David Kenny is Professor in Law and Fellow at Trinity College Dublin. This post is based on a presentation given at “The Role of Religion in Constitutional Identity,” a workshop cosponsored by the ICLRS, Bar-Ilan University’s Faculty of Law, and the Journal of Law, Religion and State at Christ Church, University of Oxford, 15–16 July 2026.
This post explores the question of whether, and in what conditions, a state might establish an official religion while still guaranteeing freedom for minority religions. I address this question by advancing a (very brief) case for an approach to church-state arrangements and religious freedom based on philosophical pragmatism that offers a clear—if not necessarily immediately helpful—answer. The please excuse the fact that the arguments presented below are necessarily succinct, due to the constraints of the blog format.
A (Very) Short Account of Philosophical Pragmatism
Pragmatism is an epistemologically skeptical philosophy, developed by William James, Charles Sanders Pierce, John Dewey, and others, and later expanded on by many others, including Richard Rorty and Hilary and Ruth Anna Putnam. It can, per James, be thought of as “a certain theory of truth” (Pragmatism, 32). A theory that grand truth is not, with any certainty, available to us (at least on this side of the veil), it counsels that we should not be guided by any theory or principle that tries to supply wisdom above or beyond experience.
Pragmatism is, James said, the “the attitude of looking away from first things, principles, ‘categories,’ supposed necessities; and of looking towards last things, fruits, consequences, facts” (id.). It wants to avoid “the faults of remoteness and abstractedness” in our thought by focusing on that which we experience (id. 40). It suggests that the world is too complex, multifarious, and unknowable to be encompassed and understood by either theory or principle. The world can be known only imperfectly and from experience; we have to live and see the world in action to begin to understand it. Since the knowledge of experience is always partial, the world cannot be fully understood or predicted. Since that knowledge is also different—experience, and the lessons drawn from it, will differ widely between people—we cannot expect to reliably share uniform views or answers outside of particular contexts.
In a world this multifarious and complex, pragmatism tells us, what really matters is our ends: the goals that our experience tells us we must pursue. Our beliefs about what should be done “are really rules for action” (id. 259), and we should judge our beliefs based on their results: the extent to which, when put into practice, they achieve the goals we think most important for society. We make a grave error when we lose sight of this and instead adhere to beliefs and practices because theory or principle told us we ought to, even when these practices interfere with or cut against our important objectives.
Pragmatism’s instruction, then, is simple: we must try to see our ends clearly and act to advance them in the real circumstances in which we find ourselves, rather than acting by reference to some abstract standard of the good.
Though pragmatism arguably originated with legal thinkers (I am specifically thinking of Nicholas St. John Green), and some scholars have applied it to law and constitutional thought, much remains to be done to understand law pragmatically. Indeed, I believe pragmatism is the most useful frame for conceiving of the law and offers great insight into questions of established religion and religious freedom.
A Pragmatic Approach to Freedom of Religion and Church-State Arrangements
The inadequacy of theory. Constitutional law and theory scholars in many parts of the world—those with predominantly enlightenment-liberal worldviews—have long aspired to formulate a principled or theoretical way to deal with religion and law. But such attempts—based on stipulation of “harm” to others, state neutrality, distinctions of the public and private sphere—ultimately fail to provide a general, theoretical basis for action. This is unsurprising from the point of view of pragmatism, which says no theory or principle can give an acontextual “correct” approach to questions that are pragmatic, purpose driven, and deeply contextual.
Though not identifying their arguments as pragmatist,[1] several prominent scholars have argued, persuasively in my view, that the idea of a right to religious freedom is not coherent or theoretically explicable. Winnifred Fallers Sullivan argues that religious freedom, in a strong sense, is “impossible”: any action could be done with a genuine religious motivation, and adjudicating which claims are valid religious claims cannot be done without high privileging some particular, dominant kind of religious practice (The Impossibility of Religious Freedom, 3–8). In many legal contexts, the result has been the promotion of a “protestant” idea of religion as “private, voluntary, individual, textual, and believed,” which downplays any religious practice that centers public action (id. 8). Fallers Sullivan concludes that “legal protection for religion is certainly theoretically incoherent” (id. 10).
Steven D. Smith makes a similar argument and extends it to the regulation of the relationship between church and state. He asserts that “no adequate theory is or will be forthcoming” to specify the relationship between law and government, as any potential theory will “tacitly but inevitably privilege, or prefer in advance” either one particular religious view of the role of religion in society or will privilege a secular position on this question over all others (Foreordained Failure, 60–63). That is, working out questions about this relationship requires the stipulation of some matter that is in dispute: how much public religion is part of a life well lived and a society well constituted (id. 67–68). Such a theory cannot be neutral, but rather, in the guise of theory or principle, will stipulate one or more angled and partial positions that are to be taken to be neutral. This explains what Smith calls the “confusing, and seemingly confused” judicial pronouncements on religion: they are trying to do the impossible (id. 8).
Supposedly principled resolutions will be shown, over time, to be one of two things. First, they might be statements of conflict posing as resolution, insofar as someone will eventually object that their religious attitudes are oppressed by the angled and particular resolution that is nested within the theory.[2] Second, they may be too vague to be meaningful: the terms of the compromise are unclear and must be worked out in time, and at the point of specification the attempted compromise falls into the traps that Fallers Sullivan and Smith identify.
Fallers Sullivan and Smith do not advocate pragmatism as a way of thinking about these questions, but their critiques show the bite of the pragmatist case: theory and principle will not work to solve these problems. The pragmatist would then say we have to clarify our goals—understand the purpose of protecting religious freedom and regulating church-state arrangements—and consider how best to advance them.
