Freedom of Religion and Religious Pluralism 9004504974, 9789004504974, 2023006799, 9789004504967

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ST U DIE S IN R ELIGION,

S R S B 16

SECU L A R BELIEFS

A ND HUM A N R IGHTS

A ND HUM A N R IGHTS

VO L U M E 16

VO L U M E 16

This book brings together a variety of religious and non-religious perspectives on religious pluralism. It explores the key philosophical and legal issues associated with religious freedom and social harmony. Freedom of Religion and Religious Pluralism intends to serve as a valuable resource for scholars specialising in religion, citizenship, and migration studies. It will also act as a reference for courses on law, religion, and human rights. MD JAHID HOSSAIN BHUIYAN, Ph.D., The University of Queensland, Australia, is currently a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law, Germany. He is the co-editor of Religious Freedom in the Secular States: A 21st Century Perspective (Brill, 2022). CARLA M. ZOETHOUT is professor of Constitutional law, Open University, the Netherlands and associate professor at the University of Amsterdam. Recent publications appeared in Md Jahid Hossain Bhuiyan and Darryn Jensen (eds), Law and Religion in the Liberal State (2020) and in Archiv für Rechts- un Sozial Philosophie (2020).

Freedom of Religion and Religious Pluralism

SECU L A R BELIEFS

Religious pluralism is an important aspiration of contemporary societies, meaning that religious diversity is permitted and everyone has the freedom of religion or belief, or not to believe. The peaceful coexistence of people of a myriad of faiths is indispensable for securing peace in the modern era of political upheaval and economic dissonance.

MD JA HID HOSSA IN BHU I YA N & C A R L A M. ZOET HOU T (EDS.)

9 789004 504974

ST U DIE S IN R ELIGION,

ISSN 1871-7829 brill.com/srsb

Freedom of Religion and Religious Pluralism EDI T ED BY MD JA HID HOSSA IN BHU I YA N & C A R L A M. ZOET HOU T

Freedom of Religion and Religious Pluralism

Studies in Religion, Secular Beliefs and Human Rights volume 16

The titles published in this series are listed at brill.com/srsb

Freedom of Religion and Religious Pluralism Edited by

Md Jahid Hossain Bhuiyan and Carla M. Zoethout

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at https://catalog.loc.gov LC record available at https://lccn.loc.gov/2023006799

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1871-7829 isbn 978-90-04-50497-4 (hardback) isbn 978-90-04-50496-7 (e-book) Copyright 2023 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Acknowledgments vii List of Acronyms and Abbreviations viii Notes on Editors ix Notes on Contributors x

PART 1 Religious Freedom from the Perspective of Religions 1

Freedom of Religion and Religious Pluralism: An Introduction 3 Md Jahid Hossain Bhuiyan and Carla M. Zoethout

2

Bhakti and Its Songs: Hindu Devotion as a Gateway to Religious Harmony 16 Neelima Shukla-Bhatt

3

Religious Pluralism and Freedom in Islam 36 Muhamad Ali

4

Religious Pluralism, Religious Freedom, and Christianity 57 S. Mark Heim

PART 2 Concepts and Dimensions in Religious Freedom and Religious Pluralism 5

Religious Freedom as a Human Right 79 Göran Gunner

6

Pluralism, Pastafarianism and the Scope of the Freedom of Religion 101 Paul Cliteur and Carla M. Zoethout

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Contents

PART 3 Issues in Religious Freedom and Religious Pluralism 7

The Turn to Belief and How the Discourse of Religious Freedom Marginalises Minority Religions in Australia 123 Elenie Poulos

8

The U.S. Supreme Court’s New Religious Discrimination Doctrine and the Privileging of “Majoritarian” Religions 147 Frank S. Ravitch

9

Protection against Religious Hatred 168 Luca Farrow and Paul Hedges

10

Church Autonomy in the United States 192 Christopher C. Lund

11

Religious Freedom and the Business Corporation 210 Ronald J. Colombo

12

Legal Approaches to the Individual Manifestation of Religion in the Workplace: A Study of England and Wales 235 Andrew Hambler

13

Walking on a High Wire The European Court of Human Rights and the Challenge of Balancing the Rights to Freedom of Expression and the Protection of Religion/Belief under the ECHR 257 Peter Cumper and Tom Lewis

14

Liberalism, Religious Pluralism, and the Environment 280 P T Babie



Index 307

Acknowledgments We thank all at Martinus Nijhoff (Brill) for their professional handling of the production of this book, in particular Lindy Melman, Bea Timmer, Lauren Danahy and Dirk Bakker.

Acronyms and Abbreviations ACL Australian Christian Lobby BG Bhagavad Gita CADA Colorado Anti-Discrimination Act CJEU Court of Justice of the European Union ECHR European Convention of Human Rights ECtHR European Court of Human Rights EU European Union FoRB Freedom of Religion or Belief GPs General Practitioners HHS U.S. Department of Health and Human Services HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICJ International Court of Justice LGBTQ+ Lesbian, Gay, Bisexual, Transgender, Queer, and Others NSW New South Wales OHCHR Office of the UN High Commissioner for Human Rights OPI Otto-Preminger-Institut OSCE Organization for Security and Cooperation in Europe RDB Religious Discrimination Bill RFRA Religious Freedom Restoration Act RV Rig Veda SDA Sex Discrimination Act TWU Trinity Western University UDHR Universal Declaration of Human Rights UN United Nations UNGA UN General Assembly WRP World Religions Paradigm

Notes on Editors Md Jahid Hossain Bhuiyan is a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL), Germany and an Associate Professor at the Department of Law, Independent University, Bangladesh. He was a visiting scholar at the University of Oxford, UK; Cardiff University, UK; Emory University, USA; and University of British Columbia, Canada. He holds a PhD in law from the University of Queensland, Australia and an LLM from Vrije Universiteit Brussel, Belgium. He has co-edited Religious Freedom in Secular States: A 21st Century Perspective (Brill, 2022), Human Rights and International Criminal Law (Brill, 2022), Law and Religion in the Liberal State (Hart Publishing, 2020), Revisiting the Geneva Conventions: 1949–2019 (Brill, 2020), International Natural Resources Law, Investment and Sustainability (Routledge, 2017), International Trade Law and the WTO (Federation Press, 2013), An Introduction to International Refugee Law (Brill, 2013), Globalization, International Law, and Human Rights (Oxford University Press, 2012), Routledge Handbook of International Environmental Law (Routledge, 2012), An Introduction to International Human Rights Law (Brill, 2010), and International Humanitarian Law – An Anthology (LexisNexis Butterworths, 2009), amongst other scholarly books. Carla M. Zoethout is professor of Constitutional law, Open University, the Netherlands (and head of the department of Constitutional law and Jurisprudence) and associate professor of Comparative Constitutional Law, University of Amsterdam, the Netherlands. Previously, she was a lecturer at Erasmus University Rotterdam, Leiden University and the Free University at Amsterdam. Her research areas include: comparative constitutional law and human rights (in particular the freedom of religion). Recent publications in English: ‘A New Bill of Rights for the UK, Two courts, two “masters”?’, www.iconnectblog.com (2022); ‘Should the Courts Accommodate Religion in the Workplace? The Secular Nature of Europe’s Legal Order and the Role of Supranational Courts’, in: Jasper Doomen, Mirjam van Schaik (eds.), Religious Ideas in Liberal Democratic States, Lexington Books 2021; ‘How to Deal with Religion in the Increasingly Pluralistic European Societies: The European Court of Human Rights on Crucifixes, Facecovering Veils and Disparaging Muhammad’, in: Md Jahid Hossain Bhuiyan and Darryn Jensen (eds.), Law and Religion in the Liberal State, Hart Publishing, 2020 and ‘Populist Resistance against the European Liberal Democratic Order’, Archiv für Rechts- und Sozialphilosophie, Vol 3, 2020.

Notes on Contributors Muhamad Ali is an associate professor in Islamic Studies at the Religious Studies Department, and Southeast Asia: Text, Ritual, and Performance Program, University of California Riverside. He earned a B.A. in Islamic Studies from the State Institute for Islamic Studies, Jakarta, an M.Sc. in Middle Eastern and Islamic Studies from Edinburgh University, Scotland, and a Ph.D. in History from the University of Hawai‘i at Manoa, U.S.A. His publications are Islam and Colonialism: Becoming Modern in Indonesia and Malaya (Edinburgh University Press, 2015), Multicultural-Pluralist Theology (in Indonesian, Kompas, 2003) and articles, including the fatwas on interfaith marriage and interreligious relations. P T Babie is Bonython Professor of Law and Director of the Research Unit for the Study of Society, Ethics, and Law, University of Adelaide. He is a Fellow of the Australian Academy of Law (2017) and a Fellow of the Royal Society of Arts (2021). He is Assistant Editor, Australian Property Law Journal, and Editorial Board Member, Journal of Law and Religion. His work has appeared in leading American law reviews, including the North Carolina Law Review, and the Tulane Law Review, and in leading Australian law reviews, including the Melbourne University Law Review and the Sydney Law Review. Md Jahid Hossain Bhuiyan Ph.D. in Law, The University of Queensland, Australia, is a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL), Germany and an Associate Professor at the Department of Law, Independent University, Bangladesh. Jahid’s primary research areas are public international law, and law and religion. He has co-edited Religious Freedom in Secular States: A 21st Century Perspective (Brill, 2022), Law and Religion in the Liberal State (Hart Publishing, 2020), and Routledge Handbook of International Environmental Law (Routledge, 2012). Paul Cliteur is Emeritus professor of Jurisprudence, University of Leiden, the Netherlands. He was also professor of philosophy at the University of Delft, the Netherlands (1995–2002). Furthermore, visiting professor at Hastings College of the Law in California (2017) and the University of Ghent (2014), Belgium. He wrote/ edited about 40 books including Theoterrorism versus Freedom of Speech (2019), A New Introduction to Legal Method (2022), A New Introduction to

Notes on Contributors 

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Jurisprudence (2019), Populist and Islamist Challenges for International Law (2019), Bardot, Fallaci, Houellebecq and Wilders (2016). He contributed to the Oxford Handbook of Secularism (2017) and the Wiley-Blackwell Handbook of Humanism (2015). Ronald J. Colombo teaches a variety of corporate and securities law courses at Hofstra Law School. His scholarship has focused largely on issues of securities fraud, corporate law, financial regulation, the constitutional rights of business organizations, and religious liberty. Before joining the Hofstra faculty in 2006, Professor Colombo served as vice president and counsel for Morgan Stanley & Co., Inc. Professor Colombo graduated, magna cum laude, from NYU School of Law. He was a member of the Law Review and was elected to the Order of the Coif. He clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit immediately following graduation. Peter Cumper is a Professor of Law at the University of Leicester, where he is Director of Leicester Law School’s LLM programme. He studied previously at the Queen’s University Belfast and at Essex University. He researches human rights, with a particular emphasis on freedom of religion/belief and freedom of expression. His recent publications include: “Empathy and Human Rights: the Case of Religious Dress” (2018) HRLR, and “Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights” (2019) ICLQ (both co-authored with Tom Lewis). Luca Farrow is Research Analyst at the Studies in the Interreligious Relations in Plural Societies Programme, RSIS, Nanyang Technological University, Singapore. He gained an undergraduate degree in History from Durham University before undertaking his legal training. He worked as a solicitor at an international law firm based in London for more than five years, specialising in competition, regulation and disputes, before moving to Singapore to undertake a Master’s degree in Strategic Studies. Now working as a researcher in the field of interreligious relations with a special interest in the nexus between law and religion, he recently co-wrote a short chapter in Dr Paul Hedges’ book Religious Hatred (Bloomsbury, 2021). Göran Gunner is a Senior Lecturer at the Department of Human Rights and Democracy, University College Stockholm, Sweden. He is Associate Professor at Uppsala

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University in Studies of Mission. Gunner has been Researcher at the Church of Sweden Research Department. He is the author of Genocide of Armenians – Through Swedish Eyes (The Armenian Genocide Museum-Institute, 2012) He is also co-editor of books like Freedom of Religion at Stake. Competing Claims among Faith Traditions, States, and Persons (Pickwick Publications, 2019), Human Rights, Religious Freedom and Faces of Faith (Globethics.net, 2019), and Justification in a Post-Christian Society (Pickwick Publications, 2014). Andrew Hambler is a former HR Consultant who is currently Associate Professor in Employment Law and Human Resource Management at Birmingham City University and, since 2021, Head of the Department of Management. Andrew obtained his doctorate from Durham University in 2013. His research is focused on religion and law at work and he has published several articles in academic journals, including the Industrial Law Journal, and a monograph, Religious Expression in the Workplace and the Contested Role of Law (Routledge, 2015). Andrew has also advised religious ethos organisations. He was called to the Bar by Middle Temple in 2019. Paul Hedges is Associate Professor at the Studies in the Interreligious Relations in Plural Societies Programme, RSIS, Nanyang Technological University, Singapore. He has taught in Asia, Europe, and North America, and researches, teaches, and publishes in interreligious studies, theory and method in the study of religion, and contemporary global religious ideologies. He has worked with various media, NGOs, faith groups, and governments. He has published fourteen books and over eighty scholarly papers. His most recent books are Understanding Religion: Theories and Methods for Studying Religiously Diverse Societies (University of California Press, 2021), and Religious Hatred: Prejudice, Islamophobia, and Antisemitism in Global Context (Bloomsbury, 2021). S. Mark Heim is the Samuel Abbot Professor of Christian Theology at Andover Newton Seminary at Yale Divinity School. His books include Salvations: Truth and Difference in Religion, Saved from Sacrifice: A Theology of the Cross, Crucified Wisdom: Christ and the Bodhisattva in Theological Reflection, and Monotheism and Forgiveness. He is a member of the American Theological Society, has cochaired the comparative theology group in the American Academy of Religion, and served on various global and national ecumenical bodies, including the Christian–­Muslim relations committee of the National Council of Churches.

Notes on Contributors 

xiii

Tom Lewis is a Professor of Law at Nottingham Trent University, where he is Director of the Law School’s Centre for Rights and Justice. He studied History and Jurisprudence at the University of Oxford, Jesus College and, before entering academia, he practised law as a solicitor. He researches human rights, with a particular emphasis on freedom of expression and freedom of religion/belief. His recent publications include: “Empathy and Human Rights: the Case of Religious Dress” (2018) HRLR, and “Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights” (2019) ICLQ (both co-authored with Peter Cumper). Christopher C. Lund is a professor of law at Wayne State University Law School, where he specializes in religious liberty, a field in which he has written extensively. His work has been cited in books, articles, and judicial opinions-including opinions of the United States Supreme Court. Before entering academia, Professor Lund clerked for the Hon. Karen Nelson Moore on the U.S. Court of Appeals for the Sixth Circuit, served as the Madison Fellow at Americans United for Separation of Church and State, and practiced law at Dechert LLP in Philadelphia. Elenie Poulos is an Adjunct Fellow at Macquarie University. Her PhD thesis examined the public discourses and politics of religious freedom in Australia and she has had four papers on the topic published. She is a Research Associate at Macquarie University on a project examining religiosity and trust in religious organisations after the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. Elenie is a Minister in the Uniting Church in Australia and was, for 15 years, the director of the Church’s national justice policy and advocacy unit. Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law in Religion at the MSU College of Law. His many books include, Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America (2016); Masters of Illusion (NYU Press 2007); Law and Religion: Cases, Materials, and Readings (West 4th Ed. 2021) (with Larry Cata Backer), School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters (Northeastern 1999, paperback 2001). He is co-author, with Boris Bittker and Scott Idleman, of Religion and the State in American Law (Cambridge 2015). Professor Ravitch’s articles have primarily focused on law and religion, but he has also written about civil rights law.

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Neelima Shukla-Bhatt is a Professor of Religion at Wellesley College, Wellesley, MA. She has a doctorate in comparative religion from Harvard University (2003). The focus of her research is devotional literature of medieval north India, especially its performative aspects. She has also published on Hindu goddess traditions, religious pluralism, and Gandhi. She is the author of Narasinha Mehta of Gujarat: A Legacy of Bhakti in Songs and Stories (New York: Oxford, 2015) and co-author (with Surendra Bhana) of A Fire that Blazed in the Ocean: Gandhi and the Poems of Satyagraha in South Africa, 1909–1911 (Delhi: Promilla, 2011). Carla M. Zoethout is professor of Constitutional law, Open University, the Netherlands and associate professor at the University of Amsterdam, the Netherlands. Her research areas include: comparative constitutional law, human rights (in particular the freedom of religion). Recent publications in English: ‘A New Bill of Rights for the UK, Two courts, two “masters”?’ (2022), www.iconnectblog.com; ‘Should the Courts Accommodate Religion in the Workplace?’, in: Jasper Doomen, Mirjam van Schaik (eds.), Religious Ideas in Liberal Democratic States, Lexington Books 2021; ‘How to Deal with Religion in the Increasingly Pluralistic European Societies: The European Court of Human Rights on Crucifixes, Face-covering Veils and Disparaging Muhammad’, in: Md Jahid Hossain Bhuiyan and Darryn Jensen (eds.), Law and Religion in the Liberal State, Hart Publishing, 2020.

PART 1 Religious Freedom from the Perspective of Religions

∵

Chapter 1

Freedom of Religion and Religious Pluralism: An Introduction Md Jahid Hossain Bhuiyan and Carla M. Zoethout 1 Introduction Freedom of religion is one of the most important rights in the catalogues of fundamental rights and freedoms that have been expressed throughout ­history. Authors such as Georg Jellinek (1851–1911) and Francesco Ruffini (1863–1934) have demonstrated how the idea of religious freedom was closely linked to the development of the democratic state under the rule of law, as it eventually materialised in the modern state. In Die Erklärung der Menschen- und Bürgerrechte1 (1895), Jellinek stated that the French Declaration of the Rights of Man and of Citizens, as enacted by the National Constituent Assembly on August 26, 1789, was based not on ­Jean-Jacques Rousseau’s Du Contract Social as was commonly held, but rather on the bills of rights of American states after the Declaration of Independence of 1776. Jellinek’s ideas later returned in his Allgemeine Staatslehre (1900).2 In particular his thesis that the rights declarations originated in the great conflicts over religion was much discussed. Another influential work, Religious Liberty,3 by the Italian theorist Francesco Ruffini, illustrates the importance of freedom of religion to the development of the Western state. The freedom of religion initially found expression in the human rights declarations which were proclaimed since the Enlightenment and in the various codifications of higher law in the constitutions of national states since the 18th and 19th centuries.

1 Georg Jellinek, Die Erklärung der Menschen- und Bürgerrechte, Vierte Auflage, in Dritter Auflage bearbeitet von Walter Jellinek (München und Leipzig: Duncker und Humblot, 1927) (1895). 2 Georg Jellinek, Allgemeine Staatslehre (Zweite Auflage, Berlin: Verlag von O. Häring, 1905) (1900). 3 Francesco Ruffini, Religious Liberty, trans. J. Paker Heyes with a preface by J.B. Bury (London: Williams & Norgate; New York: G.P. Putnam’s Sons, 1912). © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_002

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Despite the fact that the tradition of natural law goes back to antiquity, and declarations of fundamental rights were presented throughout the ages,4 it took until 1948 for human rights to be recognised at the global level. The most important worldwide text concerning the freedom of religion came about in the post-war period: the Universal Declaration of Human Rights (UDHR), as proclaimed by the United Nations. This declaration was prepared by two other documents. Prepared, not in the sense that these authors were directly involved in drafting the Universal Declaration, but their initiatives influenced the plan to create a universal declaration of human rights. We refer, first of all, to an initiative of the British writer and historian H.G. Wells, The Rights of Man (1940).5 What were the aims of Wells? On the eve of the second world war, Wells formulated a list of human rights as ‘war aims’, which were instrumental in c­ reating the Universal Declaration and, two years later, the European ­Convention of Human Rights (ECHR). A second initiative that should be mentioned in preparation for the UDHR, is the statement by U.S. President Franklin Delano Roosevelt that came to be known as ‘The Four Freedoms speech’ (1941).6 In both documents, the underlying idea was that when citizens are expected to put their lives at risk in a devastating war, the state must be able to express the values it stands for. Those values were labelled the ‘rights of man’ that distinguish a free democratic society from the dictatorship one was fighting. Initially, this dictatorship was that of Nazi Germany, and from the 1950s on the Soviet Union, which, under the influence of Marxism-Leninism, had an entirely different approach to human rights than Western Europe and the United States of America. In Art. 18 of the UDHR, the freedom of religion is phrased as follows: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and ­observance.

4 Jon E. Lewis, ed., The New Rights of Man: An Anthology of the Events, Documents and Speeches that have shaped Civilization (London: Robinson 2003). 5 H.G. Wells, The Rights of Man, or What are we Fighting for (Harmondsworth: Penguin Books, 2015) (1940). 6 Franklin Delano Roosevelt, “The Four Freedoms,” (1941), in The Penguin Book of T ­ wentieth-Century Speeches, ed. Brian MacArthur (Harmondsworth: Penguin Books, 1993), 197–201.

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At least three important dimensions of the freedom of religion can be deduced from this provision. First, the freedom to have a religion is proclaimed as a universal right, together with the other rights in the Declaration.7 This freedom to have a religion includes the freedom to change your religion or belief. The freedom of religion belongs not to a happy few, not to members of some nation states, not to inhabitants of a certain jurisdiction, but to ‘everyone’, wherever, whenever. Second, the (universal) freedom of religion may be experienced by believer(s), in a public context; the freedom to manifest a religion. One may experience one’s religious freedom together with others; by prayer, by following religious rituals, by learning and teaching. In short, everyone must be allowed to express religious convictions in public settings. A third dimension of religious freedom is a typical 20th century achievement. That is to say, it would take until the 20th century before this important aspect of the freedom of religion was noticed. As said, in the first sentence, after the semicolon, it is proclaimed: ‘this right includes the freedom to change his religion or belief’. This right to change religion or belief is an important asset. The reason is obvious: the right to have an opinion is hardly worth mentioning, if it does not include the right to change one’s opinion. The same applies to religious opinion: the right to have a religion necessarily implies the right to change one’s religious belief or life stance. At the time of the UDHR, the United Nations were aware that freedom of religion can only genuinely be experienced when this includes the freedom to adopt a different faith or even to distance oneself from a particular religion. And, one may assume, it also implies the freedom to renounce all religions. Interpreted this way, the ‘right to apostasy’ (as it is commonly labelled) is protected by the very same fundamental right to freedom of religion. At the regional level, the freedom of religion was subsequently adopted in the ECHR (1950), a common human rights treaty for the Member States of the Council of Europe.8 The text of the freedom of thought, conscience and religion in the Convention is largely similar to that in the UDHR, including the right to change one’s religion.9 Even though in legal scholarship the latter 7 See on this: B. van Schaik, “Defaming the Freedom of Religion or Belief” (PhD Thesis, Leiden University, Leiden, 2022). 8 Per September 2022, the Russian Federation is no longer Member State to the ECHR: R ­ esolution CM/Res(2022)2 on the cessation of the membership of the Russian ­Federation to the Council of Europe, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000 1680a5da51 The Council of Europe now includes 46 Member States. 9 Article 9 ECHR: 1. ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.’

