Donlu Thayer is a Senior Fellow at the International Center for Law and Religion Studies. Before her retirement at the end of 2019, she was the Center’s Publications Director. This blogpost is modified from Thayer’s Introduction to Law, Religion, and Freedom: Conceptualizing a Common Right, which she edited with Cole Durham and Javier Martínez-Torrón, recently released by Routledge as part of its ICLARS Series on Law and Religion.
In September 2016, some 150 international experts in law and religion from 37 countries met at St. Hugh’s College in Oxford for the fourth conference of the International Consortium for Law and Religion Studies (ICLARS). The event was co-sponsored by the International Center for Law and Religion Studies (ICLRS) of BYU Law School, by the Religion, Law and International Relations Programme of the Centre for Christianity and Culture of Regent’s Park College, Oxford, and by the University of Milan.
The conference was organized with attention to the theme ‘Freedom of/for/from/within Religion: Differing Dimensions of a Common Right?’ Two books were developed from papers delivered at the conference and from subsequent conversations related to the theme: Religious Freedom and the Law: Emerging Contexts for Freedom for and from Religion, edited by Brett Scharffs, Asher Maoz, and Ashley Woolley, and the book introduced here, which provides conceptual frameworks for and queries aspects of the theme.
The appearance of this long-awaited volume in early 2021 is timely, as challenges to prevailing ideas about the relationships between governments and the religious freedom of individuals and the autonomy of religious organizations are being tested in ways unprecendented for many who are experiencing them. As a worldwide health emergency drives government policies of restrictions on behavior, it is particularly useful to review the foundations and implications of rights associated with freedom of religion and belief that have been critical over time in influencing relations between religious organizations and governments.
In this regard we may begin by noting an assertion from Professor David Little, even more relevant now than when delivered in his remarks at the 2016 conference.
I hold freedom of religion to be a fundamental right, very much as defined by human rights language. . . . Human rights were explicitly designed as a set of legally enforceable rights and protections capable of preventing the exercise of arbitrary force. … Indeed, it may be said that the whole human rights corpus was a response to a massive abuse … of an appeal to public emergency.[1]
Definitions
Professor Little’s contribution to the book appears as Chapter 2, in the section devoted to ‘Definitions’. Chapter 1 was developed from the conference keynote address by Professor David Novak, who treated the fundamental question: What is religious freedom? Speaking as one who lives and teaches in Canada and who was born and retains his citizenship in the United States, Novak’s perspective derives from his admiration both of the 1983 Canadian Charter of Rights and Freedoms and the older Constitution of the United States (ratified in 1791). And also from another overriding perspective:
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]
With these texts as his base, Professor Novak explores both what religious freedom is and what it is not, deriving the fundamental assertions:
[T]hat freedom of religion is the freedom of traditional religions and their adherents to be ultimately committed to an absolute authority beyond the relative authority of the state. … [And that] freedom for religion mean[s] the right of every citizen to either be a member of one [religious] community or of no such community. … For if freedom for religion is a right rather than a duty, the right-holder has the freedom to either exercise or not exercise his or her right.[3]
In Chapter 2, Professor Little, aware that other strong voices have asserted that freedom of religion, ‘as formulated in the existing human rights code, is indefensible, either conceptually or as interpreted and applied, and where employed necessarily produces morally perverse outcomes’, explores in detail the provisions for freedom of conscience, religion, or belief in international human rights instruments as a basis for considering (and largely countering) the ‘impossibility thesis’ of Winnifred Sullivan and like-minded thinkers.
In Chapter 3, Kurtis Anderson, who as a law student at Emory University was among the Young Scholars invited to present at the conference, takes a critical look at the Edict of Milan, exploring this historic agreement from the perspective that it was ‘a decree, and not an unalterable (or difficult to amend) constitutional document or treaty’. [4]
We note that the 4th-century (313 CE) proclamation we know as the Edict of Milan was in a certain sense the ‘birth certificate for religious freedom’[5], ‘the very first emergence in history of the two phenomena that today we call “religious freedom” and “the secular state” . . . [T]wo crucial elements of a good organisation of political society.’[6] It is fitting that ICLARS—a global network of scholars and experts in law and religion—was founded and has its headquarters in Milan.
