’s clear, welcome embrace in the Hosanna-Tabor case of the ministerial exception.¹¹ In other words, to consider religious freedom through the lens of ‘within’ is to see the incompetence and the lack of jurisdiction on the part of the state when it comes to church polity and religious affairs.¹² From here, the light does not reveal, to me, a warrant for a progressive rescue mission or for an ambitious state-sponsored renovation scheme of traditional teachings and practices.

Turning to ‘freedom for religion’, one could ask at least three different questions, each revealing new perspectives on religious freedom: The first is, ‘What is religious freedom for?’ What are we trying to do when we enact and entrench protections for this ‘first freedom’?¹³ Is the purpose of our legal religious freedom regimes to, say, advance the very practical goal of promoting civil peace – perhaps even civic virtue?¹⁴ Is it to ‘reduce[] human suffering’¹⁵ or ‘relie[ve]… special mental torment’?¹⁶ Is it to manage religious diversity, mute religious strife, or dampen religious division?¹⁷ Or, as John Garvey contended 20 years ago in What Are Freedoms For?, is its purpose to promote real human flourishing and to make it easier to pursue what is, in fact, a ‘good thing’ for human persons, namely, the search for transcendence?¹⁸

A second possibility: maybe the benefit of the ‘freedom for’ perspective is that it reminds us that it is freedom we should aim to provide for religious persons, groups, and communities – not merely toleration, or a relatively safe haven at the margins, at the pale’s edge, and in private. In other words, we might come to see that to pursue ‘freedom for religion’ is to refuse to settle for privatization, for laïcité, for conditional access to civic life or political participation, or for a ‘naked public square’.¹⁹

Or, finally, the invitation to consider ‘freedom for religion’ as one dimension of the right to religious freedom is perhaps an invitation to ask, ‘What are the necessary or helpful conditions that contribute to making religious freedom a healthy reality? What is needed ‘for’ religious freedom to work, even to thrive?’

***

The Declaration on Religious Freedom, Dignitatis humanae (the ‘Declaration’), issued 50 years ago at the close of the Second Vatican Council, took what was seen by many at the time as a major step: the Declaration affirmed that ‘the human person has a right to religious freedom’ and that this right ‘has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself’.²⁰ That is, the Council fathers insisted, the ‘right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature’.²¹ Freedom of religion, then, is justified in terms of moral anthropology – in terms of an account of who we really are, and what we’re really for – and not in terms of political convenience, benefit, or necessity. It is a pre-political possession, and not a state-granted concession.²²

This idea that religious freedom is a fundamental human right, one that every person, precisely because he or she is a person, enjoys – like the idea that human rights are not mere conventions but are instead implications of the truth about what human persons really are – is a familiar, if not an entirely uncontroversial, one.²³ For many today, even if not for all, what Michael Perry has called ‘the morality of human rights’ is morality.²⁴ On this point, the Declaration could be read as simply echoing the 1948 Universal Declaration of Human Rights, which proclaimed, among other things, that ‘[a]ll human beings are born free and equal in dignity and rights’ and that ‘[e]veryone has the right to freedom of thought, conscience and religion.’²⁵

Some other passages in the Declaration, however, may be less familiar and are, perhaps, more controversial. At first, these passages might not seem to ‘fit’ well with North American traditions of ‘church-state separation’ and official ‘neutrality’. In my view, however, they are intriguing and could help us understand what it means to say, or to embrace, ‘freedom for religion’ – not as authoritative religious texts but as arguments, offered to ‘all people of good will’, about the entailments of the human right to religious freedom.²⁶

Consider, first, these passages:

Since the common welfare [or, the ‘common good’] of society consists in the entirety of those conditions of social life under which men [and women] enjoy the possibility of achieving their own perfection in a certain fullness of measure, and also with some relative ease, it chiefly consists in the protection of the rights… of the human person.²⁷

The protection and promotion of the inviolable rights of [the person] ranks among the essential duties of government. Therefore, government is to assume the safeguard of the religious freedom of all its citizens, in an effective manner, by just laws and by other appropriate means. Government is also to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties.²⁸

Government therefore ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the [common good].²⁹

Taken together, these passages make a claim that is an interesting and perhaps unsettling one, particularly for someone engaged in the law-and-religion enterprise in the United States: that it is the business and duty of government to promote and secure the ‘common good’ of society, and this task includes not only preventing violations of persons’ rights, but also helping to create conditions in society that are ‘favorable to the fostering of religious life’.³⁰ A government that is doing its job, in other words, is not blind or indifferent to the existence and the flourishing of the ‘religious life of the citizenry’.³¹ Instead, such a government will, again, ‘take account of the religious life of the citizenry and show it favor’.³²

Constitutional law in the United States can take on board pretty easily the Declaration’s statements about the foundations of religious freedom in the objective dignity of the human person.³³ But what about this latter claim, about ‘creating conditions’ and ‘showing favor’? Is this an atavistic or reactionary call for throne-and-altar arrangements, or an anachronistic embrace of the old notion of cura religionis, that is, that ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Introduction: Freedom of/for/from/within religion: conceptually inseparable rights
• Part I Freedom for and freedom from religion
• Part II Emerging Social Contexts
• Part III Emerging Regional Contexts
• Index