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right received scant attention,10 from the very beginning the European Court of Human Rights (ECtHR) made it clear that the importance of the freedom of religion transcends only the interests of religious believers. In a classic judgment about Article 9 ECHR, the case of Kokkinakis v. Greece, the Court expressed a number of values that are intimately connected to the freedom of thought, conscience and religion in a democratic society – a ­society which presupposes the existence of pluralism. Freedom of religion is not only pertinent to religious believers, the Court says in this case, but its importance goes way further: As enshrined in Article 9 (art. 9), freedom of thought, conscience and r­eligion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, ­agnostics, sceptics and the indifferent. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.11 In this one (part of a) paragraph, the Court expresses the extensive meaning of the freedom of religion. It indicates that the freedom of religion is (self-­ evidently) a critical right for the individual religious believer. Moreover, the Court underlines that Article 9 also offers protection to those who are not adherents to a religion, to those who are critical of religions, to those who ­outright reject the theist religions, and to those who are indifferent towards religious belief. This diversity of religious and non-religious beliefs and life stances is what makes up the pluralism of a democratic society: you have the right to worship; you have the right to doubt and you have the right to reject religion. Those are the requirements of a pluralistic democratic society.12 Yet in 2020, at the global level, the General Assembly of the United Nations expressed its concerns about the limited progress that has been made in the elimination of intolerance and discrimination based on religion or belief. In

10 11 12

With the exception of B.M. van Schaik’s thesis, see: Schaik, “Defaming the Freedom of ­ eligion or Belief ”. R European Court of Human Rights, Kokkinakis v. Greece, App. no. 14307/88, 25 May 1993. The cited paragraph is a statement rather than an explanation and the Court itself does not clarify why it interprets Article 9 the way it does. All the same, as was pointed out above, there is a clear basis for this interpretation in text of the provision, which is largely similar to its counterpart in the UDHR.

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a resolution on this freedom, the extensive interpretation by the European Court is being reiterated. In this document, the General Assembly: 1. Stresses that everyone has the right to freedom of thought, conscience and religion or belief, which includes the freedom to have or not to have, or to adopt, a religion or belief of one’s own choice and the freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief in teaching, practice, worship and observance, including the right to change one’s religion or belief (…)13 It is stating the obvious when we observe that the freedom of thought, ­conscience and religion in today’s societies will continue to raise critical ­questions. Some of these questions and how to deal with this preeminent right in various pluralist societies are addressed in the present volume. 2

The Content of This Book

The first part of the book concerns ‘Religious freedom from the perspective of religions.’ Three religions and their approach to religious freedom and ­pluralism receive special attention: Hinduism, Islam, and Christianity. In her chapter, Neelima Shukla-Bhatt discusses the ability of bhakti to encourage intra and interreligious harmony. In ‘Bhakti and its Songs: Hindu Devotion as a Gateway to Religious Harmony’, Shukla-Bhatt mentions that bhakti, which means ‘devotion’, is a vital Hindu practice. She argues that in the medieval period, the initial individual spiritual discipline of bhakti slowly became highly participatory, its innate inclusiveness expanded, and it was expressed in the songs of regional saint-poets. In this form, bhakti highlighted the marginalised voices of Hindu society, creating the means to integrate the distinct traditions in their setting. These intersections enabled the development of a common cultural heritage to continue bringing intense moments of harmony for ­several South Asians. Many people, including Gandhi, have integrated these songs that have inspirational messages on equality, love, and inclusiveness into contemporary social reconstruction and peace-building processes. The ability of bhakti to encourage intra and interreligious harmony has not been fully understood. Shukla-Bhatt argues that bhakti was never a singular social resistance, nor a religious movement. However, it kept shifting through various regions, 13

Resolution adopted by the General Assembly on 16 December 2020, 75/188, N2037353. pdf (un.org)

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religious communities, and media in its musical form, and touched the hearts of numerous individuals who indulged in interreligious exchanges throughout the centuries. Despite being contemporary concepts, religious pluralism and freedom can be examined from varied perspectives; for example, those that concentrate on theological and ethical ideas presented in the Qurʾan and the interpretations derived from commentaries. Thus, Muhamad Ali states in his chapter ‘­Religious Pluralism and Freedom in Islam’. In evaluating ­contemporary ideas of religious freedom and pluralism in Islam, Ali claims we should review Qurʾanic passages that mention Islam and Muslims along with religions and communities, and which refer to ethical doctrines explained by various M ­ uslim scholars from the earliest period of Islam to today. Muslim scholars mostly refer to Qurʾanic terms about belief, disbelief, Muslims and people of the book, in formulating the identity of Islam and non-Muslims, in their a­ ttitudes and beliefs ­regarding the fate of non-Muslims. Ali further asserts that the diversity of views and opinions among Muslim scholars indicate that the Qurʾan alone does not c­ reate a single view on the salvation of the other. Rather, there is a diversity of ethics. The multi-dimensionality in the views and attitudes of ­Muslims regarding other religions resides in this variety of norms. The Christian views on religious diversity are being discussed in the next chapter. S. Mark Heim asserts in ‘Religious Pluralism, Religious Freedom, and Christianity’ that a universal formulation is required for religious freedom in today’s globally interlinked world, where no majority religion prevails. ­Chronological in nature, this chapter examines the burgeoning elements that have shaped Christian views on religious diversity. As part of a religiously pluralistic empire in the formative early centuries, Christians were a frequently persecuted minority; consequently, religious freedom was needed for survival. There was an evident institutional separation between the church and state in western Christianity in the Middle Ages, while modes of adaptation were identified under the governance of non-Christian powers by churches in ­Central, South and East Asia, and in Africa. The Reformation and break-up of the church in the West in the early modern period brought about confessional wars and, ultimately, political and philosophical justifications for religious ­toleration. The modern global mission movement thus strives to eradicate religious diversity. Re-evaluating theological interpretations of those religions has recently created a closer link between religious diversity and the core practice and views of Christianity. Heim argues that by integrating more recent theological approval for the specific content of each religion in its own right, all these features may be included within the fundamental practice of Christianity.

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Part 2 on ‘Concepts and Dimensions in Religious Freedom and Religious Pluralism’, opens with Göran Gunner’s chapter on religious freedom as a Human Right. In his contribution, Gunner presents an overview of the different treaties, comments by the Human Rights Committee and case-law by international courts on the freedom of religion and belief, showcasing the many aspects of this freedom. In Gunner’s view, there is agreement about the first four aspects: internal freedom, external freedom, protection from coercion and protection from discrimination. In the chapter ‘Religious Freedom as a Human Right’, Gunner asserts that believers typically wish to come together and unite in faith communities, congregations, etc. Premises like mosques, houses of prayers, temples, churches, and synagogues were built to support this need. But human rights do not protect a religion, belief, or religious community; rather, they establish the right to endorse and express beliefs. Thus, freedom of religion or belief safeguards believers, not the beliefs. Gunner believes the right is individual, but the protection is provided to them ‘either on their own or together with their community’. Various states have presented distinct requirements to legally acknowledge a religious organization. However, the individual’s freedom of religion should not be determined by whether a group has acquired legal status. Yet an overlap exists between freedom of religion or belief and other rights, such as freedoms of movement, freedoms of expression, etc. According to Gunner, this may generate controversies regarding how to link the various rights. He also asserts that a key challenge for freedom of religion or belief emerges from established religions that consider their culture, religious practice and tradition to be critical, even when they oppose religious freedom presented through human rights. In their chapter ‘Pluralism, Pastafarianism and the Scope of the Freedom of Religion’, Paul Cliteur and Carla Zoethout claim that Article 18 of the UDHR and Article 9 of the ECHR offer freedom of religion to individuals, along with the freedom to change their religion. Pastafarianism considers itself a new religion. Dutch authorities rejected this claim, accepted by the ECtHR, on the basis that pastafarianism lacked the four attributes of religion: namely, ‘cogency, seriousness, cohesion, and importance’. It is also not recognised as a religion by the ECtHR due to its satirical nature. However, Cliteur and Z ­ oethout assert that this is incorrect because the ECHR does not define religion comprehensively and is not specifically intended to safeguard officially recognised religions. ­Moreover, in De Wilde v. the Netherlands, the apostasy clause (that is part of Article 9 ECHR) did not get the attention it deserved. Cliteur and Zoethout assert that the Dutch authorities restricted themselves to the question of whether ­pastafarianism can be considered a serious religion, when they

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should have questioned whether it can be considered a serious repudiation of religion. In Part 3 on ‘Issues in Religious Freedom and Religious Pluralism’, both a diversity of viewpoints, of countries and of issues are being discussed. In her chapter, ‘The Turn to Belief and How the Discourse of Religious Freedom Marginalises Minority Religions in Australia’, Elenie Poulos analyses key public statements made by religious leaders, politicians, and media analysts on religious freedom. She concludes that ‘religion’ in Australian public debate refers to ‘belief’ and represents few religiously framed perspectives on ‘morality’ issues. Consequently, the public discussion in Australia regarding religious freedom steers away from controversial issues like displaying religious symbols, creating places of worship, freedom to gather, and the freedom to wear religious clothes. Rather, it concentrates on how much permission the state has given to allow religious organisations to act on declarations regarding moral issues. Poulos asserts that in the modern public discourse on religious freedom, the focus is not on the prejudice and discrimination faced by individuals from minority religions but on the expression of a few traditional/­conservative Christian beliefs regarding sexuality, gender, euthanasia, and marriage and abortion that every religious tradition challenges. Poulos referred to Fisher who claimed that safeguarding this type of religious freedom will ensure that in Australian society, the church-state relationship continues to be privileged. She asserts that shifting to belief in the discussion on religious freedom has helped propagate Christian privilege in the public domain, despite the shortcomings of religious freedom legislation. A similar development can be observed in the US, as appears in ‘The U.S. Supreme Court’s New Religious Discrimination Doctrine and the Privileging of “Majoritarian” Religions’. In this chapter, Frank S. Ravitch asserts that under the Free Exercise Clause of the First Amendment to the United States Constitution, the United States has expanded what it deems as discrimination. This was because socially conservative Christians frequently claimed they were victims of discrimination, therefore it benefitted the wider Christian groups. According to Ravitch, certain examples are palpable, like not giving a stay of execution for a Muslim prisoner in Alabama as an Iman was not permitted to attend the execution, even though Christian ministers were permitted inside the execution chamber. Other instances are more subtle, like extending the concept of discrimination under the Free Exercise Clause to make states incorporate religious schools into funding mechanisms that could easily involve vouchers. This can adversely affect religious minorities and non-believers who are frequently unable to benefit from school vouchers as vouchers and other private school aid programs typically benefit more subsidised, mainly Catholic religious schools that charge less fees. This chapter shows how the doctrine

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shifts from an approach curtailing intentional discrimination usually aimed at religious minorities to one that does not involve a similar intent to discriminate, and which is more advantageous for dominant Christian groups. A much-disputed topic in contemporary pluralist societies is the ‘­Protection against religious hatred’. What does this actually mean in theory and in ­practice? In their chapter with the same title, Luca Farrow and Paul Hedges state that this protection can either be comprehended narrowly as legally regulating expressions of religious hatred that forbid speech provoking discrimination, violence or hostility; or broadly as involving extensive practices that safeguard against religiously hateful attitudes and also the expression of such attitudes. Their focus is mainly on the narrow understanding. This chapter discusses different definitions of religious hatred, stressing international legal, or q­ uasi-legal, rights to religious freedom and safeguarding against religious hatred. It then argues that these international measures are often of limited efficiency as it mostly depends on the way they are integrated, or not, into national legal frameworks. According to Farrow and Hedges, even though there are international laws that offer security against religious hatred, these protections are not as strong as they appear to be. This is because not all nation states have adopted international legal and quasi-legal protections against hate speech, and in those states that have, individuals may not be able to domestically use their rights. In addition, these protections against religious hatred are interpreted differently in different jurisdictions, depending on the priority awarded to the protection of freedom of speech. In his chapter ‘Church Autonomy in the United States’, Christopher C. Lund evaluates the concept of religious group autonomy (‘church autonomy’) by examining its development in American law. Being an American lawyer and academician, he is only modestly familiar with the European system. However, church autonomy is clearly a highly robust and complex concept in America. This is not surprising as America is an extremely religious as well as highly litigious society; therefore, it offers several instances for reviewing the concept of church autonomy and its rationales, scope, shortcomings, and limitations. Lund asserts that the perspective of religious group voluntarism can be applied to all of the United States Supreme Court’s church autonomy cases. Recently, cases have exhibited the ‘ministerial exception’ – the idea that churches are immune from employment discrimination claims made by their ministers. In these cases, the minister makes an assertion of right, but this threatens religious group voluntarism. According to Lund, there have been limited cases for the United States Supreme Court to extensively review the idea of church autonomy. However, the few disputes in the lower courts demonstrate that church autonomy is an extraordinarily powerful idea with broad application. Lastly, Lund asserts that being a comparatively new concept, church autonomy

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is highly uncertain. Yet it is firmly rooted in American history and should therefore be evaluated more extensively. What is the role of religiously expressive business corporations in society? In his chapter ‘Religious Freedom and the Business Corporation’, Ronald J. Colombo discusses this phenomenon. He asserts that the ‘religiously expressive business corporation’, which represents for-profit companies that have a pronounced religious identity and align their activities accordingly, is controversial. This is because it tries to combine (1) the perpetually challenging issue of creating a balance between the individual’s right to religious freedom in a society presumably based on ordered liberty; and (2) the business organisation’s role, rights and responsibilities. According to Colombo, the controversy has increased the gap between American citizens who adhere to conventional religious views and those with more secularised views consistent with the majority of the contemporary West. Thus, regulation is becoming more reflective of progressive, secularised perspectives on ‘social issues’. A conflict of rights exists when a business corporation asserts its religious liberty interests against adherence to the rights and protections provided by legislation to customers and employees. Colombo argues that religiously expressive corporations have focused on conventional understandings of religion that are inconsistent with contemporary progressive values. This is why their existence, active involvement in society, and proclamation of religious liberty rights against those who would benefit from progressive legislative measures, are disputed and considered with suspicion in the media and the academy. Andrew Hambler states in his chapter ‘Legal approaches to the individual manifestation of religion in the workplace: a study of England and Wales’ that religious views at work are typically exhibited through: 1) certain dress requirements; 2) requests to take time off for religious duties; 3) requesting exemptions for particular tasks due to conscientious objections; and 4) giving religious speeches. Hambler examines the issues experienced with different forms of religious manifestation in terms of possible hostility from employers and the reaction of courts and tribunals. Hambler believes courts have positively shifted towards particular kinds of manifestations. For example, regarding prohibitions on religious dress and grooming, courts are not persuaded by employers’ justifications. Regarding taking time off for fulfilling religious duties, courts afford less importance to religious obligation than to employer inconvenience. Courts have given less support to conscientious objections to work-related activities and generally supported employer restrictions on proselytism and religious speech. Thus, despite positive efforts in certain areas, the approach presently adopted by courts and tribunals shifts further away from accepting employer restrictions. This may occur because courts still view

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religious practices as having an element of ‘choice’, which means employees can exhibit self-restraint. However, a few individuals have no choice; religious manifestation is an obligation and hence non-negotiable. The relationship between freedom of expression and religious sensibilities has been delicate ever since the adoption of the ECHR. In the chapter entitled ‘Walking on a high wire – The European Court of Human Rights and the challenge of balancing the rights of freedom of expression and the protection of religion/belief under the ECHR’, Peter Cumper and Tom Lewis discuss some of the reasons why disagreements have increased. These include: prohibiting certain religious groups from restricting their religion to the private domain, transforming Europe into a multi-faith continent, and the close relationship between state and religious institutions, where abusing such institutions amounts to ‘blasphemy’. The authors discuss the case law of the ECtHR, stressing major cases that have been identified by this primary human rights court. Creating a balance between the rights of those seeking to denigrate religion/ belief and those opposing such disapproving attacks is intimidating, and requires judges to possess the metaphorical skills of a high-wire walker. The ECtHR now has a vital role to perform in providing directives on the parameters of the right to freedom of expression, where the feelings of religious followers have been offended. Cumper and Lewis state that distinct responses are incited in the way ECtHR should deal with the metaphorical wire. For some, the ECtHR, mindful of extremely emotive attacks on religious sentiments, is inclined to safeguard religious freedom. Others favor a more robust free speech/public interest approach, where the ECtHR exhibits higher confidence in walking the ‘wire’. Cumper and Lewis prefer the latter. In his chapter ‘Liberalism, Religious Pluralism, and the Environment’, Paul Babie examines religious views on making a choice with respect to goods and resources involved in private property. He examines the concepts of community and obligation prevalent in the three monotheistic cultures of J­udaism, Christianity and Islam, and two polytheistic faiths, i.e., Buddhism and ­Hinduism. The relationship between the global community and global environment is demonstrated here. When we are not aware of private property, the relationship between human activities and environmental outcomes remain hidden under the liberal pretense of freedom and choice. Climate change presents an excellent example of the relationship produced through individuals choices, as it involves ‘physical-spatial’ and ‘temporal’ elements. The former includes the immediate implications of climate change while the latter pertains to future generations who must face the consequences of current choices. According to Babie, in contrast to the liberal theory that stresses the individual, Christian theology distinguishes the ‘person’ from the ‘individual’.

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In this view, the liberal individual is only concerned about oneself, whereas the person is relational and hence also concerned about others. Babie asserts that like liberalism, Islam considers property a combination of rights. Islam identifies any choice to use a thing should be made in the context of unity and community. Jewish tradition considers obligation an issue of justice that the individual owes to the community. 3 Conclusion The chapters in Freedom of Religion and Religious Pluralism, range from ­Hinduism to Islam, and their approaches to other religious and non-religious beliefs; from topics related to the current Australian debate on ‘religious belief’, to the case-law of the ECtHR on freedom of expression and freedom of religion. The chapters bear witness to the crucial role played by the freedom of religion (including the freedom to denounce religion) in contemporary societies all over the world. We hope this volume may contribute to recognising that freedom of religion in a pluralistic democratic society is demanding. It requires (of course) toleration of a great variety of religious beliefs, and of non-religious beliefs, but it also requires toleration of criticism of religion and of (non-)religious beliefs. That is a major challenge for pluralist societies all over the world. Bibliography Books

Jellinek, Georg. Die Erklärung der Menschen- und Bürgerrechte. Vierte Auflage, in Dritter Auflage bearbeitet von Walter Jellinek. München und Leipzig: Duncker und Humblot, 1927 (1895). Jellinek, Georg. Allgemeine Staatslehre. Zweite Auflage, Berlin: Verlag von O. Häring, 1905 (1900). Lewis, Jon E. ed., The New Rights of Man: An Anthology of the Events, Documents and Speeches that have shaped Civilization. London: Robinson 2003. Wells, H.G. The Rights of Man, or What are we Fighting for. Harmondsworth: Penguin Books, 2015 (1940).



Book Chapter

Roosevelt, Franklin Delano. “The Four Freedoms.” (1941) In The Penguin Book of T ­ wentieth-Century Speeches. Edited by Brian MacArthur, 197–201. Harmondsworth: Penguin Books, 1993.

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Ruffini, Francesco. Religious Liberty. Translated by J. Paker Heyes with a preface by J.B. Bury. London: Williams & Norgate; New York: G.P. Putnam’s Sons, 1912.

Thesis

Schaik, B. van. “Defaming the Freedom of Religion or Belief.” PhD Thesis, Leiden ­University, Leiden, 2022.

Resolution

Resolution adopted by the General Assembly on 16 December 2020, 75/188, N2037353. pdf (un.org). Resolution CM/Res(2022)2 on the cessation of the membership of the Russian ­Federation to the Council of Europe, https://search.coe.int/cm/Pages/result_details .aspx?ObjectID=0900001680a5da51.

Case

European Court of Human Rights, Kokkinakis v. Greece, App. no. 14307/88, 25 May 1993.



Legal Instruments

European Convention on Human Rights, 1950. Universal Declaration of Human Rights, 1948.

Chapter 2

Bhakti and Its Songs: Hindu Devotion as a Gateway to Religious Harmony Neelima Shukla-Bhatt On October 5th 2018, three days after Gandhi’s 150th birthday, a major ­newspaper of India, The Indian Express, published an article about how a ­soulful rendering of his favourite devotional song in his mother tongue Gujarati – Vaishnava janato (Call only that one a true Vaishnava [devotee of Vishnu]) – by a famous Pakistani singer had gone viral on social media.1 The lyric of this devotional song (bhajan), which defines true religiousness in terms of human empathy and moral integrity, is by Narasinha Mehta, a fifteenth century Hindu saint of Gujarat, the region to which Gandhi belonged. The bhajan’s currently popular melody was composed by an early twentieth century musician and close associate of Gandhi, Narayan Khare who was from Maharashtra. And the singer, well-known for the quality of his voice and fine presentation of songs based on north Indian/Pakistani classical music, belongs to Punjab, Pakistan. The video mentioned in the article has remained popular on the YouTube platform for three years with three quarter of a million views and over two thousand comments, mostly by Indians but several by Pakistanis as well.2 Very few comments are impacted by the tension that has led the two countries to engage in several military conflicts in their seven decades of separate existence after independence from the British rule in 1947. Overwhelmingly, the commentors express appreciation for the singer and importantly, an aspiration for loving relationships among people in their part of the world and all humanity. In view of the bitter exchanges among some users from both sides of the border on social media, this comes as a welcome surprise. How does one understand these heart-warming exchanges? Can these virtual interactions be taken seriously in exploring the theme of religious 1 Trends Desk, “Pakistani Singer Shafqat Amanat Ali’s Soulful Rendition of Vaishnava janato is Going Viral” October 5, 2018, The Indian Express, https://indianexpress.com/article/trend ing/viral-videos-trending/pakistani-singer-shafqat-amanat-ali-sings-soulful-rendition-of -vaishnava-janato-5387763/. 2 The YouTube video, uploaded by the High Commission of India, Islamabad, Pakistan, is ­available here: https://www.youtube.com/watch?v=A8K5G3YbXFE. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_003

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pluralism? As sociologist Peter Berger remarked years ago, there is a real tension between the necessary intellectual cautiousness and hopefulness rooted in trust (in the divine or fellow humans) in studying religious phenomena.3 The issue is certainly complex when considering comments on the internet since there is no way of verifying the sincerity behind any comment. Yet, in the digital world we live in, if a reputable think tank such as the Council for Foreign Affairs (USA) reports the impact of hate expressions on social media in the rise of violence against minorities globally, and political analysists closely scrutinize comments on these platforms, expressions of appreciation and aspirations of harmony there also demand attention.4 In her Presidential address at the American Academy of Religion annual conference in 2006, later published as an article, Diana Eck persuasively argues that scholars of religion should take the challenge of studying instances of religious pluralism as seriously as they do in examining instances of extremism. As a scholar of Indian religions, she gives several examples of amicable exchanges between Hindus and Muslims, the two numerously largest communities in the country, in the city she studied – Banaras, the holiest city for many Hindus and one of the oldest in the world. Soon after incidents of clash here, she writes, “old patterns of business and commerce, pilgrimage and tourism seemed to hold steady.”5 Old patterns in India run deep; some of them a couple of millennia and some a few centuries. The appeal and appreciation of a soulful performance of a devotional song across caste, gender, religious and regional boundaries is such a centuries old pattern. The YouTube comments in q­ uestion can be seen as its virtual manifestation with listeners around the world. To a large degree, a popular devotional song in India derives its appeal from its lyric. While the song mentioned above has enjoyed a special status in ­international circuits because of its association with Gandhi, it is one among countless Hindu hymns of devotion (bhakti) found in diverse languages of South Asia. Such bhajans intersect in their appeal with similar songs in other traditions – Islamic and Sikh – which together form a shared heritage of popular devotional music cherished by diverse communities. They are regularly heard in events for peace building in all parts of India and in the diaspora where 3 Peter Berger, “The Pluralistic Situation and the Coming Dialog between the World Religions,” in Buddhist–Christian Studies, 1 (1981): 31. 4 Zachary Laub, “Hate Speech on Social Media: Global Comparisons”, the Council for Foreign Relations, last modified June 7, 2019. https://www.cfr.org/backgrounder/hate-speech-social -media-global-comparisons. 5 Diana Eck, “Prospects for Pluralism: Voice and Vision in the Study of Religion,” in Journal of the American Academy of Religion, 75, no 4 (December 2007): 743–776, 749.