In Chapter 4 of our book, American scholar Zachary Calo traces the evolving role of secularism, first as a phenomenon within religion, defined by religion itself, then as a counterweight to religion, and ultimately as the generalized context of the modern state, with an outcome perhaps different from what secularists might expect—not the withering away of religion under pressure from aggressive secularism, but the evolution of a framework at once empty or negative and at the same time open to a variety of undefined points of view. The resulting ambivalence about the normative character of the secular within late modernity may be an ambivalence that vacillates between hope and despair. [7]
Questions
In the second section of the book experts query controversial issues from a number of perspectives and jurisdictions. In Chapter 5, South African scholar Georgia Alida du Plessis asks, ‘Can reasonable accommodation and its own restrictions provide sufficient protection for religious freedom in secular societies? To answer, she calls not for superficial or quick pragmatic solutions but for a deep religious diversity and a constitutional agnosticism that require hard work, active deliberation, and commitment to dialogue, beyond mere tolerance and respect. [8]
In Chapter 6 Andrew Koppelman and Frederick Mark Gedicks draw on their groundbreaking work in other settings, to make a carefully reasoned if, to some, distressing affirmative answer to the question, ‘Is the US Supreme Court decision in Hobby Lobby dangerous for religious liberty?’ They contend that principles articulated by the Court in this significant ruling may make it too easy to visit the costs—the negative externalities—of conscientious beliefs on third parties, thereby severely compromising core values that should be protected by freedom of religion or belief. [9]
In Chapter 7, Javier Martínez-Torrón takes an extensive look at the ‘unclear intersection of rights’ in European Court of Human Rights’ vitally important religious autonomy decision in Fernández Martínez v. Spain. At one level, this is a straightforward case about the tensions between autonomy of a religious community and the rights of someone with divergent beliefs within the community. In addition, however, this is an important microcosm of the way the four dimensions of freedom referenced in the conference theme interact. [10]
In another look at the jurisprudence of the Strasbourg Court and its legal base, Dutch scholar Gerhard Van der Schyff in Chapter 8 considers whether the European Convention on Human Rights guarantees a right to freedom ‘from’ religion in the sense not merely of a right to act in non-religious ways, but also of a right to ‘absence of religion’ in public settings.[11]
Applications
A contribution from Estonian scholar Merilin Kiviorg begins the ‘Applications’ section by postulating in Chapter 9 how the UK’s famous ‘Jewish School case’ might fare before the European Court of Human Rights. She considers the autonomy of religious communities versus the battle for human rights as ‘two sides of the same coin’, a conflict that requires careful balancing of varying interests in specific factual circumstances, ‘if dignity and pluralism are given any value at all’. [12]
In Chapter 10, noted American scholar Thomas Berg takes a comprehensive look at religious challenges for liberty in a dramatically polarized age. Berg warns that if the current troubling political-cultural polarization continues, more and more people will dismiss religious liberty claims as simply cover for underlying policy views. In turn, religious liberty will fail in one of its chief purposes: providing a set of accepted ground rules so people of deeply conflicting identities can coexist, with room to express and live consistently with their identities.[13]
In Chapters 11 and 12, Spanish scholars Montserrat Gas Aixendri and María José Valero Estarellas explore core issues vital to unpacking freedom within and freedom from religion, considering, respectively, the legal implications of religious affiliation and change of religion in a religiously diverse Europe, and the current status of laïcité, neutrality, and freedom of religion and conscience in France.
Gas Aixendri notes that due to planet-wide migratory flows, religious diversity has become an increasingly common fact of life, and the legal consequences of such phenomena as changing religion take on a growing importance in multicultural societies. How should religious law and state law interact at these moments? [14]
Valero asks equally provocative questions as she sketches the situation in France following the Charlie Hebdo incident in Paris in 2015, when ‘laïcité became a dialectic weapon between politicians.’ Which secularism was invoked by those who called for the application of laïcité? , Valero asks. For ‘secularism, laïcité, can be an ambiguous principle.’ Valero’s conclusion is apt: ‘It is important in a time of turmoil to take a calm look at history—recent and remote—to gain perspective that will permit us to interpret the present and plan a future that cannot allow a convulsed present to weaken the freedoms that, with so much effort, were won in the past.’[15]
Predictions
The concluding section of the book makes overall evaluations of the current state of affairs and considers the future of the concepts and contrasts explored in the more than 100 papers and many more conversations during and subsequent to the 2016 conference in Oxford. Such conversations have taken place not only in the traditional venues—classrooms, international conferences, and publications—but now are also reaching, in one of the paradoxical ‘upsides’ of pandemic isolation, larger audiences in the form of global online events.
In Chapter 13, Sophie van Bijsterveld predicts changes, suggesting that, going forward, ‘church and state relationships most likely will be characterized more by differentiation than by formalistic equal treatment, even in states with traditionally highly pluralistic societies and with longstanding traditions of equal treatment of religions.’[16] She describes the social forces that lie behind the ‘impossibility thesis’ that David Little critiques, but her picture is more hopeful, and more likely in the end to align with Little’s critique of the religious freedom skeptics. She sees in the increasing differentiation of society not disintegration but a transformation of equality making it potentially more sensitive to freedom.
