US Exceptionalism in the Regulation of Religion

This chapter considers the remarkable diversity of American religion from the beginning: the constitutionalizing of religion, the reasons for delayed implementation of the First Amendment religion clauses, the evolution of free exercise and establishment clause doctrine, and the ongoing difficulty of defining religion for US law. What makes US regulation of religion stand out among national legal orders is the dual commitment to federalism and to disestablishment. With a low ‘statism’ and a strong commitment to equality—theological, as well as political—academic expertise has little purchase on the national mind. Religion is what the people say it is. That is a very old story in the US.

Communal Religious Rights or Majoritarian Oppression

This chapter examines the ways in which the tensions around proselytization and conversion highlight some of the conceptual difficulties of liberal theory formulations of religious freedom and the way in which different cultures and religious groups are reinterpreting the traditional conception of religious freedom to better fit their own cultural context. Using case-studies from India and Malaysia, the chapter demonstrates the way in which the indeterminate and open-ended language of international conventions on religious freedom can be both a strength (allowing for areas of cultural difference in a flexible way) and a weakness (with no strong determinate boundaries around acceptable behaviour). The language of ‘public order’ in particular, generally included in both international law and in domestic constitutions as a legitimate limitation to religious freedom, is often invoked to legitimize a religious/ethnic majoritarian agenda.

What Should Freedom of Religion Become?

This chapter takes secularity and freedom of religion as two distinct but interrelated thought-formations and seeks to develop a historical sketch of each. Secularity and freedom of conscience emerge neither as necessary implications of each other, nor as inherently complementary concepts, but as constituent threads of a seam-line that runs along the unity presupposed by the modern state. The secular is a stance or posture towards the religious, from a vantage point of a political unity (however constructed or imagined); freedom of conscience is a carrier for historically and sociologically specific kinds of religious subjectivity. I argue that in both inheres a possibility of profound intolerance, and one way of understanding the tangled history of the interrelationship between secularity and freedom of conscience, is a continuous (and sometimes violent) struggle over the organization and management of intolerance. I propose that a casuistic rather than categorical approach to the concepts and their relationship, might enhance the prospects for a reduction in intolerance and an increase in the concrete possibilities for practical freedom for believers and non-believers.

Too Much Secularism? Religious Freedom in European History and the European Court of Human Rights

This chapter reinterprets contemporary European Court of Human Rights religious freedom jurisprudence in historical perspective, arguing that the decisions upholding headscarf and related bans do not flow from principles that have been connected to an exclusionary secularism for long. Looking back to early modern origins, the chapter first shows that it is mistaken to assume a long-term alliance between religious freedom and ‘secularism’. The chapter then turns to a closer analysis of the 1940s, when religious freedom was internationalized. As in its earliest origins, so also in its mid-twentieth century iteration, religious freedom was not part of a secularist enterprise. On the contrary, religious freedom was historically a principle that was most often intended to marginalize secularism. The Muslim of contemporary jurisprudence has taken the place of the communist.

Citizenship, Religious Rights, and State Identity in Arab Constitutions

Arab constitutions contain some clauses that guarantee religious freedom but others that seem to allow state authorities to determine the way that religion is practised. Such apparently contradictory constitutional clauses are products of a set of historical circumstances and political realities that render their overall effect very coherent. Religious freedom is guaranteed but also circumscribed by the interests of community, official religion, and state—each of which is seen as having its own claims and rights. Understanding the outcome as one of the pull of various actors with rights—and seeing the constitutional text as the place where those rights are specified—helps us to understand how the definition of religious rights does the precise opposite of separating religion and state. Instead, guaranteeing the rights of various actors thoroughly enmeshes religion and state to the extent that they can become difficult to separate even for analytical, much less normative, purposes.

Rethinking Secularism in Europe

Recent terrorist attacks show the extent to which Europe faces a double threat: on one hand fundamentalist religion, on the other negative secularism. France is a paradigmatic example of negative secularism, which attempts to discredit religion altogether. I propose instead that Europe should subscribe to a positive understanding of secularism, which can be understood as a political or as an ethical project. Either way, the point of positive secularism is to distance itself from religion in order to embrace diversity of all types, religious and non-religious. Political secularism relies on the hope of reaching overlapping consensus between religious and non-religious people. Ethical secularism aims instead to protect diversity by promoting the establishment of a marketplace of religions, which acknowledges a public role for religion while regulating it. The marketplace of religions promotes religious pluralism and helps to iron out the different treatments between religions. Ethical secularism aims to be a worldview of worldviews, creating the preconditions for all religious and non-religious people to live well together.

Reimagining Secularism

This chapter offers a cogent defence of secularism against influential postcolonial and cultural difference perspectives. It offers an elaboration and defence of a particular normative variant of secularism, principled distance. The author argues that in order to survive as a transcultural ideal, and to adequately address problems of diversity and domination, secularism should be reimagined as the principled distance of state from religion, in contrast to strict separation and other idealized Western conceptions of secularism. Principled distance can be found in the best interpretation of the Indian Constitution and is a contextual ideal; it requires the state to respect religiosity but oppose institutionalized religious domination. Principled distance offers an example of how secularism can be ‘de-Christianized, de-Westernized, de-privatized, and de-individualized’.