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Indians have migrated. Unlike the destruction of life and damage to materials caused by violence, the kind of affinity with the “other” inspired by these songs is not quantifiable; nor does it have the form of a structured interfaith dialog. It does not make headlines in the media. It is encountered unexpectedly, woven in spontaneous casual exchanges of ordinary people. Focusing largely on devotional songs written by saintly poets (saint-poets) of north India like Narasinha, this essay examines the realized and unrealized potential of bhakti for creating an ethos of interreligious harmony in India, where a large majority of Hindus live, and beyond its borders. It uses the term “religious harmony” to refer to a specific form of “religious pluralism,” which corresponds with examples related to bhakti found in Indian cultural contexts. 1

“Pluralism” as “Harmony”

In 1996, Peter Berger argued in his well-known article “Secularism in Retreat” that the once widely accepted theory of secularization, which had predicted retreat of religion with the advance of science, had failed. The world at large continues to be religious. But in the contemporary world, religiousness has different forms and implications from the traditional ones.6 One of them, as he had pointed out earlier, is a “pluralistic situation” in the area of religion, which demands interfaith understanding.7 With the growing awareness about our de-secularized world and the pluralistic situation, combined sadly with a rise in religious conflicts globally, the term “religious pluralism” has been debated and defined consistently by scholars and public intellectuals in the past few decades. Many refer to religious pluralism as peaceful coexistence of multiple religious traditions in a geographic area.8 Expanding the scope of the term, on the homepage of the Pluralism Project website of Harvard University under her direction, Diana Eck defines it as “an ethic for living together in a diverse society” and stresses that “it isn’t just the fact of diversity, but how we respond to it.” It is not mere tolerance, which does not require diverse groups to understand or engage with one another; nor it is relativism, which wipes out

6 Peter Berger, “Secularism in Retreat,” The National Interest, no. 46 (1996/97): 3–12. 7 Berger, 1981, 35–41. 8 See for example, Peter Berger (1981), 32; and Eva M. Hamberg, “Religious Monopolies, ­Religious Pluralism, and Secularization: The Relationship Between Religious Pluralism and Religious Participation in Sweden” in International Journal of Research on Religion, 11 (2015): 3, 205–216.

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important differences. Pluralism is an active engagement with differences to create a common society.9 Taking Eck’s definition as the basis, the term “religious harmony” as used in this essay refers to an ethos created by religious currents that come together in specific events and then diverge with their distinctness intact. The moment of intersection with an experience of deep connectedness, however, becomes a part of the worldview for many participants. Like harmonization in music, where two notes come together to create a musically pleasant sound for a moment that leaves an imprint on listener’s mind, in many religious encounters related to bhakti, there is a convergence of emotional responses among diverse participants. This reinforces their shared cherished values in the moment. When the participants diverge, the experience leaves many with a profound impact. The term “harmony” is also important for another reason in the Hindu context. With no central authority structure, the tradition is immensely diverse internally. It also has the hierarchical divisions of caste. Along with bhakti’s contribution to Hindu encounters with other traditions, it is important to consider its realized and unrealized potential in harmonizing internal diversity as well. To explore the theme of religious harmony in relation to bhakti in a twotiered manner, the essay will first trace its development within the Hindu tradition and its implications for social interactions including the caste and gender hierarchies. It will then discuss the rise of popular regional bhakti ­traditions around songs of saint-poets, which have historically appealed across religious boundaries and intersected with devotional songs of other traditions. And finally, it will briefly consider the efforts by leaders and common people to unlock the potential of popular bhakti songs to lead to harmonious interactions among diverse groups in the modern times and some perspectives that critique them. 2

Bhakti – A Path of Love and Relationships

Hindus recognize bhakti as one of the three main disciplines or paths (mārgas) for spiritual progress from which they draw in their religious lives. The other two are: jnān (knowledge), and karma (ritual or moral action). Bhakti, usually translated in English as “devotion,” is a feminine noun in Sanskrit. Derived from the verb bhaj, it also has the connotations of “sharing,” “participation,” and “belonging,” “adoration,” and “reverence,” all of which have an implication 9 Diana Eck, https://pluralism.org/about.

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of interaction or relationship. It is understood by Hindus primarily as the sentiment of intense love for the divine, experienced individually or in the community. Indeed it is often referred to as “the religion of the heart” by practitioners, and debated as such by scholars.10 Even when bhakti is manipulated for political purposes, this is made possible because of its strong hold over emotions of its followers. As is well-known, Hinduism does not have a single scripture, but scores of sacred texts composed over millennia. The early expressions of bhakti are generally traced back to a few passages from a set of texts called the Upanishads and the well-known Bhagavad Gita (BG), which were composed in the centuries immediately preceding the Common Era. However, in the earliest sacred text of Hindus – the Rig Veda (ca fifteen hundred BCE, RV) – we find two aspects associated with bhakti. First, some hymns in RV mention love for the divine and request blessings to be shared by “all our people”.11 Second, the text is marked by multivocality – with its hymns understood as inspired verses uttered by multiple sages and not one. Multivocality has since formed a stable aspect of Hinduism, including its bhakti path, and has important implications for interreligious understanding. The term bhakti specifically appears first in the sixth chapter of the Shvetashvatara Upanishad.12 A major theme in major Upanishads is inner search and realization of one’s unity with the all-pervading Ultimate (Brahman), which is to be achieved through meditation and knowledge. While the Shvetashvatara also focuses on Brahman, in the last three verses, there is a clear reference to the joy of sharing bhakti (loving surrender to the divine), with the like-minded. This synthesis of inner search and loving devotion has remained a mark of bhakti in subsequent eras and has provided an important point of intersection with other traditions such as Sufism. A more widely known exposition of bhakti appears in the BG. Here, Krishna an incarnation (avatār) of Lord Vishnu, reveals his divine identity to his friend Arjun in the latter’s moment of crisis and delivers teachings about various spiritual disciplines. One of the eighteen chapters is titled Bhakti Yoga, where Krishna asserts that the path of knowledge is long and arduous for an average person. But the path of bhakti, tied to emotions and surrender, is easier and gets an average person closer to

10 11 12

John Stratton Hawley, Christian Novetzke, and Swapna Sharma, eds. Bhakti and Power: Debating India’s Religion of the Heart (Seattle: University of Washington Press, 2019). The Rig Veda, translated by Ralph T. H. Griffith (London: Forgotten Books, 2008): 91. For the text, see Eknath Easwaran, The Upanishads (Tomales, CA: Nilgiri Press, 2000): 217–232.

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the divine. It also leads a person to develop qualities of empathy and friendliness. Krishna declares that he loves a person with such qualities. That one I love who is incapable of ill will, who is friendly and compassionate. ………………………………………………………………………………………………. Not agitating the world or by it agitated, he stands above the sway of elation, competition, and fear; he is my beloved.13 (BG, 12. 13–15) Another verse in the BG (9.32) pronounces that a bhakta (follower of bhakti, devotee) from all social categories, including women and low castes, can reach the divine. Considering that women and people from lower castes had become socially marginalized groups in the Hindu society by the time of the text’s composition, the verse’s specific mention of them is seen by most Hindus as declaring bhakti as an inclusive path rejecting hierarchies, despite its critique as discriminatory by some.14 Even with their stress on love and inclusiveness however, it is not possible to access the direct cultural impact of these texts during the time of their composition or in the centuries immediately following them. The Sanskrit language in which they were composed was already becoming the language of the elite in the last centuries before the Common Era. Yet the “religion of the heart” they endorse, found other channels through which their message filtered to various layers of the society in the first millennium of the Common Era. A major contribution to the spreading of the bhakti ideology was made by narratives about divine beings in the Hindu pantheon (which are numerous) contained in two Sanskrit epics and sacred texts called “the Puranas”. In them, several human characters from various strata of the society are seen having loving relationships with the divine incarnations on the earth. The most popular deities in these narratives are Shiva, the goddess, and Vishnu, particularly in his two human incarnations as Rama and Krishna. The narratives about Krishna depict him as being born to parents imprisoned by his 13 14

The Bhagavad Gita, translated by Eknath Easwaran (Tomales, CA: Nilgiri Press): 2004, 163. Ibid, 135–136. Those who critique the text as reinforcing social hierarchies stress that it is the only verse in it that contains references to these groups. For an overview of this ­position see Keya Maitra, Philosophy of the Bhagavad Gita, A Contemporary Introduction (London: Bloomsbury, 2018), 20–22. A large number of Hindus however, read it as ­pointing out worthiness of all as bhaktas.

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uncle, being taken divine intervention to a nearby village Gokul, and growing up there among cowherds, considered low caste. Krishna’s bonds of love with his adopted parents, friends, and especially with young cowherd women with whom he dances and engages in amorous relationships, have enjoyed tremendous popularity among Hindus and non-Hindus in India. The narratives were soon retold in regional languages of India and circulated widely among common people. It was through these narratives that bhakti gradually emerged as the dominant Hindu religious current by the end of the first millennium. Along with caste and gender, linguistic diversity also emerged as an aspect of inclusiveness in the bhakti ideology. Another noteworthy aspect of the Puranic narratives is that while every major Purana focuses on one deity, other deities also appear in it. In some, the deities compete for a title or debate over an issue; but in general, there is no denouncing of any deity by another. Their interactions are mutually respectful. An important implication of this has been that for most Hindus a downright denunciation of a divine being worshipped by anyone is against their long prevailing religious norms. During the period when the Puranic narratives were becoming popular, ­Hinduism had coexisted with Buddhism and Jainism in India for a millennium. There was rivalry for patronage and followers among leaders of these traditions. Yet at the cultural level, the boundaries were not sharply demarcated, facilitating a general shared ethos that included bhakti as John Cort has shown.15 In this fluid ethos, bhakti’s potential to appeal across religious boundaries was not tested. Therefore, the testimony of the eleventh century Muslim scholar Muhammad ibn Ahmad Al-Beruni, who travelled extensively in India for years to study Indian religions and astronomy and is considered the earliest outside scholar of Hinduism, bears great significance. While Al-Beruni is scathingly critical of several aspects of Hindu thought and customs including caste differences, he devotes long sections of his Al-Hind to comparing the teachings of the BG and of Hindu sages with Greek and Sufi thought. An especially interesting statement in Al-Hind is that as per Hindu philosophers, the highest spiritual goal, liberation, is open to all castes and that Krishna himself belonged a lower caste (growing up among cowherds). This is followed by a quote from the BG where Krishna declares that God is just and then continues with precisely the verse about women and low-caste people (shudras) BG 9.32 cited above. Beruni proceeds to quote Vyasa (considered the author of the Puranas), who extends the right to liberation to the followers of all religions: “Learn to know the ­twenty-five things [precepts] thoroughly. Then you may follow whatever

15

John Cort “Bhakti in the Early Jain Traditions: Understanding Devotional Religion in South Asia” in History of Religions 42, no. 1 (2002): 59–86.

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religion you like; you will no doubt be liberated.”16 Ainslee Ambree observes that Al-beruni appreciated devotional Hinduism, especially traditions related to Krishna.17 In considering the appeal of bhakti’s inclusiveness and appeal across religious boundaries, Al-Beruni’s remarks are immensely valuable. They were made a few centuries before bhakti’s cultural implications became fully manifest in the regions he had travelled; and he was also able to observe the unrealized potential of bhakti in the stringent caste distinctions prevalent at the time. 3

Songs of Saint-poets – A Bhakti Current in a Multi-Religious Ethos

3.1 Development Today, the term bhakti has a great cultural currency in India, used not only by Hindus, but also in many contexts by Muslims, Christians, and others. It is heard in articulation of dedication to mother, father, teacher, or nation too. Its everyday quality has been evolving for a millennium within the Hindu tradition along with embodied religious forms such as ritual worship (pūjā) of images of deities in temples, pilgrimage, and singing of devotional songs (bhajans) in regional languages composed by saint-poets.18 These embodied practices have clearly communal aspects of participation, unlike bhakti’s ancient form as an individual spiritual discipline. While some practices like pilgrimage and pūjā are bound to specific locations, bhajans are sung freely by individuals or groups at any time and in any place found suitable without priestly intervention. Because of the centrality of people’s agency and informal nature of performance, singing of bhajans has developed as one of the most vibrant forms of popular bhakti. At the foundation of their popularity in musical ­performances are the lyrics of saint-poets with messages of love for the divine and fellow beings, disregard for gender and caste hierarchies, and inner search. As a form of bhakti, they have permeable boundaries and great scope for nurturing intra and interreligious harmony. The early traditions around vernacular devotional songs of saint-poets with dynamic community participation, often across caste distinctions, emerged in several regions of south India in latter part of the first millennium. This tide of bhakti developed in an ethos of Hinduism’s coexistence with Jainism and 16

Biruni Muḥammad ibn Aḥmad. Alberuni’s India (abridged), translated by Edward C. Sachau, edited by Ainslie Thomas Embree. (New York: Norton, 1971): 76–88, 104. 17 Ibid. xvii. 18 For bhakti as an embodied practice, see Karen Pechilis-Prentiss, The Embodiment of Bhakti (New York: Oxford, 1999): 3–11.

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Buddhism and is still thriving in sects devoted to Vishnu and Shiva. Similar bhakti currents began to flourish in north India in the centuries after Al-­beruni’s visit. These currents too had a participatory spirit and contributed to the development of organized communities, but with two significant differences. Whereas each sect that had developed in south India was focused on a specific deity, the organized communities in north India were differently categorized based on the conceptions of the divine. These are broadly known as: saguṇa – sects with their devotional focus on a personal deity with form and attributes; and nirguṇa – those dedicated to search for a formless divine within one’s heart. Further, the development of the traditions of saint-poets’ songs occurred in north India between the fourteenth and the eighteenth centuries in an immensely diverse religious milieu, first under the Delhi Sultanate and then the Mughal empire.19 Because of this diversity, this essay focuses on saint-poets’ songs from that context. By the time bhakti traditions reached a peak in the sixteenth century north India, the territory under Mughal emperor Akbar was what historian André Wink describes as “raucous, intoxicating, and, above all, a crowded bazaar of religious ideas”.20 Islam with its Sunni and Shia branches as well as mystical Sufi orders had been established for centuries. A large majority of the population followed Hindu, Jain, or Sikh traditions. And Jesuit Christians had begun to arrive on the Indian shores. In this dynamic religious milieu, popular ­participatory currents of several religions were thriving parallel to one another and to the more structured forms within their own traditions. Bhakti was one of them. The popular religious currents competed for followers and patronage. Yet, by their very prevalence in a common ground, they were participants in “interpenetrating fields of influence,” to borrow Cort’s helpful phrase.21 Among their interpenetrating fields of influence, songs of Hindu, Sufi, and Sikh saint-poets were the most prominent. In different regions of north India their intersections created a shared cultural heritage that is cherished by diverse communities even today. A brief review of the salient aspects of the songs of bhakti saint-poets is helpful before we turn to two beloved poets. 3.2 Salient Aspects of Regional Bhakti Songs In addition to inspiring messages, two aspects of regional saint-poets’ lyrics, which laid the foundation for their popularity and had important implications 19

20 21

John Stratton Hawley points out that the pioneers of bhakti institutions in north India, which was the throbbing hub of Krishna bhakti during the Mogul period, arrived here at the time of Sikandar and Ibrahim Lodi. John S. Hawley A Storm of Songs: India and the Idea of the Bhakti Movement (Cambridge, MA: Harvard, 2015): 157. André Wink, Akbar (Oxford, UK: Oneworld, 2009): 107. Cort (2002): 86, cf. 15.

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for religious interactions within and beyond Hindu communities, were linguistic accessibility and performativity. The regional languages in which saint-­poets composed their songs were still in various phases of standardization and script development. The songs drew some of their core themes from ancient Sanskrit texts but combined those with what one may call “regional religious lore.” This not only made the ancient theological/metaphysical reflections accessible to common people, but also gave dignity to the local cultural motifs and expressions. Further, since most Indian Muslims (who now formed the second largest religious community) were also not proficient in Arabic, they too were drawn to similar songs in regional languages composed by their religious poets and leaders – Sufis, daʿis (propagators) etc. These inevitably overlapped in themes, imagery, and melodies with the regional bhakti songs. The overlaps provided a cultural channel for smooth transition for recent converts to Islam; and over time, offered nodes for rich religious encounters. The linguistic accessibility of the songs was enhanced using simple everyday diction, making them available to groups that were generally excluded in elite Hindu practices. Not only did members of these groups sing popular bhakti songs, many women as well as low caste and Dalit (considered polluted and therefore, untouchable) saint-poets also became very popular. Most saint-­poets conveyed messages about the exclusive significance of the purity of heart; and emphatically articulated a disregard for all external markers of religiosity, especially distinctions of gender and caste, and pride in the learning of Sanskrit scriptures. These messages in the voices of women saint-poets like Mira of western India, Bahina of Maharashtra, and Lalla of Kashmir as well as in the songs of Dalit and low-caste poets like Ravidas of Banaras, Chokhamela of Maharashtra, and Dasi Jivan of Gujarat had great force. The saint-poets freely referred to the discrimination they suffered in the society but felt confident in their status as followers of bhakti. Many of their lyrics appear alongside those of high-caste male poets in handwritten manuscripts of bhajan compilations made by singers, reminding one of the multivocality of the RV sages. Sadly, that spirit has not resulted in a total transformation of the society. Caste discrimination still persists in some forms. Yet songs of regional saint-poets continue to be popular among lower-castes and Dalits because in singing bhajans in their mother tongue, they have a distinct sense of equal status and self-worth.22 In their attachment to the songs, bhakti’s potential to nurture internal harmony can be considered realized, at least partially.

22

During my research on the tradition of Narasinha Mehta 2000–2001, I attended several bhajan sessions among low-caste and Dalit communities in the Saurashtra region of ­Gujarat. This statement draws from conversations with many Dalit bhajan singers.

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Along with accessibility, the performative aspect of the saint-poets’ songs have played a key role in their enduring popularity across communities. ­Traditionally, they have been sung in simple regionally popular melodies that are also used in folksongs, making them easy to sing. As the songs of the saint-poets began to circulate widely, people could make them integral parts of their religious lives, performing them individually or in community settings. Soon, songs travelled from one place to another, especially with groups of ­iterant singers, who crisscrossed adjacent linguistic regions, making slight modifications in the lyrics for their audiences. As I have discussed in another place, such “performative translations” allowed the development of an informal network of bhakti through songs, linking many regions into their orbits, taking internal harmony to another ­level.23 Bhakti’s spread through saint-­ poets’ songs in this manner is often referenced as the “bhakti movement,” seen almost as an organized protest against caste hierarchies and Sanskritic hegemony, a ­representation Hawley has convincingly refuted.24 Yet it indeed remained associated with “moving” in the saint-poets’ songs ability to move hearts with their lyrics and melodies. The continued appeal of bhajan melodies across religious boundaries is made strikingly evident in the new Christian hymns being composed in Indian languages. In a 2001 article, Chris Hale, a musician who grew up in a missionary family in Nepal and spent time in India, argues for “reclaiming bhajan” in service to the church. Here, he stresses the appeal of simple melodies with repetition in Indian contexts.25 The most powerful aspect of bhajan in performance, however, is that, in it, the experience of bhakti is inseparable from aesthetic delight. Drawing on Indian aesthetic theories in which aesthetic delight is termed rasa (lit. “­nectar”), by the sixteenth century, several bhakti theologians had developed sophisticated theories of bhakti as rasa. In these, the term bhakti-rasa connotes the blissful experience of bhakti when conjoined with aesthetic delight and has a transformative power. Filtering through many layers of bhakti literature, it has now become a widely used term even by lay people in north India. The idea of the experience of religious sentiment as rasa, has also crossed several religious boundaries. Two sixteenth century Sufi poets, Manjhan and Qutban, refer to the bliss of mystical love as rasa in their poetic romances. “Only through rasa you can enjoy the savour of love. / Only those who are coloured with rasa, can savour it now or hereafter,” 23

Neelima Shukla-Bhatt, “Performance as Translation: Mīrā in Gujarat” in International Journal of Hindu Studies, 11, no. 3 (December 2007): 273–278. 24 Hawley, A Storm of Songs (2015): cf. 19. 25 Chris Hale, “Reclaiming Bhajan,” Mission Frontiers (June 2001): 16–17. https://www .missionfrontiers.org/issue/article/reclaiming-the-bhajan.

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says Qutban. An early twentieth century Sikh spiritual teacher discussed the bliss of contemplating on the hymns of their gurus as rasa. And today it is still used in relation to intuition and transformation by Muslim gamelan musicians of Java, where the concept could have travelled with visitors.26 Accessibility and performative aspects of saint-poets’ songs have thus helped make bhakti an inclusive path, opening space for the participation of members of all strata within the Hindu society. They have also contributed vitally to creating nodes of intersection with other traditions. The legacies of two saint-poets of the fifteenth century north India – Narasinha Mehta, the emblematic saint-poet of Gujarat, and Kabir, the world-renowned saint of Banaras – discussed below throw light on how bhakti expressed in popular songs has worked in relation to intra and interreligious harmony. 4

Two Saint-poets and Voices of Harmony

As mentioned earlier, the bhakti currents that developed in north India are classified broadly as those focused on deities with form and attributes (saguṇa) and those worshipping the formless divine within one’s heart (nirguṇa), even though there is a great deal of overlap. Some organized sects also developed along these divisions. The boundaries of organized sects with well-defined structures of authority have not been as permeable as those of the current of bhakti that flourished outside of them. Neither Narasinha Mehta, an ardent devotee of Krishna, nor Kabir, the most celebrated saint-poet of bhakti focusing on inner search, is known to have belonged a sect during their lives, even though a major sect developed in the latter’s name after his death. Their songs are heard all over India and now also in international venues because of their appeal across communities. In Narasinha’s songs, bhakti to Krishna becomes a frame for a clear articulation of disregard for caste and gender hierarchies. In a very popular song, he says: Look, Narahari (Krishna) dances daily in the courtyard of a cowherd, bound here to affection. ............................... 26

For a discussion of bhakti-rasa and all references here, see Neelima Shukla-Bhatt, Narasinha Mehta of Gujarat, A Legacy of Bhakti in Songs and Stories (New York: Oxford, 2015): 19–22.