The pragmatic purpose of religious freedom and church-state arrangements. A key insight of pragmatism is that purposes are a function of experience and so vary across time, place, and people. As such, there can be no coherent purposes for protecting freedom of religion and regulating church-state arrangements in general. Context, in pragmatism, is everything; therefore, if I were to reify one purpose, or say that one purpose is the general reason behind such measures, I would betray the philosophy that grounds my case. Societies could and do have various purposes and priorities in dealing with these issues. I will suggest, however, that a similar purpose underlies many such efforts, particularly in the broadly enlightened-liberal societies where this is often discussed: the preservation of religious or civic peace.
Any ideology or cause can divide a society and disturb civic peace, but religions—as what Rawls called “comprehensive doctrines” that make privileged claims to truth—may have significant potential to do this more than more minor doctrines. Oliver Wendell Holmes warned that “between two groups that want to make inconsistent kinds of world I see no remedy except force” (The Pollock-Holmes Letters vol. 2, 36); competing religious groups, including advocates of secularism, may each want to make a world, and force is something we are, in general, keen to avoid. Even with less severe conflict, avoiding open and deep social division between competing religious groups will generally allow a state to develop or build consensus on other social goals in a more effective way. To put it another way, many contemporary societies that have conflict around such questions want, above all, to find a way to live together without these questions coming to a head.
Threats to religious peace can come from either side of a religious divide in a society: majority or minority, and religious or secular groups. Majority groups may assert their worldview or practice so strongly that minority groups feel oppressed and dominated, causing friction with and resistance from those other groups. Contrariwise, if not given sufficient space to act out their majority preferences, or if subjected to minority preferences they find intolerable, a majority group may resist this and aggressively assert their beliefs in a manner that causes conflict with other groups. Whatever combination of factors causes the breach, and whatever blame one may wish to ascribe to various groups for causing this rupture, many societies would find the resulting conflict worth avoiding where possible.
It is obvious religious freedom and church-state arrangements could either ease or exacerbate such conflict. But it is equally obvious that this relationship is complex and not entirely predictable. Granting minority religious groups freedom for religious practice, within whatever form is tolerable to the majority of that society, is likely to avoid conflict in many cases. But in certain cases, depending on social dynamics, granting those freedoms may prove intolerable, cause backlash, and cause the kind of severe conflict between groups that we seek to avoid. With church-state arrangements, one can imagine societies where a secular state is essential to preserving religious peace. One can equally imagine a society where establishment is essential to avoid a conflict led by a majority religious group that demands recognition of their faith and public space in which to act it out. One can also imagine, based on complex dynamics of various societies, many points along a spectrum in between, where certain levels of church-state entanglement would promote religious peace in that particular context. The same arrangement, in another context, might cause conflict.
Understood like this, by reference to this overarching purpose, any church-state and religious freedoms compromise that advances the goal of religious peace (and does not compromise other equally important purposes and goals of a community or society) may be acceptable. Nothing is ruled out a priori, and only in context of and by reference to these contextual social purposes does some arrangement become either acceptable and necessary or unacceptable and intolerable.
A Pragmatic Answer to My Question
Following this, the pragmatic answer to the question of whether, and in what conditions, a state might establish an official religion while still guaranteeing freedom for minority religions is clear: establishment and religious freedom can coexist without any theoretical problem, but in reality this requires a particular context and circumstance in a society—perhaps a rare one—where this is the most effective and acceptable way to advance the local pragmatic goals of religious arrangements in constitutional law. In light of the goal of religious peace discussed above, that would mean a state can establish a majority religion while respecting the religious freedom of minority religions where the following requisites apply:
- The establishment of the majority religion can be done without creating such division and discord that religious peace will be disturbed. This is likely to be a function of the scale of the religious majority and the nature of the religion in question but might also depend on many other factors.
- The idea of protected religious freedom is understood as pragmatically defined by reference to that which is necessary to avoid disturbing religious peace on either side.
- And each side can accept or acquiesce in the arrangement—that is, the minority group can abide the establishment and any preference it entails, and the majority group can abide the freedom offered to the minority—and conflict will not result. Both majority and minority might consciously or subconsciously see the benefits of religious peace between them and make compromises to preserve it.
As I noted at the start, I think this is a clear answer; I do not know that it is a very helpful one. Perhaps, in practice, very few societies are in this position. Even if such societies exist, the hard part is not figuring out that this settlement is possible in general; it is executing, in practice, the required but incredibly complex and difficult balance between religious groups, in a situation of uncertainty about exactly how certain groups will react to different arrangements. In a world where little is certain, where stakes are high, and where judgment, as Hippocrates told us long ago, is ever difficult (The Aphorisms, 29), I think this may be the most that theory can ever do for us.
References:
[1] Stanley Fish arguably is overtly pragmatist (though would probably prefer to be termed an anti-foundationalist) and makes similar arguments in the church-state space. See Stanley Fish, Liberalism Doesn’t Exist, DUKE LAW JOURNAL 997 (1987); STANLEY FISH, THE TROUBLE WITH PRINCIPLE, at chs. 8–13 (Harvard University Press 1999).
[2] I borrow this concept from J. A. G. Griffith’s famous essay on the political constitution of the UK, where he said that Article 10 of the ECHR was “the statement of a political conflict pretending to be a resolution of it.” J. A. G. Griffith, The Political Constitution, 42(1) THE MODERN LAW REVIEW 1, 14 (1979).