James T. Richardson is Emeritus Foundation Professor of Sociology and Judicial Studies, University of Nevada, Reno.
This post is part of a series on the sociology of religious freedom.
A Sociology of Religious Freedom, coauthored by Olga Breskaya, Giuseppe Giordan, and James T. Richardson, offers in part a sociological perspective on the theoretical underpinnings of the role played by the courts, especially in Western societies, in determining the meaning and implementation of religious freedom. It first explicates how and why this crucial role for the courts has evolved in recent decades and then explores specific trends and landmark cases in major judicial systems in the United States and in Western Europe, focusing on the role courts have played in the protection of religious freedom.
The Judicialization of Religious Freedom
In addressing these issues, the volume presents structural, historical, and institutional factors that contribute to court systems playing a major role in the protection of religious freedom (as initially discussed in “The Sociology of Religious Freedom: A Structural and Socio-Legal Analysis”). It notes the historic newness of the concept of religious freedom, focusing on early developments in Europe and especially the United States, which was the first nation to explicitly express such values in its governing documents. The book also draws attention to the structural fact of growing religious diversity in most modern societies, which requires that each government find ways to deal with a typically quite diverse religious and ethnic landscape, and determine the degree of legal pluralism to allow, if conflict and even violence are to be avoided. But governments vary greatly in terms of their pervasiveness, their centralization, the degree of autonomy granted to the court system, the type of legal system (inquisitorial or adversarial), and other relevant factors.
Most Western societies operate with some version of the rule of law and have evolved a system of “checks and balances” that grants shared power to executive, legislative, and judicial branches of government. But sometimes this system does not function well, with either the executive or legislative branches choosing to defer difficult decisions to the courts, a situation political scientists refer to as the “judicialization of politics” (Ran Hirschl). Many Western governments have done this with religious issues, which has allowed for an increased role for the courts in managing religion. This circumstance has contributed to development of what I call the “judicialization of religious freedom,” a concept of particular importance to minority faiths seeking to operate within a society and needing some protections from dominant norms, values, and institutions. There is a clear historical pattern of courts in North America and Europe playing an important role in the promotion of religious freedom through decisions protecting this freedom, especially for smaller religious groups. However, as has been noted by some scholars, such as Damon Mayrl and Dahlia Venny, sometimes courts are limited by other institutional structures in a society in ways that diminish their ability to defend and promote religious freedom. And sometimes the courts themselves decide to withdraw from contentious issues, such as those perceived to involve the management of religion, and allow other institutional entities to make such decisions.
The book also includes an assessment of the way religious freedom is limited by authoritarian regimes in countries such as Russia, China, and Iran, where political power is centralized and pervasive, the rule of law does not prevail, and limited (or no) autonomy is granted to judicial systems. In such societies individual religious expression not aligned with the society’s dominant institutional structures is subject to strong measures of social control and even eradication.
In addition, a brief excursus offers a sociological explanation of why minority faiths can sometimes prevail in judicial systems in societies that operate with the rule of law, even though they lack political connections and may be out of step with the dominant values of society. Such groups are sometimes able to attract important allies when involved in legal actions, and sometimes the courts themselves accept and adjudicate cases involving minority faith to promote their own agendas.
Courts and Religious Freedom in the United States
Our examination of how court systems have dealt with questions concerning religious freedom initially focuses on the Supreme Court of the United States. In a historical first, religious freedom was an explicit guarantee in the U.S. Constitution, and the Court has been responsible for interpreting and applying those provisions, which were initially applicable only to the federal government. But through a long series of cases starting in the 1940s, many involving minority religious groups such as Jehovah’s Witnesses (which have won more than 50 cases before the Court), those provisions have been made applicable to state and local governments as well. These dramatic and sometimes quite controversial decisions have vastly expanded protections for religious freedom for all citizens, contributing to a major cultural shift in America. The initially dominant Protestantism has been forced to accommodate other religious perspectives, including those of Catholics and Jews, while minority faiths have been granted explicit protections to practice and promote their religion.
This somewhat privileged place for minority religions was severely tested in 1990 with the Court’s famous Employment Division v. Smith decision, which ruled that neutral and generally applicable statutes could be enforced even if they infringed on the religious freedom of practitioners. This decision led to a huge outcry from many, leading to the eventual passage of two major pieces of legislation, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA); both acts statutorily reinstated previous protections for religiously motivated actions, and even expanded them to cover such issues as zoning decisions and the regulation of prisons, areas that had heretofore been considered local and state matters. The two acts have raised concerns in some quarters, however, that religious freedom claims may impinge on other protected freedoms. How such conflicts will be resolved remains to be seen and awaits future rulings of the Court and possible new legislation.
Judicial Protection of Minority Faiths in Western Europe
In Western Europe the situation with the courts is similar in some ways but has developed in a very different historical and cultural environment. Some national governments have functioned in a manner that has allowed considerable religious freedom. However, some, such as France, Germany, and Belgium have taken significant steps to limit in a manner that supported efforts of minority faiths to operate, even if the executive and legislative branches disagreed. However, in all Western European nations the courts have been granted some degree of autonomy and have generally used that to support religious freedoms for minority faiths. This more positive approach to religious freedom has also been reflected in actions taken by the two major regional court systems operating in Europe, The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), even though the latter has only in recent years dealt with religious freedom issues. The ECtHR has made use of cases filed by minority religious groups especially the Jehovah’s Witnesses (which have prevailed in over 60 such cases) to expand the meaning of religious freedom in the region. However, the ECtHR has in recent years rendered some decisions (especially the Lautsi decision in 2011) limiting religious freedom for minority faiths, a development referred by some scholars as the ”culturalization of religion” (Lori Beaman).
Challenges to Religious Freedom in Post-Soviet and Eastern European Contexts
The ECtHR has also had to grapple with issues arising from former Soviet-dominated nations joining the Council of Europe, which is the sponsoring body for the Court. Most of these new member nations from Central and Eastern Europe do not have a history and culture that values religious freedom, thus leading to a bifurcated pattern of decisions by the Court depending on the country of origin for a given case (due to the “margin of appreciation” the Court grants to national authorities). This context, plus the effects of the Lautsi decision make predicting the future role of this important court in defending religious freedom an open question. As mentioned, the CJEU also has begun to grapple with these issues, as more nations have joined the European Union (or are seeking membership). However, the jurisprudential pattern developed by the so far is not easy to assess or use to predict future developments with the CJEU. In closing, it should be noted that both the ECtHR and the CJEU (as well as some national courts in the region) have rendered decisions in cases related to Islam that are inconsistent and difficult to understand in relation to other decisions concerning religion made by the courts (In 2003 the ECtHR issued a ruling in Refah Partisi and Others v. Turkey supporting the Turkish government’s decision to dissolve the largest political party in in Turkey for promoting Islamic values and Shari’a. But in 2018 in Mola Sali v. Greece the Court ruled that under certain historical circumstances use of Shari’a law would be acceptable).