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Blessed are the cowherds. What [can be gained] from belonging to high caste?27 In another, using the voice of Krishna’s beloved, he challenges the gender norms of his society in which being born a woman was considered a curse. What was my religious merit (in last life) that I was born a woman? Krishna pleads with me with meekness.28 The appeal of such Krishna devotion songs for Hindus is obvious. But their appeal beyond the Hindu fold is evidenced in the inclusion of several such Narasinha songs in a compilation of hymns sung by Ismaili Muslims of ­Gujarat published in the nineteenth century. Here, they appear alongside Ismaili gināns (hymns) and songs of other bhakti poets, representing regional ­interreligious multivocality.29 Ismaili scholar Aziz Esmail views this as creative interculturalism prevalent in pre-modern South Asia.30 Another extremely popular Narasinha song begins with the line, “In the entire universe it is you, Shri Hari [Krishna].” This song is particularly appealing in interreligious contexts; for its third stanza suggests the primacy of experience over textual knowledge and clearly supports freedom in religious persuasion: The books created confusion. They did not tell the truth. Everyone worships whom he likes. What one accepts with thought, speech, and action, the mind sees only that as the truth. Two comments about this song on the internet, one by a Muslim and one by a Hindu, indicate its appeal regardless of religious affiliation. On his reflective blog, Shiraz Pradhan, a Muslim man interested in interfaith dialog, has written a long entry comparing this song with a Muslim hymn about the unity of 27 28 29 30

Narasinha Mehta, Narasinha Mehta ni Kavyakrutio, ed. Shivalal Jesalpura (Ahmedabad: Sahitya Sanshodhan, 1981): 135. Translation of Narasinha’s songs is mine. The text referred as NKK now on. NKK: 361. For the contents of the compilation, see Ali Asani, The Harvard Collection of Ismaili ­Literature in Indic Languages: A Descriptive Catalog and Finding Aid (Boston: G. K. Hall & Co, 1992): 177–179. Aziz Esmail, A Scent of Sandalwood: Indo-Ismaili Religious Lyrics (Ginans) (Richmond, Surrey: Curzon, 2002): 32.

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Allah.31 And on a YouTube video a Hindu man R. Parikh’s comment, which echoes Pradhan’s remarks, translates, “The divine is in everyone; and everyone is in the divine.”32 Indeed, in my conversations with Gujarati Muslim family friends, this bhajan has often come up spontaneously. The appeal of the best-known Narasinha song, Vaishnava janato cited at the beginning, lies in the way it defines religiousness in terms of qualities of the heart and moral integrity. Call only that one a true Vaishnava, who understands others’ pain, who helps them in their suffering, but has no arrogance in his heart.33 I have heard it countless times in interreligious gatherings. With its ubiquitous presence in Indian media, and its videos on the internet numbering in hundreds, it is redundant to try keeping track of remarks on it by Hindu, Muslim, Christian, atheist viewers. But of thousands of comments I have read, one by a Pakistani Muslim in broken English remains most touching and relevant for interfaith encounters. Referring to the song as nāt (a hymn praising Prophet Muhammad), he writes: i cant explain my feelings … seems you introduce my prophet peace be upon him to me today … much prayers for you my brother God bless you and your mother amin … the world is in mess right now … no one care about others … soulless people all around world … we need more people like Jesus and Muhammad.34 Kabir, our second poet, is the most translated Hindi poet by western scholars. He appeals across religions with his stress on inner search for the one divine in all hearts whom he calls Rama (not to be confused with Vishnu’s incarnation). But his direct caustic style makes him a voice apart. In a famous lyric, he gives the message to repeat the divine name in every breath, while also sharply critiquing bookish knowledge of the sacred texts of both Hinduism and Islam.

31 32 33 34

Shiraz Pradhan, “Ideas of One Humanity, Love and Peace in One Religion,” https://simerg.com/literary-readings/ideas-of-one-humanity-and-love-and-peace-in -world-religions-comparative-study-of-ginan-hum-dil-khalak-with-a-hindu-bhajan/. R. Parikh comment on – https://www.youtube.com/watch?v=KyeXubzKUxk. NKK: 382. Muhammad Khan – https://www.youtube.com/watch?v=kIvCtJEispY.

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They are lost and immature fools who do not realize Ram in every breath. ................................ Pundits study Vedas and Puranas Mullas read the Koran. Kabir says they go to hell if they don’t realize Ram in every breath.35 Sharp lines such as these are found in abundance in Kabir’s corpus and are quoted frequently by people from diverse backgrounds. But equally frequently, we hear his couplets (four lines in translation) – dohās – such as the following, which has the same message of unity but a soothing contemplative style: Drop falling in the ocean–– Everyone knows. Ocean absorbed in the drop–– a rare one knows.36 Even with such stress on the unity of existence, Kabir does not disregard ­difference. He consistently points out differences between Hindus and Muslims. Kabir scholar David Lorenzen observes that Kabir “recognizes the basic ­differences among the yogis, the Hindus and the Muslims, but also claims that in some sense all are true if one follows them with pure heart.” Therefore, Lorenzen views Kabir as a “radical pluralist.”37 Along with Kabir’s songs, which are heard in all regions of north India, ­Pakistan, and beyond, his hagiography in oral traditions also presents the saint’s distinctly pluralist teaching in death. According to it, Kabir had Hindu and Muslim disciples. As the saint’s end approached, they were in a bitter argument about how his last rites would be performed. Hindus wanted to cremate him, and Muslims to bury. Kabir asked them to leave the room. When they opened the room, they only found a heap of flowers, which they shared. It is no wonder that a Bangalore based project that produces videos, books, and online materials weaving the composite culture of India and has several awards for its 35 36 37

These lines are from Sabad or lyric #83 in Bijak, Kabir Sahab (Bombay: Shri Venkateshvar Press, 1904): 367–68. The translation is mine. Linda Hess and Sukhdev Singh, trans. The Bījak of Kabir (Delhi: Motilal Banarasidass, 1986): 96. David N. Lorenzen, “Religious Identities in Gorkhnath and Kabir: Hindus, Muslims, Yogis, and Saints,” in Yogi Heroes and Poets: Histories and Legends of the Naths, ed. David N. Lorenzen and Adrian Munoz (Albany: State University of New York Press, 2011): 19–50 at 35.

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work in promoting interfaith understanding began with an inspiration to trace Kabir performances in diverse contexts and is named after him – “The Kabir Project”. On its web portal (launched 2003) and YouTube channel, we find videos not only of performances of Kabir songs in a rich diversity of contexts – Hindu, Muslim, sacred, secular, folk – but also of for poets like Baul singer-poets of Bengal/Bangladesh, and Sufi Bulleh Shah of Pakistan. Responses to these reflect the same fervour of warm interfaith exchanges among the inheritors of the composite devotional culture and others.38 These interactions give us a glimpse into its efficacy in evoking feelings of, or at least aspirations for, interreligious harmony. Many in the modern times have looked back to it for inspiration. 5

Saint-poets’ Songs in Public Life – Modern Times

The most well-known advocate of the efficacy of saint-poet’s songs in ­construction of a harmonious society was Gandhi. He notes movingly in a personal letter that in an interreligious commune he had established in South Africa – Phoenix Settlement (1904) – he had observed that singing of bhajans alongside Islamic and Christian hymns, greatly helped the residents bond. Often, non-Hindus and Hindus made a particular hymn they liked meaningful for themselves by replacement of just one word with a term from their own traditions. Among the popular hymns in that commune, Narasinha’s Vaishnava janato, the song discussed at the beginning, figured prominently.39 After his return to India in 1914, he established various communes on a similar model and made singing of hymns a part of their daily routine.40 During his early years in India, he gave Narayan Khare, the musician who composed the current melody for Vaishnava janato, the responsibility of compiling Ashrambhajanavali (collection of Ashram bhajans, published in 1922), which also includes a few non-Hindu hymns. Gandhi also incorporated singing of hymns regularly in his public engagements. Vaishnava janato figured in all of them. This song was especially dear to him for it provided him with a perfect text to convey his ideal of what it means to be religious, fully human, and inclusive. It also allowed him to challenge the orthodox definition of “Vaishnava” that supported discrimination toward Dalits. During his famous on foot Salt March to Dandi in 1930, it was sung repeatedly on the way. His use of the song in public life to 38 39

For information on the Kabir Project – http://www.kabirproject.org/about%20us. M.K. Gandhi, Collected Works of Mahatma Gandhi, Vol. 44 (Delhi: Govt. of India, 1971): 189–190. Letter dated Sept. 30, 1930. 40 Ibid.

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inspire people to define religiousness in terms of human sympathy has transformed it into a globally performed song of compassion and moral integrity. Today it circulates internationally in several events promoting harmony. An especially noteworthy instance of it was a peace march termed “international Dandi March,” undertaken by political activists from India and Pakistan who travelled to Gaza via Iran, Syria, and Egypt (December 2010–January 2011). The group, composed of Hindus, Muslims, Buddhists, and atheists sang Vaishnaava janato at many important meetings on the way.41 In the independent India post-Gandhi, even as religious violence has periodically kept erupting in the secular democratic nation, sometimes in bhakti’s very name, several journals, NGO s, think tanks, and now web portals have continued efforts to bring attention to the liberal inclusive messages of bhajans. To cite just two examples in addition to the Kabir Project mentioned above, in 1989, the tenth anniversary issue of Manushi, a women’s journal, highlighted the mystical insights, poetic brilliance and fearless self-expressions of women saint-poets. Sahmat, a Delhi based NGO, has recurrently organized events that project the shared heritage given by bhakti-Sufi saint-poets.42 It is not the case however, that all Indian leaders or intellectuals have praised bhakti songs for their egalitarian messages in unison. B. R. Ambedkar, a contemporary of Gandhi who was one of his fiercest critiques and the most articulate representative of the Dalits, was of the view that even though the bhakti poets of medieval India propagated equality in the realm of religion, their songs would be ineffective in efforts for eradication of untouchability, since historically, they had not led to substantial changes to the Hindu social organization.43 In more recent times, Braj Ranjan Mani has claimed that many Brahmin saint-poets tried to sabotage the Dalit cause of resistance by joining the “bhakti movement”.44 Several western scholars have also discussed the discrepancy between the assertions about bhakti’s egalitarian effect by some of its followers and the ground reality.45 Indeed discrimination against Dalits in some forms continues. The religious violence in the riots that broke out after 41 42 43 44 45

Article by Subhajit Roy, Indian Express, January 11, 2011. https://indianexpress.com/article/news-archive/web/gandhigiri-with-hamas-ahmed inejad/. For references for Sahmat and Manushi see Hawley (2015): 333–336. For Ambedkar’s views, see “A Reply to the Mahatma by Dr. B. R. Ambedkar” available at Columbia University’s digital archive, https://ccnmtl.columbia.edu/projects/mmt /ambedkar/web/index.html. Braj Ranjan Mani, Debrahmanizing History: Dominance and Resistance in Indian Society (Delhi: Manohar, 2005): 181–183. See, for example, the fine essays in the section titled “Situations” in Bhakti and Power, cf. 11.

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the destruction of the Babri mosque in Ayodhya in the name of bhakti to Lord Ram in 1992 by a group of Hindus as well as in the ones that shook Gujarat in 2002, is also well-known. In view of these, any overarching claims for bhakti’s ability to transform society are rendered baseless. Valid critiques by leaders and scholars should be well-taken. Yet regarding the saint-poets, it is helpful keep in mind that they were not a part of a social reform movement. They gave songs focusing on love, which, as the poet Andrew Schelling suggests, “circumvent debate and go directly to the human heart, “showing “how feeble most social assumptions are.”46 6 Conclusion As the above overview of the trajectory of bhakti within the long history of the Hindu tradition shows, since its seedlings in the multivocal verses of the RV, it has grown steadily in its nature and scope over millennia, responding to the specific cultural needs in the various contexts of its spread. As its early form of individual spiritual discipline gradually turned into a more participatory form in the medieval period, its inherent inclusiveness expanded and found a powerful expression in the songs of regional saint-poets. This form of bhakti allowed marginalized voices of the Hindu society to be heard and led to avenues that intersected with diverse traditions in their milieu including Sufi and Sikh. At these intersections, developed components of a shared cultural heritage that continue to bring rich moments of harmony for innumerable South Asians who otherwise retain their distinct religious identities. These songs with inspiring messages of love, equality, and inclusiveness have been integrated into processes of social reconstruction and peacebuilding in modern times by many, notably Gandhi. Certainly, bhakti’s potential for fostering intra and interreligious harmony is not fully realized. Its followers in various currents, who refer to messages of equality, have fallen short in fully eradicating the continued prevalence of caste discrimination. Nor has the healing power of bhajans been able to prevent the conflicts of Hindu groups with other religious communities, at times in the very name of bhakti. The question is: Can any religious, social, or political movement claim a perfect achievement of its ideals? Bhakti was never a singular social resistance, or for that matter, religious movement. Yet, in its musical form of songs, it has kept moving through diverse regions, religious communities, and media, and has moved the hearts of countless people to engage in warm interreligious exchanges for centuries. 46

Andrew Schelling, “A View from North America: Mirabai, Lal Ded, and Jayadeva,” in Mānoa 22, no. 2 (2010): 56.

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For those Hindus, who hope to contribute to the building of a peaceful world with interreligious harmony, the challenge is to work toward greater realization of the potential of bhakti, their religion of the heart, one song at a time. Bibliography Al-Biruni, Muḥammad ibn Aḥmad. Alberuni’s India (abridged), trans. Edward C. Sachau, ed. Ainslie Thomas Embree. New York: Norton, 1971. Ambedkar, B. R. “A Reply to the Mahatma by Dr. B. R. Ambedkar” digital archive, https://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/index.html. Asani, Ali. The Harvard Collection of Ismaili Literature in Indic Languages: A Descriptive Catalog and Finding Aid. Boston: G. K. Hall, 1992. Berger, Peter. “Secularism in Retreat,” The National Interest, no. 46 (1996/1997): 3–12. Berger, Peter. “The Pluralistic Situation and the Coming Dialog between the World Religions,” in Buddhist- Christian Studies, 1 (1981): 31–41. Cort, John. “Bhakti in the Early Jain Traditions: Understanding Devotional Religion in South Asia” in History of Religions 42, no. 1 (2002): 59–86. Eck, Diana. “Professor Diana L. Eck Defines Pluralism” https://pluralism.org/about. Eck, Diana. “Prospects for Pluralism: Voice and Vision in the Study of Religion,” in Journal of the American Academy of Religion, 75, no 4 (2007): 743–776. Esmail, Aziz. A Scent of Sandalwood: Indo-Ismaili Religious Lyrics (Ginans). Richmond, Surrey: Curzon, 2002. Gandhi, M. K. Collected Works of Mahatma Gandhi, Vol. 44. Delhi: Govt. of India, 1971. Hale, Chris. “Reclaiming Bhajan,” Mission Frontiers (June 2001). https://www.mission frontiers.org/issue/article/reclaiming-the-bhajan, accessed January 3, 2022. Hamberg, Eva M. “Religious Monopolies, Religious Pluralism, and Secularization: The Relationship Between Religious Pluralism and Religious Participation in Sweden” in International Journal of Research on Religion 11 (2015): 205–216. Hawley, John S. A Storm of Songs: India and the Idea of the Bhakti Movement. ­Cambridge, MA: Harvard, 2015. Hawley, John Stratton Christian Novetzke, and Swapna Sharma. eds. Bhakti and Power: Debating India’s Religion of the Heart. Seattle: University of Washington Press, 2019. Hess, Linda and Sukhdev Singh. trans., The Bījak of Kabir. Delhi: Motilal Banarasidass, 1986. Kabir. Bijak, Kabir Sahab. Bombay: Shri Venkateshvar Press. 1904. Khan, Muhammad. https://www.youtube.com/watch?v=kIvCtJEispY, accessed Janu�ary 2, 2022. Laub, Zachary. “Hate Speech on Social Media: Global Comparisons”, the Council for Foreign Relations, last modified June 7, 2019.

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https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons. Lorenzen, David N. “Religious Identities in Gorkhnath and Kabir: Hindus, Muslims, Yogis, and Saints,” in Yogi Heroes and Poets: Histories and Legends of the Naths, ed. David N. Lorenzen and Adrian Munoz. Albany: State University of New York Press, 2011: 19–50. Maitra, Keya. Philosophy of the Bhagavad Gita, A Contemporary Introduction. London: Bloomsbury, 2018. Mani, Braj Ranjan, Debrahmanizing History: Dominance and Resistance in Indian S­ ociety. Delhi: Manohar, 2005. Mehta, Narasinha, Narasinha Mehta ni Kavyakrutio, ed. Shivalal Jesalpura. A ­ hmedabad: Sahitya Sanshodhan, 1981. Pechilis-Prentiss, Karen. The Embodiment of Bhakti. New York: Oxford, 1999. Pradhan, Shiraz. “Ideas of One Humanity, Love and Peace in One Religion,” https:// simerg.com/literary-readings/ideas-of-one-humanity-and-love-and-peace-in -world-religions-comparative-study-of-ginan-hum-dil-khalak-with-a-hindu-bhajan /, accessed January 2, 2022. R. Parikh https://www.youtube.com/watch?v=KyeXubzKUxk, accessed January 2, 2022. Schelling, Andrew. “A View from North America: Mirabai, Lal Ded, and Jayadeva,” in Mānoa 22, no. 2 (2010): 53–71. Shukla-Bhatt, Neelima. Narasinha Mehta of Gujarat, A Legacy of Bhakti in Songs and Stories. New York: Oxford, 2015. Shukla-Bhatt, Neelima. “Performance as Translation: Mīrā in Gujarat” in International Journal of Hindu Studies 11, no. 3 (2007): 273–278. Roy, Subhajit. “Gandhigiri with Hamas, Ahmedinejad,” Indian Express, January 11, 2011. https://indianexpress.com/article/news-archive/web/gandhigiri-with-hamas-ahm edinejad/. The Bhagavad Gita. trans. Eknath Easwaran. Tomales, CA: Nilgiri Press, 2004. The High Commission of India, Islamabad, Pakistan, “‘Vaishnav Jan’ by Shafqat Amanat Ali. #bapu@150.”. Video: https://www.youtube.com/watch?v=A8K5G3YbXFE, accessed January 3, 2022. The Indian Express. “Pakistani Singer Shafqat Amanat Ali’s Soulful Rendition of ­Vaishnava janato is Going Viral”, October 5, 2018. https://indianexpress.com/article /trending/viral-videos-trending/pakistani-singer-shafqat-amanat-ali-sings-soulful -rendition-of-vaishnava-janato-5387763/, accessed December 18, 2021. The Kabir Project – http://www.kabirproject.org/about%20us, accessed January 3, 2022. The Rig Veda. trans. Ralph T. H. Griffith, London: Forgotten Books, 2008. The Upanishads. trans. Eknath Easwaran. Tomales, CA: Nilgiri Press, 2000. Wink, André. Akbar. Oxford, UK: Oneworld, 2009.

Chapter 3

Religious Pluralism and Freedom in Islam Muhamad Ali 1 Introduction Religious pluralism and freedom are modern concepts, but these can be ­studied from different angles, including one that focuses on the theological and ethical concepts in the Qurʾan, the interpretations in the commentaries and scholarships throughout history.1 This chapter seeks to offer an overview of the way the Qurʾan addresses different religions and communities, the way Muslim commentators and scholars view the fate of the others, and the way they formulate ethical engagement with the others. Muslim normative views and attitudes toward religions and religious communities, religious pluralism, and religious freedom, are diverse and multi-dimensional. In Christian contexts, theological and philosophical categories concerning one’s attitudes toward others are broadly divided into exclusivism, inclusivism, and pluralism. In these studies, exclusivism is described as the conviction that there is only one’s own path to salvation and no salvation is possible in the others’ paths. Inclusivism accepts others only as partially true and other religions are viewed from one’s own terms. Religious pluralism recognizes that there are many truths outside one’s own religion. There are forms within each category that scholars have invented and debated.2 These broad theological positions can be applied to Islamic contexts, but Islamic views and attitudes as formulated by Muslim scholars combine belief, law, and ethics. This chapter offers a brief overview of the ways Muslim scholars have defined Islam and others considered ‘non-Muslims’, involving such concepts as islam, kufr, shirk, 1 See for example, Lloyd Ridgeon, ed., Islam and Religious Diversity, 4 vols. (London and New York: Routledge, 2012); Daniel Philpott, Religious Freedom in Islam: The Fate of A Universal Human Right in the Muslim World Today (Oxford: Oxford University Press, 2019); Harold ­Coward, Pluralism in the World Religions: A Short Introduction (Oxford: Oneworld, 2000), vii; Madjid Fakhry, “An Islamic Perspective”, in Chad Meister, ed., The Oxford Handbook of R ­ eligious Diversity (Oxford: Oxford University Press, 2011), 393–402. 2 Alan Race, Christians and Religious Pluralism: Patterns in the Christian Theology of Religions (London: SCM Press, 1983); Diana Eck, “Is Our God Listening? Exclusivism, Inclusivism, and Pluralism”, in Roger Boase, ed., Islam and Global Dialogue: Religious Pluralism and the Pursuit of Peace (Burlington, VT: Ashgate, 2005), 21–49. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_004

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and ahl al-kitab. It then discusses different normative Muslim positions on the fate of non-Muslims, addressing the concepts of iman (faith) and amal shalih (good action) as the criteria for salvation and taqwa (righteousness); it finally examines some of the ethical rules towards other people, such as qital (fighting), lakum dinukum waliyadin (your religion is yours and mine is mine), la ikraha fi al-din (no compulsion in religion), fastabiqul khairat (competition in goodness), daʿwa (call to the path of God), and kalima sawa (common word); and often connected to the modern notions of religious pluralism, tolerance, and freedom. 2

Constructing the Selves and Others: ‘Muslim’ and ‘Non-Muslim’

Muslims’ attitudes toward the others shape and are shaped by their interpretation of Islam and practice of being Muslim. They consider the Qurʾan the final and perfect divine scripture, confirming and correcting the previous revelations, but Muslim scholars disagree on whether everyone during and after Muhammad should accept the revelation to Muhammad in order to be considered Muslim and a recipient of salvation. The word ‘Islam’ means self-surrender or submission to God, but the mainstream Muslims in the modern time emphasise Islam as a formal and distinct system of religion because they followed the normative tradition of Muhammad, or the hadith narrative informing the pillars of Islam: there is no god but God and Muhammad is the Messenger of God, performing regular prayers, fasting, giving alms, and ­performing the pilgrimage to Mecca, and the pillars of the faith: belief in God, angels, scriptures, prophets, the Day of Judgment and good and bad decrees.3 The mainstream Muslim scholars hold that others who do not accept the Qurʾan and Muhammad are considered ‘non-Muslims’. The second strand of interpretation puts an emphasis on Islam in its ­general and universalised meaning with its diverse manifestations in all times and places. Some Muslim scholars view Islam as a universal religion for humankind on the basis of the Qurʾan which confirms all the revelations and declares that 3 The Qurʾan mentions another category hanif, twelve times, in Meccan and in Medinan chapters, as can be translated as one who inclined to truth or a straight path, and in the plural hunafa, one neither a Jew nor a Christian (3:67), but an obedient or devotionist to God. A hanif was used to refer to Ibrahim, not as one of the associators (mushrikun) (2:135), but in other verses it is joined with Muslim or its verb it is used as equivalent to Muslim. The Qurʾan does not use hanif and hunafa as a separate religion or a community. Charles J. Lyall, “the words ‘hanif’ and ‘Muslim’”, The Journal of the Royal Asiatic Society of Great Britain and Ireland (Oct 1903), 771–784.