Brett Scharffs in Chapter 14 proceeds from the notion that ‘many nations are in the midst of a world-defining struggle between two dramatically different visions of the state and its relationship with its people’: between monism (‘inclined towards various types of statism’) and dualism (the notion that ‘the state is justified in large measure by its success in protecting individual liberty and that government is subject to specific limitations and the rule of law’), providing extensive historical background, analysis, and recommendation.[17]
In conclusion, Cole Durham summarizes the four conceptions of freedom of religion or belief from the 2016 ICLARS Conference:
The differing prepositions suggest different orientations in the connections between the ideal of freedom and the realities of religious life: the freedom that appropriately belongs to religions and is their right; the freedom that religions can avail themselves of in furthering their distinctive missions; the freedom of a secular age that seeks liberation from religion; and the freedom claimed by opposed voices within religions.[18]
Durham worries that religious autonomy—‘understood in the sense of the independence of religious communities in determining their own doctrines, personnel, structures, and missions’ – finds itself in the present moment at a crossroads, where ‘attitudinal streams converge and seek new pathways’ but where the four dimensions of religious freedom are at some risk. Seeing communal religious autonomy as ‘vital to freedom of, for, within and from religion’, Durham asserts the historical lesson that ‘perhaps precisely because of tensions, religious autonomy is one of the most effective tools we have for channeling the influence of conscience in fruitful paths.’
For us in the United States, the ‘pandemic year’ of 2020 arrived in a time of deep and widespread polarization, driving political and social chaos culminating in, but not ending with, the shocking events surrounding the transfer of presidential power in January 2021. At this moment, Professor Berg’s portrayal of how polarization too easily leads to reciprocal discrimination and alienation, instead of finding pathways to common ground, is a poignant observation indeed as this phenomenon continues in personal and political arenas not only in the United States but worldwide.
Our intention and hope are that this book and its companion volume will find timely use in service of the general purpose of ICLARS, ‘to promote the development of studies of Law and Religion all over the world’, and in general to serve those seeking increased understanding of how they may engage with people of good will everywhere, in seeking solutions to critical problems of our times.
[1] David Little, Chapter 2. ‘Freedom of religion: fundamental right or impossibility?’
[2] See David Novak, Chapter 1. ‘What is religious freedom?’
[3] Novak, Chapter 1.
[4] Kurtis Anderson, Chapter 3. ‘The politics of sovereignty: the early modern origins of freedom of religion.’
[5] See Gabrio Lombardi, Persecuzioni, Laicità, Libertà Religiosa. Dall’Editto di Milano alla ‘Dignitatis humanae’ (Studium Roma 1991), 128.
[6] His Emminence Cardinal Angelo Scola, Archbishop of Milan, 6 December 2012, available at Oasis, 9 January 2013, https://www.oasiscenter.eu/en/the-edict-of-milan-initium-libertatis.
[7] Zachary R. Calo, Chapter 4. ‘The secularity of law and the freedom from religion.’
[8] Georgia Alida du Plessis, Chapter 5. ‘Is reasonable accommodation sufficient protection for the right to religious freedom in secular societies?’
[9] Frederick Mark Gedicks and Andrew Koppelman, Chapter 6. ‘Is Hobby Lobby dangerous for religious liberty?
[10] Javier Martínez-Torrón, Chapter 7. Fernández Martínez v. Spain: an unclear intersection of rights?
[11] Gerhard van der Schyff, Chapter 8. Does the European Convention on Human Rights guarantee a right
to freedom ‘from’ religion?
[12] Merilin Kivorg, Chapter 9: Autonomy of religious communities versus the battle for human rights: two sides of the same coin.’
[13] Thomas Berg, Chapter 10. ‘”Christian bigots” and “Muslim terrorists”: religious liberty in a polarized age.’
[14] Montserrat Gas Aixendri, Chapter 11. ‘Managing religious diversity in Europe: Legal implications of religious affiliation and change of religion.’
[15] María José Valero Estarellas, Chapter 12. ‘Laïcité, neutrality, and freedom of religion and conscience in France after Charlie Hebdo: towards a nouvelle neutralité?
[16] Sophie van Bijsterveld, Chapter 13. ‘Equal treatment of religions or differentiation between religions?’
[17] Brett G. Scharffs, Chapter 14. ‘The world-defining contrast between monism and dualism and future of religious freedom.’
[18] W. Cole Durham, Jr., Chapter 15. ‘Religious autonomy at the crossroads.’