Jaclyn Neo is an associate professor and the director of the Centre for Asian Legal Studies at University at the National University of Singapore. The following post is based on her remarks during the panel “Understanding Religious Freedom: Why Does It Matter?” at the ICLRS 31st Annual International Law and Religion Symposium, 7 October 2024.
Despite the long-established provenance and reach of religious freedom discourse, religious freedom remains an under-fulfilled promise in many contexts and has been under siege in others. Reports by international organizations, government agencies, and nongovernmental organizations point to continuing violations of religious freedom worldwide. As a result, former United Nations Special Rapporteur on freedom of religion or belief Heiner Bielefeldt has called religious freedom a “human right under pressure.”[1]
Some have even questioned whether religion is fundamentally inconsistent with human rights, particularly equal protection for women and minorities. Religion has been criticized as a source of oppression of the human rights of women and minorities, including sexual minorities and religious minorities (where oppressed by majority religions). Others question whether religion should even be treated as a special category. For them, there may be good reasons to tolerate limited claims of conscience in general without giving special status to religion. Indeed, there is a sense that a voluntarist conception of freedom of religion has unnecessarily narrowed its scope to simply a matter of freedom of choice, in which case it is questionable whether the need for a separate category of freedom of religion still exists or whether the right to freedom of religion could be subsumed under other human rights, including the right to freedom of association.
However, in truth, despite and sometimes due to these challenges, it has become even more critical to strengthen and reclaim the right to religious freedom in this highly fragmented world. In my view, we need a conception of religious freedom that is more pluralistic, more contextualized, and better understood as a common good for all. This goes beyond the conception of religious freedom as an individual right to one that is built on group and community rights and would benefit society as a whole.
Toward a Pluralistic Contextual Conception of Religious Freedom
First, we must recognize the need for contextualized calibration of the balance between individual and community rights. The protection and promotion of the right to freedom of religion entails complex overlapping and sometimes conflicting claims among different constituents—individuals, religious communities/groups, and states. How this right is operationalized varies widely across countries and regions. Accordingly, the optimal operationalization of the right may need to be calibrated at times for different jurisdictions, even while we maintain a commitment to the core aspects of the right. Factors for divergences include the constitutional relationship between state and religion, the type of political regime, its stability, sociohistorical factors such as religious demography, the nature of the dominant religion, and the historical relationships among religious groups, as well as the regime’s commitment to international human rights treaties. In some more communitarian contexts, there may be a need to move away from a hyper-individualistic approach favored in some contexts to a more community-sensitive approach that still provides a level of protection for individuals.
Second, religious freedom advocates need to find ways to reach across ideological divides in contestations about the scope of religious freedom. As a starting point, we must avoid a simplistic East-West divide about the nature and importance of religious freedom. Pluralizing our sources of meaning for religious freedom is critical to expanding the focal points of the concept; Saba Mahmood argues that European historiography sees “the symbolic birth of the concept of religious liberty [as] deeply intertwined with the establishment of the principle of state sovereignty, territorial exchange between warring parties, and the creation of an inter-state protocol for handling what used to be called religious dissidents.”[2] But conceptions of religious liberty do not have to be tied to this historiography. The drafting history of the Universal Declaration of Human Rights itself reflects a mix of ideological motivations and intellectual influences from secular and theological sources, with contributions from multiple sources. A growing body of work traces conceptions of religious liberty outside of the European context. Kevin Tan notes, for instance, that the first constitutional guarantee of freedom of religion in Asia dates back to Article 28 of the 1889 Meiji Constitution, which provides that all Japanese subjects “shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief.”[3]
Third, we need to recast religious freedom as both a human right and a common good. As a common good, religious freedom benefits not only religious individuals and groups but also nonreligious individuals and groups insofar as they set the necessary rules of engagement for peaceful coexistence. The challenge often is to convince religious majorities that religious freedom is necessary to protect their own rights in addition to the rights of religious minorities. This has become increasingly challenging in the face of rising religious nationalism, which has politicized religious freedom, embroiling it in the political contestation between majority and minority groups. In proclaiming a unitary “national” identity based on a single religion, religious nationalists strengthen efforts to characterize new or alternative religious strains within the majority religion, or even their perceived opponents, as “deviant” or “heretic.” In striving to protect their privileged status, religious nationalists would seek to impose laws that restrict the rights of minorities to profess, manifest, and practice their religion.
This would also mean that changes in religious composition and new practices should not be seen as attacks on religious and national identity or even of one’s culture but simply as part of social change. Such religious coexistence through religious freedom ensures a more socially and politically stable entity, through which all can better realize the good life. Indeed, the banning of the headscarf and face veil in European countries such as France, Germany, and Austria reflect a static view of culture and in many ways a failure of religious freedom to respond dynamically to social changes. To allow the state to limit religious practices of immigrant groups considered discordant to a dominant culture denies the applicability of religious freedom to all. This points to a regrettable irony since early conceptions of religious freedom in Europe emerged precisely from the need to protect religious minorities.
Conclusion
A pluralist account of religious freedom is ultimately a celebration of religious diversity as integral to a shared peace and prosperity of each nation. This is an inclusive, contextualized, and pluralistic idea of religious freedom that seeks to build bridges and cooperation across ideological divides. Religious majorities would have to see that protecting the religious freedom of minority groups also benefits them, as it ensures peaceful coexistence for human cooperation and flourishing. Different beliefs and different ways of practicing religion should not be seen as a personal affront but as deeply held disagreement that should nonetheless be tolerated for the greater good.
We must also understand and promote the importance of continuously building consensus horizontally over time, rather than insisting that religious freedom is a self-evident claim that can be ideologically imposed top-down. This means we need more dialogue and more local empowerment. There simply is no silver bullet to social strife and religious hostility, nor is there a single solution that works for all contexts. We need to be open to developing legal-political principles that are sensitive to the particular communities in each country while holding firm to the core values of religious freedom that allow for conscience and coexistence. This is a time for creative and contextualized answers to the possibilities of a pluralistic conception of religious freedom.
References:
[1] Heiner Bielefeldt, Freedom of Religion or Belief – A Human Right Under Pressure, 1 Oxford J. L. & Religion 15 (2012).
[2] Saba Mahmood, Religious Freedom, the Minority Question, and Geopolitics in the Middle East, 54 Comp. Stud. Soc’y & Hist. 418 (2012).
[3] Kevin YL Tan, The Right to Freedom of Religion: An Historical Perspective from Asia, in Routledge Handbook of Freedom of Religion or Belief 27 (Silvio Ferrari, Mark Hill QC, Arif A. Jamal & Rossella Bottoni eds., 2020).