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all the prophets including Abraham, Moses, and Jesus are Muslims (10:37; 2:89), although they do not call the followers of Moses and Jesus ‘Muslims’. These two different emphases in meaning-making – a Muslim understood as being only the follower of the Qurʾan and Muhammad and a Muslim interpreted as being anyone who submits to God and does good deeds regardless of their position to Muhammad and religious affiliation – affect the way Muslims scholars and people have viewed other religions and other religious communities. The construction and contestation of Muslim selves and non-Muslim others has been complex because the Qurʾan itself contains binary categories on some passages and non-binary, hierarchical categories of human quality given to individuals and groups or communities on other passages. The word iman or belief, and muʾmin as believer are often contrasted with kufr, or disbelief and kafir as non-believer. But the uses in the Qurʾan are diverse and contextual. The term kufr, literally meaning ‘to cover’, ‘to reject’, or ‘to be ungrateful’, has been interpreted and used in different ways in the Qurʾan and other secondary texts and interpretations. The Qurʾan considers belief in God as being Jesus al-Masih a form of kufr, although it does not call the nashranis, or Christians (as many say), kafirun: “Those who say that God is the Messiah son of Mary have disbelieved (kafara) when the Messiah told the Children of Israel to worship God instead. They say God is the third of the three “(5:72–73). In a number of contexts, the Qurʾan calls the Christians ahl al-kitab, or the people of the book. During the time of Moses, those who disobeyed the Torah were regarded as the kafirun (5:44), but the Qurʾan includes them to be the people of the book. The term kafirun or kuffar in the plural have been understood as those who show an ingratitude to God’s blessings and reject a revelation or a prophet of God in particular times. The category kuffar has become used by many Muslims to name the individuals or peoples who reject Muhammad. The term kafir, ‘infidel’, ‘nonbeliever’, ‘unbeliever’, and ‘non-Muslims’, have often been used interchangeably despite their multifaceted meanings and uses in the scripture and traditions. Different Muslim scholars have interpreted those Qurʾanic categories of beliefs and peoples in either descriptive or prescriptive ways. The ‘negative’ qualities associated with kufr and shirk are linked to the polemics with the mushrikun and the people of the book, especially the Jews and Christians who showed negative attitudes toward Muhammad and his message.4 Scholars have debated on which Jews and which Christians particular passages refer 4 Abu Bakr Muhammad Zakariyya, Al-Shirk fi al-Qadim wa al-Hadith, 2 vols (Riyadh: Maktabah al-Rushd, 2001); Marilyn Robinson Waldman, “The Development of the Concept of Kufr in the Qurʾan”, Journal of the American Oriental Society, vol. 88, No, 3 (July–Sep. 1968), 442–455;

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to. Many scholars say that the Qurʾan refers to Jewish individuals and communities who lived in Medina, and the Children of Israel of the past – the followers of Moses. At the same time, the Qurʾan refers to Moses as the prophet for the Jews, who had the scripture Torah and their houses of worship, beliefs, laws, and actions. The Qurʾan asks the Jews to follow the Torah as the law of God. This has become multifaceted as later textual traditions have emerged such as the hadith and other texts in the classical, medieval and modern times, which makes Muslims’ views and attitudes toward Jews and Judaism – as well as Christians and non-Muslims generally, even more diverse and complex.5 The Qurʾan contains praises and criticisms towards the Jews or the Christians with whom Muhammad and his companions interacted, as well as towards the Jews and Christians of the previous times. For example, the Qurʾan condemns the Jews but praises the Christians: “Hi Muhammad, you find the strongest in enmity toward you are the Jews and those who associate God with others, and find the nearest in love with you those who say we are Christians because among them are priests and monks and because they are not arrogant (5:82).” On this verse, the classical exegete Muqatil ibn Sulayman refers the Jews as the Jews of Medina who helped the mushrikun of Mecca in fighting against Muhammad and his companions, and points to the Christians who hurried in accepting the faith and showing no arrogance.6 In other contexts, the Qurʾan praises the Jews and criticizes Christians. Still in other places, the Qurʾan mentions the two groups side by side. The verse “neither the Jews nor the Christians would be pleased to you until you followed their religion (2:120)”, was revealed and interpreted in connection with the Jews of Medina and the Christians of Najran. At the same time, the Qurʾan suggests that Jews and Christians were not a unified group of people: “The people of the book were not the same; among them there were those who were the upright community as they were reading the verses of God at night and prostrating before God (3:113).” Another verse says that “Among the people of the book are those who believe in God and in the revelation sent to Muhammad and to them, worshipping God in sincerity and were not selling the verses for their own benefits (3:199–200).” On this same verse, Muqatil bin Sulayman writes that among the people of the book were a just people, those among the Jews who believed in God and Harifuddin Cawidu, Konsep Kufr dalam Al-Qurʾan: Suatu Kajian Teologis dengan Pendekatan Tafsir Tematik (Jakarta: Bulan Bintang, 1991). 5 Among Muslim scholars, see Fazlur Rahman, “Islam’s Attitude toward Judaism”, The Muslim World, 7, 23, 1, 1982, 1–13. See also Meir N. Bar-Asher, Jews and the Qurʾan (Princeton: Princeton University Press, 2021). 6 Muqatil ibn Sulayman, Qurʾan 5:82. www.altafsir.com.

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said the word of justice, such as Abdullah ibn Salam and his friends, and those among the people of the Gospel of Isa ibn Maryam.7 The Qurʾan’s views and attitudes towards the Jews and/or Christians have influenced Muslim scholars and individuals to the present day to grapple with the meanings either by considering the specific contexts or taking the general meanings. Muslim scholars have disagreed on whether the passages refer to certain individuals, certain groups, certain beliefs, or practices, certain ­mushrikun or associationists, certain Jews, Christians, Zoroastrians, Sabeans, in particular times and places, or all these other religious communities before the time of the Prophet Muhammad and/or in all times and places. They also differ on whether Qurʾanic passages are descriptive of the groups or prescriptive of what Muslims should believe and act, and on whether the terms of faith and unfaith, belief in God and associating God with others are religious or socio-political.8 These are some of the variables and factors contributing to the different Muslim views of the fate of the individuals and communities considered ‘non-Muslim’, a topic to which we now turn. 3

Regarding The Fate of ‘Non-Muslims’

On the fate of the individuals and people regarded as non-Muslims, Muslim scholars have taken at least four different theological positions. 3.1 The Exclusive The exclusive position holds a belief in Islam in its final form through the Qurʾan and Prophet Muhammad as the only path to salvation. This position seems in line with the majority view of self-defined Muslims globally today.9 Their argument is based on the general meanings of the Qurʾanic passage: “­verily Islam is the religion by God…” (3:19) and the passage,” whoever seeks the religion other than Islam will not be accepted from him and he will be among of the losers in the hereafter” (3:85). Many also support the belief by using the hadith on the pillars of Islam and the pillars of the faith as specifying the general muslim and muʾmin, believer. To them, Islam should remain the 7 Muqatil ibn Sulayman, Tafsir Muqatil ibn Sulayman, Qurʾan 3:113, 199–200. www.altafsir.com 8 See Toshihiko Izutsu, Ethico-Religious Concepts in the Qurʾan (Montreal & Kingston: ­McGill-Queen’s University Press, 2002). 9 https://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society -interfaith-relations/ accessed on January, 31st, 2022.

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formal religion sent down through Muhammad as the pure, uncorrupted, and final revelation until the Day of Judgment. They interpret the verses, “Verily those who believe, Jews, Christians, and Sabean, whoever believes in God and the Final Day and does good, they will be rewarded from their Lord, and they will have no worry and no grief. “(2:62) and (5:69) to apply to the Jews, Christians, Zoroastrians, and Sabeans who lived before they knew and heard about the message of Muhammad. 3.2 The Inclusive A second position, which may be described as the inclusive, allows the possibilities of the salvation of anyone who believes in God and the Final Day and does good deeds, without the requirement of following the path of Muhammad, stressing the general meaning of the verses 2:62 and 5:69. Egyptian scholars Muhammad Abduh (d.1905) and Muhammad Rashid Rida (d.1935) comment on this verse (2:62) quite extensively in Tafsir Al-Manar. Rida who wrote the preaching of his teacher Abduh and his part of the commentary, comments that the Law of God guides the relationships between nations in the past and the present. Rida points to another Qurʾanic passage warning any religious group claiming salvation only for themselves: “it is neither the illusion of yours, nor the illusion of the people of the book (4:123).” Rida argues that there is no requirement for salvation to the belief in Muhammad because the speech in the interaction with God is for every community who believes in a prophet and revelation within their particular contexts and laws. Rida says that happiness does not come with religious nationality or identity (jinsiyyah diniyyah) but it depends on with a correct faith that has power over the soul and an action that people benefit. To support his argument, Rida cites a hadith, “the faith is not with wishful thinking, it is what is revered in the heart and what action proves it.” Rida tells a story, “Muslims, Jews, and Christians met; the Jews said to the Muslims: we are better than you. Our religion was before your religion, our scripture was before your scripture, our prophet was before your prophet, and we are on the religion of Abraham and no one except the Jews will go to Paradise. The Christians say the same. Muslims say the same: our scripture comes after your scripture, our prophet is after your prophet, our religion is after your religion, and you have been commanded to follow us and to leave your command so we are better than you and we are on the religion of Ibrahim, Ismael, Isaac, and no one except people of our religion will enter ­Paradise. The truth, Rida argues, is that the people of religions – those whom the call by the prophets reach them according to its requirement – if they believe in God and the Last Day on the correct way and do the good deeds they will be saved

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and rewarded. Even if they live after the Qurʾan, they are not required to follow the specific path of the Prophet Muhammad.10 In a similar vein, another Egyptian scholar Gamal Al-Banna (d. 2013), holds the view that Muslims and non-Muslims have similar characters and God allows the human souls to be either good or evil. To him, the Qurʾan accepts the existence of Judaism, Christianity and other religions and their coexistence. Judaism, Christianity, and Islam have the same patriarch, Abraham, and they are his children and family. Religious pluralism (al-taʿaddudiyyah) occurs due to historical reasons and the plurality of needs, characteristics, times, and circumstances. Like Rashid Rida, Gamal Al-Banna believes that the Qurʾan prohibits a group from claiming superiority and believing that others are simply nothing, and from claiming Paradise only for themselves and Hell for all the others. Al-Banna contends that the decision should be the privilege of God. Citing the Qurʾan (4:123), he asserts that the matter of salvation was not according to the wishes of Muslims, the people of the book or others. God’s mercy is without limit. Guidance comes from God alone, not the prophets, not humans, he asserts. Gamal Al-Banna further argues that the shirk stated in the Qurʾan 27:14 as the unforgiven sin is the shirk resulting from intransigence and arrogance. He refers to other verses: 2:62; 2:113; 3:84; 11:118–119; and 109:1–6. For him, the Qurʾan is critical of Jews and Christians, but also praises groups among them (3:75; 3:113–115; 3:199; 5:83) and affirms and recognises their scriptures as containing guidance, light and law (5:46–47). As for the religions in China, India and Japan, Al-Banna declares: “We do not know for sure if God sent a messenger to the peoples of China, India, and Japan, but we can surely say that God punishes not a people until He sent a messenger (17:15). It is a mistake to judge the followers of Buddha and Confucius, and they – more than Muslims, Christians and Jews – will necessarily go to Hell.”11 Indonesian author and scholar Haji Abdul Malik Karim Amrullah or Hamka (d.1981) emphasises good faith and good deeds as the fundamental ­requirements for salvation, but he argues that a Muslim, a Jew, a Christian, a Sabean, who claimed to believe in God in words but did not prove it in good deeds, would receive no rewards. He agrees that the inclusive verses 2:62 and 3:83, were not abrogated by other exclusive verses on Islam being the religion accepted by God (3:85). All these passages confirm the essence of Islam: belief in God and the Final Day and good deeds. However, to Hamka, with the coming of Muhammad, all the Jews and Christians need to accept Muhammad as the 10 11

Abduh and Rida, Al-Manar. www.altafsir.com. Gamal Al-Banna, Al-Taʿauddudiyyah fi al-Mujtamaʾ al-Islamy (Cairo: Dar al-Fikr al-Islami, n.d.), 4–5, 23, 26–27, 32–37.

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messenger of God for them to truly submit to God or muslim. If they refused to accept the prophethood of Muhammad, the Hell would be their abode in the hereafter. To justify this assertation, Hamka cites not the Qurʾan, but the saying of the Prophet Muhammad, “In the name of God who has all the power over me, anyone from this community who is a Jew or a Christian but does not believe in me will go to Hell”. That is the matter of belief, he asserts. In social relations, Hamka says that the Qurʾan invites tolerance and peaceful coexistence, and against blind fanaticism and hatred among religious communities. The Prophet Muhammad was a model for such peaceful coexistence when he welcomed the Christians from Najran in his home and when he called the Christians and the Jews: “O the people of the book!”12 Another element of an inclusive view of others who believe and does good is to refrain from judging the fate of others in the hereafter. There are many Muslim scholars who prefer letting God decide on the theological differences in the hereafter. Indonesian Qurʾanic exegetes such as Muhammad Quraish Shihab (b.1944) comments that God’s mercy was not restrictively granted to Muslims who followed Muhammad. To illustrate his point, Shihab cites a ­Tunisian Qurʾan commentator Muhammad al-Tahir Ibn Ashur (d. 1973), whose exegesis contains a story when he visited the tomb of Petrus in Rome to ask for his blessings as he believed that Petrus was one of the hawariyyun, the loyal companions of Prophet ‘Isa (3:52; 61:14). Shihab, however, disagrees with a position that holds that the adherents of the religions mentioned in the Qurʾan, when they believed in God and the Final Day and did good deeds, they would necessarily find salvation, because this view will almost make all religions the same. To Shihab, religions are fundamentally different in faith and ritual. He asked rhetorically, “how can Jews and Christians be the same if they had ­criticised each other?” It is true, Shihab contends, that God has the prerogative right to granting people paradise or hell, but this divine right does not make all ­religions the same by His side. It should be recognised, Shihab asserted, that religious communities should live in harmony and peace with each other, but this should be achieved not by sacrificing the religious doctrines about one’s salvation. To him, the better way is to live in peace and leave God to decide in the Last Day on which religion is approved and which is wrong, and to decide on who receives peace and paradise and who receives fear and grief. 13 12 13

Hamka (Haji Abdulmalik Abdulkarim Amrullah), Tafsir Al-Azhar, vol. 1 (Singapore: ­ ustaka National, 1982), 202, 209, 226. P Muhammad Quraish Shihab, Tafsir Al-Mishbah: Pesan, Kesan dan Keserasian Al-Qurʾan, vol. 1, ed. 5 (Jakarta; Lentera hati, 2005), 213–216.

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3.3 The Pluralist Another position, the pluralist, holds that all religions possess a common reality: inner, transcendental reality, often described as God in different names. This is particularly prevalent among Muslim theologians, philosophers, and Sufis who stress the significance of sincerity of faith, in opposition to the outer expression of the religions. A Sufi-philosopher Ibn ‘Arabi (d. 1240) for example, has been often cited to have taken this line of understanding. Ibn ‘Arabi has been cited to have interpreted the Qurʾan 2:62 in an allegorical way: “those who believed because of just imitation (taqlidi), those who embrace the exoteric (dhahirun), those who are esoteric (batinun), those who venerate the angels of reasons with the walls of the rational beings, the spiritual and powerful stars with the walls of flaws and illusions; those among them who believe with true belief (haqiqi) in God and the resurrection and affirm the knowledge of unity of God and the day of resurrection and did all that benefits them to the meeting with God and attainment of bliss in the Final Day, they will receive the eternal spiritual reward on the presence of God in the form of the gardens of actions and attributes, and there will be no fear from the punishment of their actions and no grief with the missing of the manifestations of the attributes.14 Contemporary Indonesian scholars who study and appreciate Ibn ‘Arabi and other Sufis such as Jalaluddin Rumi, as well as scholars of comparative r­ eligion, hold that there are many religions originating from the same transcendental source and leading to the same goal: God. Contemporary Indonesian scholar Kautsar Azhari Noer agrees with the main aspects of Christian theologian John Hick’s theory of religious pluralism that suggests that “the great world religions are different human responses to the same ultimate transcendent reality.” Kautsar Azhari Noer admits that as a pluralist, he still practices Islamic ritual such as prayer, fasting, almsgiving and pilgrimage to Mecca and he remains a proud Muslim, but he believed that the road to salvation belongs not only to his religion but to many other religions, which center on the same God. To him, religious pluralism does not ignore differences and it is not a relativism which means no conviction in any truth. He affirms the belief in the Qurʾan as the holy, absolute, and true book for him as a Muslim, but interpretations, understandings, readings of the holy book are not absolute and could be right or wrong. He says that his faith as a Muslim did not hinder him from recognising the truth of other religions. He tells a story about how he changed from being religiously exclusive who claimed he belonged to the saved group, and charged others as the damned, during his early ages, to being pluralist as he 14

Ibn ‘Arabi, Tafsir Al-Qurʾan ibn ʿArabi, Q. 2:62. www.altafsir.com.

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had learned about other religions, Sufism, and participated in interfaith dialogues. Shifting from being exclusive to being pluralist mean that he is now a believer of many truths leading to salvation, he asserts. In his view, others who believe in God and the Final Day and does good (2:62, 5:69, 5:58) will go to heaven as well. In line with other scholars such as Muhammad Asad (d.1992), Kautsar Azhari Noer interpreted islam in 3:19 as the self-surrender unto God, an attitude, a virtue, or a quality, rather than a religious system and identity associated with Muhammad and the Muslim community. Fo him, this universal meaning of Islam is shared in other scriptures, such as the Hindu Bhagavad Gita: “one who works without attachment, who submits all his actions to the divine, not touched by sins like a leaf untouched by water.” In his proclamation, Kautsar Azhari Noer also endorses a perennial philosophy formulated by German philosopher Frithjof Schuon (d. 1998) and Iranian-American scholar Seyyed Hossein Nasr, who taught the transcendent unity of religions. Thus, to Kautsar Azhari Noer, it is not sufficient to be just inclusive or mere tolerant with other religious communities in the social domains; it is necessary for him to be a pluralist theologically by accepting their truths and paths to salvation. 15 Another point of argument has been put forward to promote a pluralistic standpoint emphasising the Qurʾanic concepts of righteousness or taqwa, and the innate nature of all human beings, fitra. A US-based scholar Jerusha Tanner Lamptey, on her argument for a Muslima theology of religious pluralism, seeks to reconcile different layers in religions: sameness and difference, the universal capacity of all of humanity, freedom, and accountability that forms the foundation of the Qurʾanic discourse. She argues that it is possible for individuals to fully manifest the innate awareness of taqwa, through belief, recognition and help, without following the lateral particularities revealed in Muhammad. She sustains the idea that humanity was once umma wahida (single community) but they became divided. Citing the Qurʾan (49:13), Lamptey suggests that the lateral difference exists so that people may recognise one another and pursue interaction across their boundaries. She believes that the self and the other stand in the same relationship with God. Lamptey says that lateral difference does not place one in a privileged status before God or reduce the other ­simply to a marginal or derivative status. There are written revelation and natural signs, and the Qurʾan states that the fitra (innate nature) is found in every human being. Like the inclusive scholars, Lamptey contends that on the people of the book, the concept should be inclusive of all revelations. 15

Kautsar Azhari Noer, “Mengklasifikasi Arti Pluralisme Agama”, unpublished paper ­ resented at the Discussion, Faculty of Ushuluddin, State Islamic University, Syarif p Hidayatullah, Jakarta, March 17, 2021.

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Confirming the earlier revelations, the Qurʾan exhorts those who had already received revelation to uphold it and the Qurʾan critiques them for failing to do so and calls all people to obey a messenger and calls not to obey the same messenger. She asserts that “the Qurʾan cannot be envisioned as a taxonomy of religious difference, nor can it be conceived as a verdict on religious difference, or a yardstick by which humans may definitely judge each other on the basis of this difference. Such judgment is the province of God alone on the Day of Resurrection.” She invites people to realise that “the divine and universal nature of this revelation is bound to its ability to continuously engage, speak, guide, and challenge and to the human ability to continuously embrace and grapple with its illuminative complexity.” 16 Among Muslim scholars who formulate and sustain the argument for ­religious inclusivism and pluralism as many religious paths leading to the same goal, they take the general meaning of the Qurʾan 2:62 and emphasise the divine qualities of love and vastness of grace to all His creations. Muslims and non-Muslims, righteous and sinful will receive a final judgement in the hereafter, with different levels of punishments and rewards, but all will eventually receive God’s mercy, in line with Qurʾan 7:156: “My mercy covers everything.” They assert that believers and non-believers, Muslims and non-Muslims, are the children of Adam, who possess the equal human dignity given by the same God (17:70) and who serve as the viceregent of God mandated for taking care of the earth (2:30). In the modern time, there have been many Muslim responses to the categories of religious exclusivism, inclusivism, and pluralism. For example, the position ‘non-reductive religious pluralism’ has been proposed by Muhammad Legenhausen. In a critique of John Hick’s religious pluralism seen as reductive of the beliefs, ritual and ethical teachings of individual religions, Legenhausen proposes a non-reductive religious pluralism. In this view, Muhammadan Islam requires the belief in oneness of God, prophecy, and the resurrection, as the culmination of all previously revealed religions in its belief, ritual, and laws that all humanity is invited to embrace, while admitting that a plurality of religious traditions may contain divine light and truth. Legenheusen cites select passages of the Qurʾan, suggesting Islam’s criticism of Jewish or ­Christian claims of salvation (2:110–211); the categorising of kafir to those who only believe in some prophets and reject other prophets (4:150–51) and cites a hadith that there were 124,000 prophets, suggesting a Muslim should admit his ignorance of how God may guide the sincere as an expression of humility before the 16

Jerusha Tanner Lamptey, Never Wholly Other: A Muslima Theology of Religious Pluralism (Oxford: Oxford University Press, 2014), 243–253.

