Talk About: Law and Religion

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Ambassador Figel shared a story of his efforts to engage the government of Pakistan on freedom of religion and belief. As he explained, his efforts were met with, to say the least, polite skepticism. Finally his interlocutor asked, “What do you want to talk about?” Mr. Figel answered, “I’d like to come and talk about human dignity and how it’s important for all people, at all times, in all places.” With this, there was a noticeable shift, and the voice on the other side of the phone said, “Ah, human dignity, karama, in Arabic. This is an important concept in our holy book, The Koran. Please come. Let’s talk.”  And as Jan Figel explained it to us, that opened the door. It helped build a bridge.  It started a conversation that became increasingly substantive, increasingly candid, increasingly honest, increasingly deep, and ultimately ended in some rather substantial developments in Pakistan, one of which was the release of Asia Bibi, a prisoner of conscience who had been accused of blasphemy.

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Traditionally, religion was thought as something to some extent objective in the sense that most religions had a hierarchy and doctrine—something that was easily identifiable. (I mean religions exercised in Europe; this is not applicable, for example, to Hinduism.) People understood religion as a collective exercise; manifestation of religion was considered as a matter of belief and relation to the religious community, the organized church, and, at the top of this structure, the deity. This approach has already changed. To illustrate the difference, I would like to refer to SAS v. France (2014), the burqa case, where the applicant says that she’s wearing the burqa with the aim of “satisfying herself and her conscience.” Her wish to wear this attire was not based on a religious command but on her personal identity, which allowed certain behavioral modifications. Thus, her religious conviction was understood as a matter of identity. The ECtHR reflected upon that because the Court accepted that wearing the burqa was not simply a freedom of religion issue but also a personal life issue, which is technically correct.

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Security is often associated with politics or military protection. But the OSCE’s approach goes a step further, by adding the concept of a human dimension. This means that countries need to respect human rights not just because it’s an obligation, but also to achieve national security. It also means that governments cannot “buy” political stability or “social harmony” at the expense of human rights. 

In this video, Dmytro Vovk,  member of the OSCE/ODIHR Panel of Experts on Freedom of Religion or Belief and a co-editor of Talk About: Law and Religion, explains why freedom of religion or belief and security should be advanced as non-competitive goals.

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In the event, the Court managed to rule for the believers in Fulton while keeping Smith largely intact. Still, six Justices indicated their dissatisfaction with Smith; two joined Justice Alito’s tendentious opinion that Smith departed from the original meaning of the “free exercise of religion,” while two others joined all or most of Justice Barrett’s short concurrence in which she listed some questions that need answering before the Court abandons Smith. First on her list is Smith as doctrinal outlier: “As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination” (emphasis added).

Justice Barrett thus throws in with the mistaken view that Smith offers less protection to the free exercise of religion than is enjoyed by other First Amendment rights. But, pace Barrett, Smith and Lukumi closely track how the doctrine of other First Amendment freedoms deals with incidental burdens. The free exercise of religion, in other words, is already protected from the incidental burdens of general laws to the same extent as other First Amendment rights.

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Human Dignity Initiative

Celebrating the 70th anniversary of the Universal Declaration of Human Rights with an invitation to a global conversation about preserving and protecting human dignity for everyone everywhere.

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