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judgment of God.17 In Legenheusen’s view, all the ­theological, ­mystical, and philosophical traditions of Islam hold the superiority of Islam. He contends that all the divine revelations should be called Islam in the general sense of submission to God, although after Muhammad, Islam that would lead to salvation is used in its specific sense only. Salvation requires correct faith and good works, but in the present age, general Islam implies specific Islam, the Islam of Muhammad. Legenheusen admits that his position “may seem to be exclusive, because of the claim of superiority of Islam among the religions of the world; however, it is in fact a degree of pluralism that admits that a plurality of religious traditions contain divine light and truth, that it is the responsibility of true believers to treat the followers of other traditions with acceptance and respect, and that the followers of other traditions may find the way to salvation through their own faiths by the grace of God.”18 3.4 The Descriptive: Explaining Other Religions in Their Own Terms Most Muslim scholars we have discussed thus far have used Islamic p ­ erspectives and terminologies such as iman, kufr, ahl al-kitab, and belief in God and good deeds in order to judge the fate of Muslims and non-Muslims in the hereafter. They position Islam at the center, and judge others according to their ­proximity and distance from that center. However, other Muslim scholars, particularly educators and academics in comparative religion and religious studies departments, pursue different paths with the goal of understanding different religions in their own terms, rather than evaluating and judging them in the Islamic terms. They seek to gain the purpose of creating interreligious understanding and hope to cultivate tolerance, harmony, and peace through the study of the religions in their own terms. A Muslim scholar and public official Mukti Ali (d. 2004), former minister of religious affairs of Indonesia, introduced a ­comparative religion in the Islamic universities in Indonesia and promoted the attitude of “agree in disagreement”. He argued that Muslim students of comparative religion had to remain a believer in Islam, but they should also learn about the similarities and differences between Islam and other religions so that he could be more prepared to exchange ideas and conduct a dialogue based on respect and tolerance, which is of vital importance

17 18

Muhammad Legenhausen, Islam and Religious Pluralism (London: Al-Hoda, 1999). Muhammad Legenhausen, “A Muslim’s Non-Reductive Religious Pluralism”, in Roger Boase, ed., Islam and Global Dialogue: Religious Pluralism and the Pursuit of Peace (­Burlington, VT: Ashgate, 2005), 70.

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for a harmonious society.19 Other Indonesian Muslim academics have published books on different religions. A Muslim academic Hermawati writes a book on Jewish religion and nation intended to be used by Muslim students of comparative religion.20 M. Ikhsan Tanggok introduces Taoism as adhered by the large part of Chinese people in China and overseas, including Indonesia.21 Siti Nadrah and Syaiful Azmi explore religions such as Zoroastrianism, Jainism, Baha’ism, and Sikhism, and suggest that the plurality of religions is a blessing that cannot be denied or rejected, and to know and learn about religions outside one own’s is both crucial and beneficial in creating a dynamic and harmonious relationship, peace, and co-operation in multi-religious societies.22 The above positions on whether non-Muslims could go to Heaven primarily concern the matter of belief. The matters of law and ethics have been considered more practical to Muslims. Muslim scholars have paid more attention to how Muslim authorities should deal with the affairs of non-Muslims or how Muslims should interact with non-Muslims in social life.23 It has been argued that how one views the others affects how one interacts with them and that theological views could reinforce approaches to law.24 It is not an easy task to find the correlation between belief and ethics in practice. However, at the ­theoretical level, many Muslim scholars and activists have developed the diverse legal interpretations of the ethics toward the polytheists and the people of the book and other religions. Many Muslim scholars claim that they are exclusive in matters of faith, but they are tolerant toward other religions and other religious communities in matters of social relations. For example, Indonesian Islamic organisations and scholars have issued fatwas prohibiting and discouraging Muslims to greet Christians a merry Christmas, to attend other religious celebrations, or to join an interfaith prayer to avoid crossing Muslim-non-Muslim theological boundaries, although other Muslims disagree with the fatwas for different reasons. Islamic organisations and scholars have 19

Herman L. Berck, “A Pillar of Social Harmony: The Study of Comparative Religion in ­ ontemporary Indonesia”, in Gerard Wiegers, ed., Modern Societies & The Science of ReliC gions: Studies in Honour of Lammert Leertouwer (Leiden: Brill, 2002), 336; Ali M ­ unhanif, “Islam and the Struggle for Religious Pluralism: A Political Reading of the Religious Thought of Mukti Ali”, Studia Islamika, 3, 1, 1996, 79–126. 20 Hermawati, Sejarah Agama & Bangsa Yahudi (Jakarta: RajaGrafindo Persada, 2005). 21 M. Ikhsan Tanggok, Mengenal Lebih Dekat Agama Tao (Ciputat: UIN Jakarta Press, 2006); M. Ikhsan Tanggok, Agama Buddha (Ciputat: Lembaga Penelitian UIN Jakarta, 2009). 22 Siti Nadroh and Syaiful Azmi, Agama-Agama Minor (Jakarta: Prenadamedia Group, 2015), vi–vii. 23 Arshad Ahmad Salroo, Islam and Religious Pluralism (New Delhi: Crescent Publishing Corporation, 2016), 98. 24 Muhammad Hassan Khalil, Islam and the Fate of Others, 24.

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addressed the issue of interfaith marriage (2:221), the consumption of the food prepared by non-Muslims (5:5), the best attitude towards polytheistic parents (31:15), the imitation of the lifestyles of the non-Muslims (as interpreted from the hadith), and other inter-religious relationships. All these remain contentious issues, touching the matter of belief, ritual, social relations and grey areas between them.25 In what follows, we briefly highlight some of the ways a ­number of Muslim scholars have addressed ethical engagement with religious others, regardless of their theological positions described above. 4

The Ethics of Treating and Living with the Non-Muslims

4.1 Fight Those Who Fight You! In the cases of tensions, hostilities, conflict, and war, due to different factors, many Muslims believe that they are instructed to fight those who fight them, interpreting and applying the following Qurʾanic verses: “Fight in the path of God those who fight you and do not transgress. No enmity except to those who acted unjustly” (2:190–193); “Muhammad and his companions were harsh toward the kuffar of Mecca who were hostile to them and they love each other among the believers.”(48:29); “The believers were kind to each other but are hard on the kafirun and fight in the path of God and do not fear those who mock them” (5:54), and “O Prophet strive hard against the unbelievers and the hypocrites and be firm against them, their abode is hell” (9:73; 66:9). The instructions to fight also come to the mushrikun, “When the forbidden months are past, then fight and slay the mushrikun wherever ye find them and seize them, beleaguer them, and lie in wait for them in every stratagem (of war) but if they repent, and establish prayers and practice charity then open the way for them, for God is Oft-forgiving, most merciful (9:5, 36). Other passages: “Strike a terror into the enemies of God (8:60)”, and “Not to take the kafirun as awliya, friends or guardians (4:144; 3:28), “Not to take Jews and Nashrani as friends” (5:51) are often cited to justify or promote hard positions towards the non-­believers. Those who promote tolerance interpret these verses as applicable only in specific hostile contexts, not to be generalised as the norms toward other religious communities in all circumstances. At the same time, they cite other passages which ask the believers not to transgress and act unjustly to whoever including those who they dislike. “But act good and just to the other 25

Muhamad Ali, “Between Faith and Social Relations: The Muhammadiyah and Nahdlatul Ulama’s Fatwas and Ideas on Non-Muslims and Interreligious Relations”, The Muslim World, 110, 4, 2020, 458–480.

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people who did not fight against you or remove you from your homes (60:7–9) and warn the Muslims that the dislike of others should not make the Muslims to act unjustly to them (5:8). 4.2 Your Religion is Yours In cases of general peace, Muslim scholars have promoted a ‘passive tolerance.’ They cite the Qurʾan chapter “al-kafirun”, the nonbelievers, which suggests “your religion is your religion and my religion is yours”. The classical exegetes such as Muqatil ibn Sulayman suggest that the whole chapter was abrogated by another passage instructing the killing of the polytheists (9:5, 36), because they rebelled against Muhammad, but other commentators disagreed. Although this passage does not mention Jews or Christians, some modern scholars have used the passage to show passive tolerance toward Jews, Christians, and all other religious communities. Contemporary Arab scholar Hassan ibn Musa Al-Shaffar argues that Islam does not hinder the existence of all religions by citing “your religion is yours and my religion is mine.” (109:6). Islam also leaves the mushrikun or polytheists with their beliefs and ritual. He cites the Prophet Muhammad who said to the mushrikun in Mecca after his victory: Go and you are free.26 This passive tolerance takes different forms, such as not mocking the objects of worship of other people who worship other than Allah because they could mock God as a retribution (6:108). 4.3 No Compulsion in Religion The Qurʾanic passage “there is no compulsion in religion (la ikraha fid-din, 2:256) has been frequently cited in the promotion and discussion of the modern notion of religious freedom. Some suggest that the passage was revealed in the context of the Meccan polytheists. Classical exegete Muqatil ibn Sulayman notes that the statement was a response to the conversion of the mushrikun to Islam if the non-Muslims agreed to pay the poll-tax (jizya) as the payment of them being protected by the Muslim leader because the Prophet Muhammad did not receive the poll-tax unless from the people of the book such as the Jews and the Magus. When the Arabs accepted Islam on their own wish or force, the Prophet accepted the tax from the non-peoples of the book. Modern exegete Muhammad Rashid Rida argues that the verse was not abrogated by other verses that instruct the believers to fight the hostile polytheists. In his view, the verses were revealed in connection to different individuals: one on a woman 26

Hasan ibn Musa Al-Shaffar, Al-Taʿaddudiyyah wa al-Huriyyah fi al-Islam: Bahth fi Huriyyah al-Muʾtaqad wa Taʿaddud al-Madhahib (Beirut: Markaz al-Hadharah Li Tanmiyat al-Fikr al-Islamy, 2010), 79.

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who wanted to make her child Jewish and once she converted to Islam, she wanted to convert her child to Islam, and another on a Muslim man who had two Christian children and asked the Prophet if he should force his children to be Muslim.27 To other contemporary Muslim scholars such as Abdullah Saeed and ­Hassan Saeed, the apostasy and death penalty associated with it were based on isolated hadiths and interpretations rather than the Qurʾan principle of “no compulsion in religion.” To the Saeeds, the apostasy laws are against the ­universal ethos of human rights and impractical in the worlds of nation-states where the division of dar al-harb (the Abode of War) and dar al-Islam (the Abode of Islam) and the categorisation of non-Muslims as ahl al-dhimmah (the “protected people”), are no longer relevant. In today’s world, the notion of fairness and justice means that the right to religious freedom should be applied not only to non-Muslims who wish to believe and disbelieve but also to Muslims who wish to believe and disbelieve or renounce Islam.28 In line with this mode of thought, Indonesian scholar Haji Agus Salim (d. 1954) argued that the Qurʾan (5:48; 6:108) and the belief in one god, the first of the five pillars of Indonesia’s State Philosophy (Pancasila), should be understood as an idea that guarantees everyone to embrace any religion, polytheistic or monotheistic, and even atheism.29 4.4 Competition in Goodness Muslim scholars also promote the idea that religious diversity is the Law of God and the primary task for Muslims and different peoples is to compete in goodness, citing the Qurʾan 5:48: “We have assigned a law and a path to each of you. If God had so willed, He would have made you one community, but He wanted to test through that which He has given to you, so compete in goodness: you will all return to God, and He will make clear to you the matters about which you differed”. Muqatil ibn Sulayman suggests that every community of religion has their own direction of prayer to face God and they are instructed to race in doing good deeds until the Day of Resurrection. He notes that God ­created for the Muslims and the people of the book, their traditions and laws. The people of Torah had qishash (retaliation) for intentional murder without 27 28 29

Abduh and Rida, Tafsir Al-Manar, vol. 1, 117, vol. 3, 36. www.altafsir.com Also see Taha Jabir al-Alwani, Islam Tak Pernah Memaksa, trans. Yodi Indrayadi (Jakarta: Suara Agung, 2010), 158–159. Abdullah Saeed and Hassan Saeed, Freedom of Religion, Apostasy and Islam (Aldershot and Burlington: Ashgate, 2004), 167–173. Haji Agus Salim, “Kementerian Agama dalam Republik Indonesia”, Agenda Kementerian Agama (Jakarta: Departemen Agama, 1951/1952), 123–28.

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fine and had stoning as a punishment for the married and unmarried acts of adultery. The people of Gospel had forgiveness, had neither qishash nor fine, and had flogging instead of stoning for adultery, whereas the people of the law of Muhammad combined the law of retaliation (qishash), fine, and forgiveness, and flogging for unmarried adultery and stoning for married adultery. On these legal differences, Muqatil ibn Sulayman says, “God will judge their differences in the hereafter.”30 4.5 The Call to the Path and Pursuit of Dialogue Muslim scholars have promoted in the context of religious pluralism and freedom the call to the path of God or daʿwa with wisdom, good preaching, and the best dialogue (16:125; 29:46). They have cited other passages to emphasise the importance of enjoining righteousness and forbidding evil (3:110, 104). Also important for Muslim scholars and leaders is to engage non-Muslims. To the people of the book, Jews and Christians in particular, and other believers in general, Muslims are called to invite them to reach a common word or ‘kalima sawa’, translated as “common word”: the belief in God without associates and in case the other people refuse to reach the agreement they could just let the disagreement to happen and proclaim they are among the Muslims. (3:64). Muqatil ibn Sulayman says that it means the word of j­ ustice and sincerity (ikhlash) toward the divine unity, and not taking gods such as Christians taking Jesus as their god besides the God, and if they turned away from the invitation, proclaim that “we are Muslims: sincere with the divine unity.”31 The common word has become a global initiative of interfaith dialogue in the various different forms of joint statements, gatherings, academic events, workshops, seminars, and grassroot community activities.32 In the pursuit of dialogue, the concept of kalima sawa has received g­ enerally positive responses. Indonesian scholars such as Nurcholish Masjid (d. 2005) elaborates the concept of kalima sawa in light of the Constitution of Medina by Prophet Muhammad and the Pact of Umar ibn Khattab in Jerusalem, and in light of the Indonesian state philosophy of Pancasila, consisting of belief in one God as its first pillar, while citing Qurʾanic commentators such as Muhammad Asad and Abdullah Yusuf Ali. In the view of Madjid, the common word means a common platform in an attempt at reconstructing an Islamic universalism based on the oneness of God and oneness of humankind and inviting 30 31 32

Muqatil ibn Sulayman. Q. 5:48. www.altafsir.com. Muqatil ibn Sulayman, Q. 3:64. www.altafsir.com. See Yazid Said and Lejla Demiri, eds., The Future of Interfaith Dialogue: Muslim-Christian Encounters through A Common Word (Cambridge: Cambridge University Press, 2018).

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the peoples of the book and all the believing peoples to come to terms with the generic meaning of Islam as the sincere surrender to God – the ­substance of all true religions – beyond the historical and sociological particularities. To Madjid, the invited peoples were not only Jews and Christians, but also ­Zoroastrians, Hindus, Buddhist, Confucians, and others. All should be invited to demonstrate openness, mutual respect, tolerance, and inclusivism.33 5 Conclusion In examining the modern concepts of religious pluralism and freedom in Islam, it is useful for us to consider Muslims’ interpretations of Qurʾanic passages related to Islam and Muslims alongside religions and communities, and other verses which indicate the ethical doctrines. Muslim scholars have mainly used the Qurʾanic terms regarding belief, disbelief, Muslims, and the people of the book, in their constructions of Islam and non-Muslim identity, in their views of the fate of the non-Muslims and in their attitudes toward the non-Muslims. The construction of Muslim selves and the other has taken place since the very beginning of Islam as the submission to God revealed in its final and perfect form to Muhammad, which contributes to the mainstream belief in Islam as the only true path to attaining salvation. The second position allows possibilities for other religious adherents who are unreached by Muhammad’s true presentation of the message. Muslim scholars who believe Islam is the true but not the only path to salvation emphasise the general meaning of Islam as the submission to God universally present in the innate nature of righteousness in humankind through correct faith and good action. The third position is held by some Muslim scholars who emphasise the inner spirituality and the transcendental unity of religions. Among the scholars who hold the view that many paths lead to salvation, they emphasise God’s mercy and compassion rather than His punishment. They let God decide on who gets salvation and grace in the hereafter. The fourth position avoids judging other religions and focus on describing the religions in their own terms, with some goals of creating mutual learning and tolerance. The diversity of view and positions among Muslim scholars, mainstream and non-mainstream, suggests that the Qurʾan by itself does not attempt to establish a single position on the salvation of the other. Given the many verses, often accompanied with the hadith and traditions considered authoritative, 33

Nurcholish Madjid, Islam, Doktrin & Peradaban, 6th edition (Jakarta: Paramadina dan Dian Rakyat, 2005), 173–96.

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by different scholars and communities, the ethics of dealing with the others is also diverse and dynamic. Normatively, scholars have addressed the question of interacting with non-Muslims by interpreting the Qurʾanic passages regarding the fighting against the hostile non-Muslims, your religion is yours, no compulsion in religion, competition in goodness, and the pursuit of dialogue. This variety of norms suggests the multi-dimensionality of Muslim views and attitudes toward other religions and communities. Future research about pluralism and freedom should take text and context and norms and practice into consideration. Bibliography Abduh, Muhammad, and Muhammad Rashid Rida, Tafsir Al-Manar https://www .altafsir.com/. Ali, Muhamad, “Between Faith and Social Relations: The Muhammadiyah and ­Nahdlatul Ulama’s Fatwas and Ideas on Non-Muslims and Interreligious Relations”, The Muslim World, 110, 4, 2020, 458–480. al-Alwani, Taha Jabir, Islam Tak Pernah Memaksa, trans. Yodi Indrayadi, Jakarta; Suara Agung, 2010. al-Banna, Gamal, Al-Taʿauddudiyyah fi al-Mujtamaʾ al-Islamy, Cairo: Dar al-Fikral-Isl ami, n.d. Bar-Asher, Meir N., Jews and the Qurʾan, Princeton: Princeton University Press, 2021. Berck, Herman L., “A Pillar of Social Harmony: The Study of Comparative Religion in Contemporary Indonesia”, in Gerard Wiegers, ed., Modern Societies & The Science of Religions: Studies in Honour of Lammert Leertouwer, Leiden: Brill, 2002. Cawidu, Harifuddin, Konsep Kufr dalam Al-Qurʾan: Suatu Kajian Teologis dengan Pendekatan Tafsir Tematik. Jakarta: Bulan Bintang, 1991. Coward, Harold, Pluralism in the World Religions: A Short Introduction. Oxford: ­Oneworld, 2000. Eck, Diana, “Is Our God Listening? Exclusivism, Inclusivism, and Pluralism”, in Roger Boase, ed., Islam and Global Dialogue: Religious Pluralism and the Pursuit of Peace (Burlington, VT: Ashgate, 2005), 21–49. Fakhry, Madjid, “An Islamic Perspective”, in Chad Meister, ed., The Oxford Handbook of Religious Diversity. Oxford: Oxford University Press, 2011, 393–402. Hamka (Haji Abdulmalik Abdulkarim Amrullah), Tafsir Al-Azhar, vol. 1, Singapore: ­Pustaka National, 1982. Hermawati, Sejarah Agama & Bangsa Yahudi, Jakarta: RajaGrafindo Persada, 2005. Ibn ‘Arabi, Muhyiddin, Tafsir Al-Qurʾan www.altafsir.com.

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Izutsu, Toshihiko, Ethico-Religious Concepts in the Qurʾan, Montreal & Kingston: McGill-Queen’s University Press, 2002. Khalil, Muhammad Hasan, Islam and the Fate of Others: The Salvation Question. Oxford: Oxford University Press, 2012. Lamptey, Jerusha Tanner, Never Wholly Other: A Muslima Theology of Religious Pluralism, Oxford: Oxford University Press, 2014. Legenhausen, Muhammad Islam and Religious Pluralism, London: Al-Hoda, 1999. Legenhausen, Muhammad “A Muslim’s Non-Reductive Religious Pluralism”, in Roger Boase, ed., Islam and Global Dialogue: Religious Pluralism and the Pursuit of Peace, Burlington, VT: Ashgate, 2005, 51–73. Lyall, Charles J., “the words ‘hanif’ and ‘Muslim’”, The Journal of the Royal Asiatic Society of Great Britain and Ireland (Oct 1903), 771–784. Madjid, Nurcholish, Islam, Doktrin & Peradaban, 6th edition, Jakarta: Paramadina dan Dian Rakyat, 2005. Munhanif, Ali, “Islam and the Struggle for Religious Pluralism: A Political Reading of the Religious Thought of Mukti Ali”, Studia Islamika, 3, 1, 1996, 79–126. Nadroh, Siti, and Syaiful Azmi, Agama-Agama Minor, Jakarta: Prenadamedia Group, 2015. Noer, Kautsar Azhari, “Mengklasifikasi Arti Pluralisme Agama”, unpublished paper presented at the Discussion, Faculty of Ushuluddin, State Islamic University, Syarif Hidayatullah, Jakarta, March 17, 2021. Philpott, Daniel, Religious Freedom in Islam: The Fate of A Universal Human Right in the Muslim World Today. Oxford: Oxford University Press, 2019. Race, Alan, Christians and Religious Pluralism: Patterns in the Christian Theology of R ­ eligions. London: SCM Press Ltd, 1983. Rahman, Fazlur, “Islam’s Attitude toward Judaism”, The Muslim World, 7, 23, 1, 1982, 1–13. Ridgeon, Lloyd, ed., Islam and Religious Diversity, 4 vols. London and New York: ­Routledge, 2012. Saeed, Abdullah, and Hassan Saeed, Freedom of Religion, Apostasy and Islam, A ­ ldershot and Burlington: Ashgate, 2004. Said, Yazid, and Lejla Demiri, eds., The Future of Interfaith Dialogue: Muslim-Christian Encounters through A Common Word, Cambridge: Cambridge University Press, 2018. Salim, Haji Agus, “Kementerian Agama dalam Republik Indonesia”, Agenda Kementerian Agama, Jakarta; Departemen Agama, 1951/1952, 123–28. Salroo, Arshad Ahmad, Islam and Religious Pluralism, New Delhi: Crescent Publishing Corporation, 2016. Al-Shaffar, Hasan ibn Musa, Al-Taʿaddudiyyah wa al-Huriyyah fi al-Islam: Bahth fi ­Huriyyah al-Muʾtaqad wa Taʿaddud al-Madhahib, Beirut: Markaz al-Hadharah Li Tanmiyat al-Fikr al-Islamy, 2010.

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Shihab, Muhammad Quraish, Tafsir Al-Mishbah: Pesan, Kesan dan Keserasian Al-Qurʾan, 1, 5th edition, Jakarta; Lentera hati, 2005. Sulayman, Muqatil ibn, Tafsir Muqatil ibn Sulayman, www.altafsir.com. Tanggok, M. Ikhsan, Mengenal Lebih Dekat Agama Tao, Ciputat: UIN Jakarta Press, 2006. Tanggok, M. Ikhsan, Agama Buddha, Ciputat: Lembaga Penelitian UIN Jakarta, 2009. Waldman, Marilyn Robinson, “The Development of the Concept of Kufr in the Qurʾan”, Journal of the American Oriental Society, vol. 88, No. 3 (July–Sep. 1968), 442–455. Zakariyya, Abu Bakr, Muhammad, Al-Shirk fi al-Qadim wa al-Hadith, 2 vols, Riyadh: Maktabah al-Rushd, 2001.

Chapter 4

Religious Pluralism, Religious Freedom, and Christianity S. Mark Heim 1 Introduction Attitudes toward religious pluralism and religious freedom across the global Christian community reflect the vast variety in the churches and their social contexts. In order to outline some broad themes and focus their relevance for the present, I will proceed in a roughly chronological manner. First, I will revisit the early centuries of Christianity to note some formative convictions and experiences. Next, I will highlight two developments from the historical period between those early centuries and the modern era: institutional and theoretical grounding for the distinction of church and state in medieval Christianity, and the global Christian history of religious diversity (in distinction from that of Europe). Third, I will consider the modern development of the theory and practice of religious liberty in the Christian west. Finally, I will discuss the contemporary theological approach to religious diversity and its significance for the question of religious liberty. 2

Early Period

Christianity originated in a realm of religious diversity, the Roman Mediterranean world. The role of religion within any tribal community, kingdom, or empire turned upon the conviction that religions were coterminous with membership in a given people or ethnos, or were individual “client” relations with a divinity for the realization of certain benefits (as with healing cults or some “mystery” religions). In the first instance, religious observances were obligations of birth into an ethnic community or of membership in a sovereign polity, undertaken in the interests of that community. In the second, religious acts were undertaken in the interests of individual outcomes for health, love, or higher states of existence, something akin to magic. Most often peoplehood and polity coincided or at least overlapped with religion. Egyptians or Gauls who were dispersed around the Roman empire © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_005

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typically followed the rites of their resident city and those related to imperial rule, as well as the dictates of their familial religious community. Back in their homeland, the religion and the polity coincided. This general pattern held also for Jews in their home Judean state, making their religion intelligible to others, despite the peculiarity of their resistance to participation in the native cults of the lands where they lived in diaspora. They too had a homeland where polity and religion had always been one, and where they belonged by birth and culture. Individuals and peoples were often persecuted and the practice of their religions repressed, but it is difficult to distinguish the extent to which “religion” was a distinctive object of this repression, as opposed to a convenient marker of the opposing group. Members within a people group who refused to observe its religious rites could be punished for disloyalty, for undermining the health of the community: a threat from inside. Those belonging to a competing group or polity could be attacked along with their religion and its gods, as hostile powers threatening one’s home community from without. Christianity’s inheritance of Jewish monotheism, soon de-coupled from membership in the Jewish people, brought with it a new framework for the question of religious freedom. Christianity rapidly became a religion ­without the corresponding people, polity, or language that would be typical of its environment. Classical accommodations for religious diversity assumed this correlation, and the church posed a challenge to that model by straining its categories. The question of religious freedom shifted when formulated in Christian terms. A universal deity, to whom all were accountable, was one whose worship or commandments might be obligatory even for those who did not recognize such a God. On the other hand, such a universal deity might also be one most likely to be known in some way among all peoples, and so to be reflected already in their religions. Both inside and outside Judaism, Christianity was perceived as a sect of that particular tradition. The earliest Jesus-followers thought of themselves in this way. Initially, their recognition in society came through identification with Judaism, and they were accepted (or not) as Jews were. Christian faith was seen as a threat from within by many Jews, and a threat from outside among gentile groups from whom converts were made. It was not unique in being a religion untethered to a specific ethnic group or nation (“client cults” or mystery religions could fit this description).1 But the church was unusual in the

1 Rodney Stark and William Sims Bainbridge, The Future of Religion: Secularization, Revival, and Cult Formation (Berkeley: University of California Press, 1985).

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exclusivity with which it embraced this identity and the intensity of the community formed around it. The Christian struggle for toleration and acceptance within the Roman empire and its constituent political/religious worlds required advocacy of a novel form of religious liberty, and a redefinition of “religion.” It insisted on decoupling Christian faith from the assumption of a seamless political/ethnic/ religious unity, as it was just this assumption that led others to see Christianity as a threat. The author of the second century Letter to Diognetus defended the faith against accusations that Christians are a kind of “shadow empire” set within all the states and peoples that harbor them, owing a higher allegiance that sets them at odds with their neighbors.2 The author argued that precisely because Christians are citizens of a heavenly city, for whom every homeland is a foreign land, they are free to support the common life of any earthly city.3 The God of the Christians, who is above all earthly communities and their religions (in principle to be obeyed in preference to any of them), is yet one whose worship threatens no government that allows it and whose devotees fervently seek the good of pagan neighbors. Religious liberty as it figures in this Christian perspective has three dimensions. One is the realm of conscience and truth. Monotheism presumed a single ultimate referent and a universal truth in religion. This posed a fundamental alternative for each person: whether to give inner recognition and assent to this truth. The magnitude and importance of the religious question so defined transcends political and ethnic identity. It hinges on personal conviction and commitment. In this respect Christianity fosters individualism and a focus on faith manifest in a private mental/spiritual space. The early Christian apologist Tertullian wrote directly to a Roman official who had forbidden Christian worship, expressing this appeal to a universal right of conscience and to the voluntary nature of religion itself. “It is only just and a privilege inherent in human nature that every person should be able to worship according to his own convictions…It is not part of religion to coerce religious practice, for it is by choice not coercion that we should be led to religion.”4 Subjective or individual exercise of conscience is essential for liberty as early Christians understood it, but it implies a freedom to practice and to transmit that truth once it is subjectively adopted. This second dimension we may call 2 Kirsopp Lake et al., “Epistle to Diognetus” in The Apostolic Fathers; the Loeb Classical Library, ed. Kirsopp Lake (London, New York: Heinemann; Macmillan, 1912). 3 Ibid. “Epistle to Diognetus” Chapter Five. 4 Quoted in Robert Louis Wilken, Liberty in the Things of God: The Christian Origins of Religious Freedom (New Haven, CT: Yale University Press, 2019). 13.

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the ecclesial one. Christian faith could not remain only an inner conviction. In his Confessions, Augustine tells the story of Victorinus, a famous public figure, who had become a convinced Christian but held back from any public acknowledgement of this or any participation in the church, for fear of the results.5 The climax of the story comes when he overcomes these fears and makes a public confession of his faith. The story teaches that private mental conviction is inadequate, apart from life in the church. Christian martyrs died because they refused to participate in religious rites other than their own, or because they would not hide their participation in the social life of Christian community. Spiritual space for conscience is necessary. But social space for a tangible community/institution is required as well. Such space might grow somewhat incognito (as the church grew initially within existing Jewish structures), but it eventually required recognition in its own right. This points us to a third dimension or religious liberty, an explicitly political one. The ecclesial community requires legal and social space to perform its functions of worship, education, and service. This legal space is the subject of the Roman edicts by which Christianity first became tolerated, then preferentially supported by the state, and finally officially established, acting to repress the religious liberty of other groups. In 311 the Roman emperor in the west, Galerius, issued a proclamation ­officially ending the Diocletian persecution of Christians and granting them toleration. In 313 Galerius’s replacement, Constantine, and the emperor in the east, Licinius, jointly issued a new decree, the Edict of Milan, notable for its further steps. It applied to any religion, making it legal for “all men to ­follow whatever religion each one wishes.”6 Such a level-playing-field religious ­freedom appears here to be “a matter of principle, not sufferance of something offensive.”7 Some time later (380), Theodosius issued the Edict of Thessalonica, which made Catholic (non-Arian) Christianity the official religion of the empire. These well-known historical markers stand in a turbulent century where life on the ground followed anything but a linear path of development. P ­ opular and political ascendency was contested among Nicene and Arian forms of ­Christianity as well as a brief imperial reinstitution of paganism.8 But the markers summarize a trajectory of transformation over this relatively short 5 Confessions Book 8 section 2. 159–160 Pine-Coffin. 6 Quoted in Wilken, Liberty in the Things of God: The Christian Origins of Religious Freedom. 23. 7 Ibid. 8 Between 313 and 380, imperial power was at different times exercised on behalf of Nicene Christianity, Arian Christianity, and revived classical religions.

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time. From systemic persecution (the Diocletian persecution at the dawn of the century), to toleration as a grudging acceptance (in 311) to a more systematic form of religious freedom explicitly extended to many religious paths on an equal basis (the 313 Edict of Milan), to the specification of Christianity as the favored and finally (in 380), the official religion of the empire, Christians traversed in a few generations a dramatic range of locations in their social/­ political status. This journey led to the established standing that characterized subsequent ­Christian history in the Roman world down to the reformation. Just as the Roman prohibition on Christianity was violently enforced only sporadically over the first three centuries, so too the theoretical establishment of Christianity after Constantine functioned as a practical co-existence alongside classical religions and Judaism for a long period.9 For instance, down into the fifth century Christians composed no more than half (and often much less) of those appointed by Christian emperors to the highest offices (consuls and prefects).10 Religious tests and religious violence were more often instigated by Christians against other Christians viewed as heretical or schismatic (as in the conflict between Nicene and Arian churches) than against classical ritual. Many “pagan” religious practices continued in their own right as well as in folk forms appropriated among Christians. Some early Christian writers exaggerated the extent to which Christian ­rulers manifested their fidelity by stamping out religious alternatives. Their histories were in the nature of polemical ideals more than empirical ­description.11 Those same accounts were often taken at face value by later secular historians (who reversed the evaluative assumptions involved). Both obscured the full character of the unsettled transition period, including the diverse forms of official policy on religious diversity and the experience of Christian rulers grappling with the realities of their pluralistic subjects. Only several centuries after the supposed triumph of the church did Christendom approach the point of social exclusivity later taken as normal. This Christian historical experience differs significantly from the Islamic one. The extraordinary early expansion of Islam meant that Muslims almost immediately came to reign over large populations that belonged to other 9

In regard to Judaism, see Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity, Divinations (Philadelphia, Pa.: University of Pennsylvania Press, 2004). On paganism, see Chapter Seven “The Last Day of Paganism,” in Rodney Stark, Cities of God: The Real Story of How Christianity Became an Urban Movement and Conquered Rome, 1st ed. (San Francisco: HarperSanFrancisco, 2006). 10 See Cities of God: The Real Story of How Christianity Became an Urban Movement and C ­ onquered Rome. 191. 11 Ibid. 193–194.

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religious traditions. In many areas they have continuously administered religiously mixed societies ever since. Sources and debates from the earliest strata of Muslim history deal directly with these questions, while we have seen that the religious liberty issue went through dramatically different phases in early Christianity, based on a changing social location. Later in this period Christians did develop what had been lacking at the beginning of their tradition: an explicit theological rationale for the s­ uppression of religious diversity. Though early Christian writers might c­ ondemn J­ udaism and classical religions with virulent language, and might anticipate their replacement in apocalyptic judgement, they did not envisage their destruction by the state. Augustine was emblematic in this respect. Living in the period of transition to Christian establishment, toward the end of his life he reversed his prior insistence on choice in religion.12 He justified state coercion against other Christians who were heretical in his view, referring to a parable of Jesus where the giver of a banquet sent out servants to compel people to come in as guests (Luke 14:15–24).13 Some variation of this idea would long remain a staple of Christian restriction of religious liberty: suppression of false religion was not only a defensive measure justified to protect the vulnerable from erroneous teachings, but an act of compassion in coercing people away from spiritual self-destruction toward the possibility of redemption. Contemporary Christian understanding of religious pluralism can revisit this diversity in early Christian experience, and may seek continuity now with elements from that period that were not dominant subsequently, p ­ articularly the importance of conscience and the voluntary aspect of all religion. Two ­elements of that early tradition that remain central are the separation of ­Christian faith from identification with any single ethnic or political identity, and the formative development of Christian tradition in the status of a vulnerable religious minority. 3

Pre-Modern Developments

Between the emergence of a Christian Roman empire (whose eastern form would survive down to the conquest of Constantinople in 1453) and the definitive break up of a unified Western Christendom at the Reformation, I would point out two developments as particularly telling for the story of religious 12 13

See Chapter 19 “Ubi Ecclesia?” in Peter Brown, Augustine of Hippo; a Biography (Berkeley: University of California Press, 1967). Augustine, “Letter 93 to Vincentius,” https://www.newadvent.org/fathers/1102093.htm.

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liberty. The first is internal to the Western context. Over these centuries, theology elaborated a vision of two regimes or “two swords” in society, amplifying the early Christian image of “dual citizenship” in an earthly city and a heavenly one.14 Two realms were ordained by God and ultimately accountable to God: a civil, “secular” political rule through the state and a spiritual rule through the church. This vision articulated a coordination in divine direction of society, a division of institutional power between princes and prelates. It was often more aspirational than descriptive. A harmonization of the distinct realms might be reflected in their division of labor in persecuting unfavored Christian groups. The civil ruler might protect the spiritual hygiene of their society by physically punishing with the political sword those heretics identified by church authorities exercising their spiritual authority. Standard histories of western Christianity place great emphasis on the struggles between the “two swords” for precedence in the Christian world, such as the investiture controversy which debated whether the pope or a king could choose local bishops and invest them with their office.15 In 1077, the putative Roman emperor Henry IV, traveled to Canossa to humble himself before Pope Gregory, seeking to escape excommunication from the church and its threat to his legitimacy as ruler. This famous example of the spiritual sword eclipsing the secular one was presented by Gregory as the vindication of an ancient theory. To many historians, it represents not a last gasp of reaction but a revolutionary departure.16 That ultimate religious and political power must both inhere in one imperial figure was an assumption shared the world around. Even in the eastern, Byzantine empire, the Christian emperor still retained this aura. From the eleventh century on in the west, a radically different possibility had become institutional reality. From the perspective of our topic, the first important outcome of these struggles was that the church preserved a sphere of institutional independence over against the state, even against the Christian ruler of a Christian state. This independence rested on a claim to authority affecting the spiritual or eternal well being of both rulers and subjects in that state. The successful struggle of the Roman church to preserve an authority independent of the state created a sphere of liberty that could be reappropriated for religious diversity when 14 15 16

On the two swords, see I.S. Robinson, “Church and Papacy” in The Cambridge History of Medieval Political Thought C. 350–C. 1450, ed. J. H. Burns (Cambridge Cambridgeshire; New York: Cambridge University Press, 1988). 300–305. See Chapter Six, “The Investiture Controversy,” in William Chester Jordan, Europe in the High Middle Ages, The Penguin History of Europe (New York: Viking, 2003). See Tom Holland, The Forge of Christendom: The End of Days and the Epic Rise of the West, 1st U.S. ed. (New York: Doubleday, 2008).

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the church itself had fractured. That the church had rights independent from the state was a conviction that endured even when it became unclear which church, if any, was the proper agent of those rights. The second important feature of this pre-reformation time period is external to the western church, and out of view in Eurocentric accounts of Christianity. It relates to the dramatic spread of the church south into Africa and across Asia to India and China. The “church of the east” in Persian lands would live almost all of its history as a minority population alongside those of other religions (Zoroastrian and later Buddhist and Muslim), as would the churches that it founded across central Asia and in Tang China (where Buddhism, Taoism, and Confucianism predominated). In India, a Christian church founded prior to the time of Constantine lived down to the present as a minority community within a vast Hindu culture. Kingdoms in Armenia and Ethiopia adopted Christianity as the religion of their rulers and people, but held to that identity over centuries when they were surrounded by states and people of other religions. To this we could add the churches of Egypt and northern Africa which fell most quickly under Muslim rule, and have lived ever since in the dhimmi status of non-Muslim theists in their societies. The experience of these churches has rarely been considered in reflecting on Christian views of religious freedom. This may be understandable, given that much of the church of the east (in China, and central Asia) disappeared from history and is not present to give its own testimony, and given that the churches in India, Ethiopia, and Muslim lands are much less well-known in the west. In such settings, churches had to address religious liberty from the perspective of a minority, maintaining more continuity with the arguments and perspectives of Christians in early centuries. The particular settings differed dramatically, of course, ranging from Muslim lands, where Christians might tune their approach to explicit monotheistic and biblical commonalities, to Hindu or Buddhist or Confucian or Taoist environments with their own understandings of religion and society. But rich resources for contemporary thinking may be found in this history, in the churches currently living in minority conditions, and even in those places (like sub-Saharan Africa) where in recent decades Christians have gained a new majority status. 4

The Modern Growth of Religious Liberty

One major factor in the emergence of religious liberty in the west was ­undeniably a pragmatic one. With the Reformation in the sixteenth century, ecclesial diversity within the same Christian society became an established

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fact. The result was a period of unbridled violent conflict, the “wars of religion” in Europe, primarily pitting Protestants and Catholics against each other, but devolving into subsidiary divisions among Calvinists, Lutherans, and Anglicans as well. The instinct that an undivided Christian church should partner with an unquestioned political sovereignty everywhere in Europe gave way, in exhaustion, to a grudging compromise. That compromise provided for a patchwork of smaller scale versions of that same unity: a ruler’s choice of Christian denomination determined what was prescribed for their subjects, but different rulers held to different confessions. So Catholic, Lutheran, Reformed, or Anglican sovereigns officially maintained those faiths in their realms, with the non-official groups (Christian and Jewish) subject to subordinate status, sometimes pressed to convert or migrate to a more hospitable state. Over centuries, at different paces in different countries, the legal and social advantages that separated an established church from the subordinate traditions diminished. Practical expediency on its own was never sufficient to achieve more than a temporary resolution of religious diversity.17 The regimes of such “fox hole” truces between Catholics and Protestants in sixteenth century Germany or seventeenth century France were soon reversed. Long term peaceful coexistence among the hostile religious confessions of Reformation Europe could come only with “a genuine belief in and commitment to toleration as something inherently good and valuable.”18 The rationale for such commitment was developed by a variety of thinkers, from Voltaire, with his biting critique of the inhumanity and hypocrisy of religious persecution, to John Locke, with his philosophical defense of toleration. This negative pragmatic impetus toward toleration was matched in some quarters by a negative intellectual argument advanced against religion itself. The seventeenth and eighteenth centuries brought skeptical and r­ationalist critiques of clericalism, the institutional church, and Christianity or religion in total. If continued violent religious conflict was practically untenable, these currents of thought suggested that the religious conclusions driving that ­conflict were neither assured enough or important enough to fight over. The rise of religious liberalism manifested itself also in forms that emphasized positive generic content in religions, bridging competitive Christian traditions and even different theistic religions: deism (focused on a rational, distant architect God), which abstracted from many of the doctrinal disputes among theists,

17 18

See Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton, N.J.: Princeton University Press, 2003). 12–13. Ibid. 12.

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and perennialism, which held to a basic common moral and mystical content in all religion. Another stream of positive support for religious liberty, at least as important as that provided by skeptics and philosophers, came from “sectarian” Christianity, particularly from the communities who had not been party to the pragmatic compromises of the post-Reformation era: Baptists and anabaptists (such as Mennonites), Quakers, and evangelical or pietist offshoots from the older churches (Moravians, Methodists). Insofar as these groups had ancestors in the Reformation era, those ancestors had been the universal losers in its political accommodations. All varieties of established Christianity in Europe agreed that voluntarist, sectarian groups merited persecution. Whichever organized party to the wars of religion prevailed in any location, they would agree in suppressing these sects. They could survive only in the cracks of a system devoted to détente between the larger players. What distinguished these groups was that they did not finally desire the establishment of their form of Christianity. For them, toleration was not a fallback position stemming from a thwarted search for political dominance. They did not aspire to control the state to enforce their religious convictions, but sought a separation from the state, and a voluntary, minority status within the wider Christian community. If the secular case for tolerance argued that religious disputes were not important enough or the answers clear enough to fight over, the sectarian/evangelical approach argued that inheritance or state sponsorship could not produce authentic Christian life. Religious freedom was the necessary precondition for true (i.e. voluntary personal) belief and for the valid constitution of the church (made up only of those belonging by free choice). Religious freedom now begins to be articulated as a right, inhering in ­individuals and in voluntary communities of faith. That modern articulation is a novel development. But it is one rooted in ideas of conscience and faith expressed by the early Christians and operating in the sphere of religious independence that the medieval church had wrested from political powers. In the European context these new views of religious liberty developed for the most part within the framework of a Christian state church. Other religious groups slowly gained greater freedom, alongside the legal and ceremonial precedence given a particular form of Christianity. Equality for varied religions could grow by extending government support to them similar to that already granted the established church. So where religious instruction might be a compulsory feature of public education, instruction in another chosen religion might be substituted for instruction in the state church. In France, which removed its religious establishment at the French Revolution in favor of a strict

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“laïcité” or secularism in government, nevertheless the state funded religious schools alongside others as part of its public education system. In the United States, the logic of religious freedom moved away from f­ ormal establishment entirely. In the early years of the country, the evangelical/­ sectarian rationale for religious liberty made common cause with an enlightenment deism that came to similar political conclusions for different reasons.19 The voluntarist, free churches were certain the path to salvation could be found and maintained only where error was also allowed. Enlightenment liberals like Thomas Jefferson believed that the particularities of religious conflict (among Christian denominations or among religions more generally) were driven by irrational passions that could destroy a common polity. In this restricted respect, evangelical certainty and rational agnosticism pointed to the same result. Evangelicals viewed the truth of religion as too significant to allow government to interfere in its determination. Liberals of Jefferson’s stripe viewed religion as too unsettled and uncertain to be allowed sway over government. The legal regime of religious freedom in the U.S. (manifest in the first amendment to the U.S. constitution, providing that Congress shall make “no law respecting an establishment of religion, or prohibiting the free exercise thereof”) reflects its hybrid birth. The evangelical/sectarian and liberal/­ philosophical influences behind it represent a new take on the “two swords” of medieval Christianity, emphasizing their independence more than their convergence. Some advocate priority for the “no establishment” clause in the amendment, as requiring a strictly secular public sphere, pointing to a private letter in which Jefferson endorsed a “wall of separation” between church and state.20 This view can point to the constitution’s prohibition of any ‘religious test” for office holders, as an exemplification of this separation. Others place the emphasis on the “free exercise” clause of the amendment, a freedom for religion, including its recognition and accommodation in government. They point out that, when adopted, the amendment prohibited an establishment of religion only on the level of national government. It left in place those then existing in individual states, which were eliminated one by one. Then and now, there has been uninterrupted government support for congressional and military chaplains, and ceremonial reference to God in acts of government, reflecting a kind of “civil religion” that has widened its scope with the country’s expanding religious diversity. Observers, old and new, have remarked that the 19 20

See Edwin S. Gaustad, Church and State in America, 2nd ed., Religion in American Life (New York: Oxford University Press, 2003). Faith of Our Fathers: Religion and the New Nation, 1st ed. (San Francisco: Harper & Row, 1987). 46.

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peculiar American formula, however conceptually imprecise, proved to be one comparatively conducive to the flourishing of religious adherence generally.21 The common elements in these formulations of religious liberty in the Christian west shaped the substance of the article on religious freedom in the United Nations Universal Declaration of Human Rights in 1948. That ­article reads: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and ­observance.22 Although there were grounds in many religious and cultural sources to support this formulation, scholars from various traditions have clearly discerned a particular Christian influence in its framework. Arvind Sharma, for instance, points out that the definition of “religion” assumed here reflects the western history we have been reviewing, and the freedom defended is one that ­privileges conversionist religions over those that see no obstacle to multiple religious belonging or that value community and stability at least as much as individual initiative.23 5

Colonialism and Mission

The institutional and theological separation of state from church in the Middle Ages, followed by the break up of the western church at the Reformation, transformed the framework for Christian understanding of religious liberty. The American example just discussed reminds us that our contemporary context cannot be understood apart from developments of a more global nature, two in particular: colonialism and the modern missionary movement. European expansion brought encounter between peoples and religions that were previously entirely (in the Americas) or significantly (in Africa and Asia) unknown 21

22 23

See Stark and Bainbridge, The Future of Religion: Secularization, Revival, and Cult ­Formation; Alexis de Tocqueville, Harvey Claflin Mansfield, and Delba Winthrop, ­Democracy in America / Translated, Edited, and with an Introduction by Harvey C. M ­ ansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000). United Nations, “Universal Declaration of Human Rights” https://www.un.org/en/about -us/universal-declaration-of-human-rights. See Arvind Sharma, Hinduism and Human Rights: A Conceptual Approach, Law in India Series (New Delhi: Oxford University Press, 2004).

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to each other. Christians often condemned these religions as demonic and ­violently suppressed them, hand in glove with colonial power. They almost inevitably assimilated them to western preconceptions of what religions are.24 But colonialism could itself also produce a strong, pragmatic version of religious liberty. The East India Company, for instance, excluded Christian missionaries from its domains, lest religious tensions undermine its political and economic interests. European colonial governments became administrators and patrons of Hindu, Buddhist, Muslim, and other local religious communities. Such colonial administrators were frequently the defenders of a pluralistic religious status quo, or authors of Machiavellian schemes to favor one non-Christian religious communal group over another. The modern Christian missionary movement, reaching into the world by means of the paths laid by European trade and conquest, often found itself at odds with colonial authorities precisely over religious liberty. In every society, the missionaries sought freedom for their own evangelism and for conversion, while colonial powers tended to prioritize continuity and calm in indigenous religious communities in order to prevent them from becoming loci of resistance. This eruption of global Christian evangelism was functionally and sometimes purposely an engine of knowledge of the world’s religions. For their own purposes, missionaries and some colonial administrators became professional students of religion, and provided much of the empirical basis for the rise of modern academic study of religion. If the Reformation had put the social and political mechanisms of religious freedom on the agenda, the mission movement inadvertently required a reassessment focused on first hand encounter with world’s religions themselves. The bedrock assumption in Christian assessment of other religions, and hence of their appropriate place in society, turned on the question of salvation. Christianity was believed to contain the only or most comprehensive divine revelation, and to offer the single assured path to eternal redemption. Salvation defined the central separation between Christianity and other religions. The subordination of non-Christian religions followed from this premise: Christian faith offers the only certain path to reconciliation with God and so to eternal felicity and current spiritual transformation. This is the basis for the church’s claim to authority above that of the state. From such a perspective, it is an altruistic act to discourage others from missing this benefit and a charitable act to protect those on the saving path from distraction or corruption. 24

See for instance Tomoko Masuzawa, The Invention of World Religions, or, How European Universalism Was Preserved in the Language of Pluralism (Chicago: University of Chicago Press, 2005).

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The medieval separation of church and state might in theory have limited the state’s ability to control religious matters, as the Reformation had undercut it in fact. But this in no way threatened the theological conviction of Christianity’s unique saving value. The most radical Christian proponents of religious liberty—a Roger ­Williams in Rhode Island or a William Penn in Pennsylvania—were no exceptions to this rule. Their advocacy for a political order entirely at ease with its citizens’ faith or lack of it in no way represented indifference to the high stakes of religious diversity. In their view, only one among the Christian paths could be sure to lead to redemption. The civil status of religions was entirely distinct from their truth or power. The freedom for the few to seek the narrow gate to heaven was so profoundly important that it authorized allowing those pursuing damnation to pass unimpeded, at least politically. If it had been a dictum in much of Christian history that “error has no rights,” this was reversed to say that error required as much liberty right as truth. Those for a Christian ­establishment and those against it agreed the true church was the one path to salvation. They drew different political implications from that belief. There is a negative case for religious liberty, which sees it as a secondary by product of Christian practice. As with those radicals just noted, liberty might be affirmed as the only context in which the true rigorous and voluntarist form of Christianity could be maintained. On that view, religious diversity should be accepted as the necessary context for effective evangelism. Since only genuine personal faith constituted true conversion, the targets of mission needed sufficient freedom to assure that their response was real. Further, respect and non-coercion toward one’s religious neighbors could be commended as intrinsic in the faithful Christian’s obligation to love their neighbors. Such a negative case turns on what is best for Christian faith and witness, or on goodwill toward other religious people, but in no way extends to the content of diverse religious beliefs or practices in their own right. There is also a positive case for religious liberty that addresses such content. From this perspective, different religions merit some level of acceptance or recognition to the extent that they contain substantial truth, overlapping with that in Christianity. Christian thinkers from early centuries affirmed that many religions contained at least some elements worthy of this respect. Judaism, preeminently, included scriptures and convictions identical with and prior to those of Christians. In the wake of World War II, there was a reappropriation and extension of this positive legacy among many Christian thinkers.25 25

For a brief summary of this history and the resulting diversity of theological views, see Paul Knitter, Introducing Theologies of Religion (Maryknoll, NY: Orbis, 2002).

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Theological Grounds for Religious Liberty

The most notable charter for this turn came in 1965, when the second Vatican council of the Roman Catholic Church issued a decree on religious freedom, generally referred to by the first words in its text, Nostra Aetate.26 The decree affirmed religious liberty as a necessary spiritual and political principle, rooted in the dignity of the human person created by God with both free will and conscience. In this, it confirmed and emphasized themes long a part of the church’s approach to religious diversity. Nearly 1700 years after the Edict of Milan, the same principle was restated—not as the transient (as it turned out) policy of a Roman empire on its way to an established Christian church, but now as the doctrinal teaching of the church that had defended that establishment down to the modern period. The document did more than accommodate religious liberty as a ­political principle. It gently but clearly affirmed that there is religious value in the ­substance of other religions: The Catholic Church rejects nothing that is true and holy in these religions. She regards with sincere reverence those ways of acting and of living, those precepts and teachings which, though differing in many aspects from the one she holds and sets forth, nonetheless often reflect a ray of that truth which enlightens all…. The Church therefore exhorts her sons and daughters to recognise, preserve, and foster the good things, spiritual and moral, as well as the socio-cultural values found among the followers of other religions. This is done through conversations and collaboration with them, carried out with prudence and love and in witness to the Christian faith and life.27 The ground for this change had been prepared on two theological tracks. The first was positive reflection on the life of churches under western forms of religious liberty, particularly in the United States. The theologian John Courtney Murray made a case that this situation deserved not just passive acceptance by the Catholic church, but active theological endorsement.28 The second track, represented especially in the work of Karl Rahner, was a 26 27 28

Its official title was Dignitatis humanae personae. Pim Valkenberg, Nostra Aetate: Celebrating Fifty Years of the Catholic Church’s Dialogue with Jews and Muslims (Washington, D.C.: Catholic University of America Press, 2016). xx. John Courtney Murray, The Problem of Religious Freedom, Woodstock Papers Occasional Essays for Theology (Westminster, Md.: Newman Press, 1965).

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t­ heological reassessment of the religions themselves. While maintaining that salvation was uniquely rooted in the incarnation of Christ and finally fulfilled by explicit faith, Rahner elevated the religions themselves as the normal means by which non-Christians could arrive at that destination.29 If Christians had generally recognized two types of engagement with their religiously diverse neighbors, the missional outreach of evangelism and the pragmatic cooperation in the work of civil society, the last sentence of the ­quotation above cautiously endorsed a third: interreligious dialogue. ­Protestant and Orthodox churches in the World Council of Churches adopted a similar outlook, with the establishment of a unit on dialogue. The aim of such dialogue was a genuine encounter of faith with faith.30 As this practice spread, it invited reflection on the conditions necessary for dialogue of this sort, which inevitably included considerations of religious liberty. Perhaps most ­important, the conduct of such dialogue became itself a joint religious activity, requiring discussion and agreement among the parties. The result was a new testing of the theological categories Christians used to interpret religious diversity. Whereas the variance of other religions from Christianity in the past was attributed to ignorance, demonic deception, or sinful will, their similarities were traditionally explained by appeal to a few consistent theological themes. The first was the doctrine of creation. All humans were made in the image of God, endowed with a natural capacity to recognize God and God’s law, even if clouded by sin and society. That capacity was manifest when those in other religions accurately discerned and honored the substance of the moral law or the fact of the existence of a single God. These could be said to belong to “natural revelation,” accessible without explicit reference to Christ or the church. The second theological theme was Christological. The divine word that was incarnate in Jesus had been present in creation (so implicated in the natural revelation just noted), and was active now in the spirit of the risen Christ. In this respect, Christ was an incognito presence within other religions, often fostering or “preparing” aspects in those religions that would predispose them to recognize the validity of the gospel when they encountered it. Thus, missionaries could see value in existing religious materials—like the anticipation of a messianic figure—that chimed with the biblical narratives.

29 30

Karl Rahner, “Christianity and the Non-Christian Religions” in Theological Investigations (Baltimore Helicon Press, 1966). World Council of Churches, Guidelines on Dialogue with People of Living Faiths and I­ deologies (Geneva World Council of Churches 1979).

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Third, the Holy Spirit was understood in theology and tradition as particularly associated with direct and immediate illumination from God. Divine freedom as a principle and biblical texts by example suggested that humble and God-seeking persons in any time or location could receive direct gifts of wisdom, beauty, and prophecy. In the aftermath of World War II, and in recognition of Christian complicity in the holocaust, the immediate testing ground for these categories was Christian relation with Judaism. Indeed, Nostra Aetate had originally been planned as a statement dealing only with Judaism. Although the adoption of Hebrew scriptures as the foundation of the Christian biblical canon recognized a unique and valid revelatory tradition that predated Christian faith, that recognition had never been extended to living Judaism alongside Christian faith. Following upon Nostra Aetate, numbers of Christian communions came to this explicit affirmation: the continuing validity of God’s covenant with the Jews, distinct from Christian commitment.31 This discussion had its effect on the wider understanding of religious pluralism. In 1983, Alan Race introduced a typology of Christian theological approaches to religious diversity that became the focus of sustained theological discussion.32 His typology distinguished three perspectives on the relation between salvation and religious diversity: exclusivism, inclusivism, and pluralism. Exclusivism was the view that Christianity was the sole or exclusive path to salvation, and that the truth necessary to salvation was found only in that tradition. Inclusivism agreed that Christian revelation was the exclusive source of salvation, but held that it could be effectively accessed through those elements in other religions that led toward “fulfilment” in Christianity. Both exclusivism and inclusivism are well represented in Christian tradition. They are not always easy to distinguish in principle, as indicated for instance by the fact that exclusivists could hold that Christianity was the sole path to salvation and yet in principle also believe that all would be saved, through some universal “­fulfilment” scheme such as an immediate post-mortem encounter with Christ. Pluralism held that different religions were independently effective in leading their adherents to salvation. In an explicit Christian theological form, as represented in the ­pioneering work of John Hick, this was a more novel development.33 31 32 33

See Franklin Sherman, Bridges: Documents of the Christian-Jewish Dialogue (New York: Paulist Press, 2011). Alan Race, Christians and Religious Pluralism: Patterns in the Christian Theology of R ­ eligions (Maryknoll, N.Y.: Orbis Books, 1983). See Paul F. Knitter and John Hick, The Myth of Christian Uniqueness: Toward a Pluralistic Theology of Religions, Faith Meets Faith (Maryknoll, NY: Orbis Books, 1987).

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Whereas previously the theological case for religious liberty appealed to the requirements for Christian mission or authentic religious practice, or to conscience and freedom as part of the human integrity granted in creation, from Vatican II on, a new element was being added: respect not just for the natural gifts of religious people, but for God’s work in and through the religions themselves. This shift toward a focus on the particular content of religions individually implied a similar shift in the view of the fact of religious diversity. Traditional Christian mission viewed religious pluralism within a Christian society as an anomaly, to be eliminated through conversion, and pluralism in the wider world as either a similar field for evangelism or as a mystery to be commended to God, awaiting an eschatological resolution. In the post-­enlightenment west, religious pluralism took on another significance. The existence of other faiths and the virtues of their adherents were staple elements in attacks on the plausibility of Christian claims, a challenge that required an apologetic, theoretical explanation. But the conversation we have just outlined suggested a third meaning for pluralism, religious diversity as a richness to be explored. Religious dialogue and increased adoption or recognition of multiple religious practice or belonging, suggest that the diversity cultivated by religious freedom provides a benefit to each tradition. That diversity provides an important avenue for learning, spiritual growth, and mutual transformation among the religious traditions. Such learning has civic and practical benefits, but it can be seen also as a good for the internal health of particular religious traditions. Both at the popular level of interreligious cooperation and sharing, and at the scholarly level, a kind of comparative theology has developed, in which the teachings of various religions become positive sources of reflection for Christian understanding and practice.34 The new horizon here is the appreciative reflection on the substance of another religion as part of the faithful practice of the Christian one. 7 Conclusion In a globally connected world, where no religion is an absolute majority and even those religious traditions that predominate in some regions have ready communication with adherents who are local minorities, religious liberty increasingly requires a universal formulation. This essay summarizes some of 34

S. Mark Heim, “Comparative Theology at 25: The End of the Beginning” Modern Theology 35, no. 1 (2019).

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the central elements that may inform Christian churches in their commitment to and interpretation of that freedom. From the early Christian centuries, we may retrieve the central emphasis on individual conscience and voluntary community in religious commitment. From the medieval “two swords” theology and its subsequent development, we may appreciate the wisdom of an institutional integrity for religious communities distinct from governmental powers. From the experience of persecution in the early Christian period and the experience past and present of global Christian communities living as minorities, we can affirm the wisdom expressed in the Edict of Milan, which extended religious liberty on an equal basis to all. From the historical struggles around this issue in the west, we can appreciate not only the pragmatic challenges of engineering a common life in the midst of religious disagreement, but also the fundamental need for a positive theoretical foundation that validates free exercise of religion as an intrinsic good, not a grudging toleration or a transient political truce. Finally, incorporating the newer theological appreciation for the particular content of the religions, each in its own right, we may integrate all of these features as part of the core practice of Christian faith itself. Selected Bibliography Augustine. “Letter 93 to Vincentius.” https://www.newadvent.org/fathers/1102093.htm. Boyarin, Daniel. Border Lines: The Partition of Judaeo-Christianity. Divinations. ­Philadelphia, Pa.: University of Pennsylvania Press, 2004. Brown, Peter. Augustine of Hippo; a Biography. Berkeley: University of California Press, 1967. Churches, World Council of. Guidelines on Dialogue with People of Living Faiths and Ideologies Geneva World Council of Churches 1979. Gaustad, Edwin S. Church and State in America. Religion in American Life. 2nd ed. New York: Oxford University Press, 2003. Gaustad, Edwin S. Faith of Our Fathers: Religion and the New Nation. 1st ed. San ­Francisco: Harper & Row, 1987. Heim, S. Mark. “Comparative Theology at 25: The End of the Beginning”. Modern T ­ heology 35, no. 1 (2019). Holland, Tom. The Forge of Christendom: The End of Days and the Epic Rise of the West. 1st U.S. ed. New York: Doubleday, 2008. Jordan, William Chester. Europe in the High Middle Ages. The Penguin History of Europe. New York: Viking, 2003. Knitter, Paul. Introducing Theologies of Religion. Maryknoll, NY: Orbis, 2002.

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Knitter, Paul F., and John Hick. The Myth of Christian Uniqueness: Toward a Pluralistic Theology of Religions. Faith Meets Faith. Maryknoll, NY: Orbis Books, 1987. Lake, Kirsopp, Clement, Clement, Ignatius, and Polycarp. “Epistle to Diognetus”. In The Apostolic Fathers; the Loeb Classical Library, edited by Kirsopp Lake. London, New York: Heinemann; Macmillan, 1912. Masuzawa, Tomoko. The Invention of World Religions, or, How European Universalism Was Preserved in the Language of Pluralism. Chicago: University of Chicago Press, 2005. Murray, John Courtney. The Problem of Religious Freedom. Woodstock Papers ­Occasional Essays for Theology,. Westminster, Md.: Newman Press, 1965. Nations, United. “Universal Declaration of Human Rights” https://www.un.org/en/about -us/universal-declaration-of-human-rights. Race, Alan. Christians and Religious Pluralism: Patterns in the Christian Theology of R ­ eligions. Maryknoll, N.Y.: Orbis Books, 1983. Rahner, Karl. “Christianity and the Non-Christian Religions”. In Theological Investigations 115–34. Baltimore Helicon Press, 1966. Robinson, I.S. “Church and Papacy”. In The Cambridge History of Medieval Political Thought C. 350–C. 1450, edited by J. H. Burns, viii, 808 p. Cambridge Cambridgeshire; New York: Cambridge University Press, 1988. Sharma, Arvind. Hinduism and Human Rights: A Conceptual Approach. Law in India Series. New Delhi: Oxford University Press, 2004. Sherman, Franklin. Bridges: Documents of the Christian-Jewish Dialogue. New York: Paulist Press, 2011. Stark, Rodney. Cities of God: The Real Story of How Christianity Became an Urban Movement and Conquered Rome. 1st ed. San Francisco: HarperSanFrancisco, 2006. Stark, Rodney, and William Sims Bainbridge. The Future of Religion: Secularization, Revival, and Cult Formation. Berkeley: University of California Press, 1985. Tocqueville, Alexis de, Harvey Claflin Mansfield, and Delba Winthrop. Democracy in America / Translated, Edited, and with an Introduction by Harvey C. Mansfield and Delba Winthrop. Chicago: University of Chicago Press, 2000. Valkenberg, Pim. Nostra Aetate: Celebrating Fifty Years of the Catholic Church’s Dialogue with Jews and Muslims. Washington, D.C.: Catholic University of America Press, 2016. Wilken, Robert Louis. Liberty in the Things of God: The Christian Origins of Religious Freedom. New Haven, CT: Yale University Press, 2019. Zagorin, Perez. How the Idea of Religious Toleration Came to the West. Princeton, N.J.: Princeton University Press, 2003.

PART 2 Concepts and Dimensions in Religious Freedom and Religious Pluralism

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Chapter 5

Religious Freedom as a Human Right Göran Gunner “A dear child has many names” is a Swedish idiom, straightforward ­depicting that important things and life-changing events may be presented with a variety of names in different contexts. Religious freedom is such an expression that can be formulated through different names. Regularly used in literature, research and media are expressions such as religious freedom, religious liberty, freedom of religion, freedom of belief, freedom of conscience, all of them as a summary term for a specific human right to embrace and exercise religion. This special right has been seen as fundamental to human rights since expressions of religion are found in most societies and cultures.1 During the years, efforts to define the term religion as such has been a complex and ­sensitive issue in the United Nations (UN) as well as in its member States.2 But, what is permitted and what is protected in connection with embracing and exercising one’s faith becomes increasingly clear through international declarations, conventions, statements from monitoring mechanisms and decisions based on legal cases. Thus, the concept of religious freedom has been further elaborated on the basis of the work with the human rights as expressed in ­different international legal instruments using “freedom of conscience, the profession and free practice of religion,”3 “freedom of conscience and of religion”4 and “right to freedom of thought, conscience and religion.”5 Article 18 of the UN Universal Declaration of Human Rights (UDHR), adopted in 1948, is a fundamental example on how the human rights perspective defines this freedom:

1 See, e.g., Leonard Swidler, “Human Rights and Religious Liberty – From the Past to the Future,” in Religious Liberty and Human Rights in Nations and in Religions, edited by Leonard Swidler (Philadelphia: Ecumenical Press, 1986), vii. 2 See, e.g., Natan Lerner. Religion, Beliefs, and International Human Rights. (New York: Orbis Books, 2000), 1–8; Bahiyyih G. Tahzib. Freedom of Religion or Belief. Ensuring Effective International Legal Protection. (The Hague: Martinus Nijhoff Publishers, 1996), 2. 3 “African Charter on Human and Peoples’ Rights.” 4 “American Convention on Human Rights.” 5 “Universal Declaration of Human Rights,” “International Covenant on Civil and Political Rights,” “European Convention on Human Rights.” © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_006

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Everyone has the right to freedom of thought, conscience and r­ eligion; this right includes freedom to change his religion or belief, and f­ reedom, either alone or in community with others and in public or private, to ­manifest his religion or belief in teaching, practice, worship and ­observance. This way of expressing this particular right opens up. Words like conscience and thought indicate a scope that goes far beyond a narrow conception of ­religion. But, not always. Instead, individual States as well as religious communities have perceived the scope of freedom of religion in a narrow sense. In some cases, the implication is to accept only officially recognized denominations, or for the State or the majority religion to exclude unfavourable religions and beliefs, or not to legitimize different minority religions and beliefs etc. In other cases, new religious movements – sometimes referred to as sects – have been excluded from the right. It has even been argued for an interpretation that implies freedom from religion in the sense of not having to encounter religious expressions in the public life. All this indicates a deviation from the international interpretation and entails a violation of the right. Violations occur in a variety of situations in societies, target victims as individuals and communities and are perpetrated by different actors with various motives. But freedom of religion or belief, according to the international standard, is for every human being. What, then, is the meaning of religious freedom? It depends, of course, on the questioner’s point of departure. Is it a separate state, is it a religious ­community of different kinds, is it an individual who feels violated in his or her freedom, etc.? This chapter is based on the premise that there is an international agreement and a standard for freedom of religion or belief. For those who approach the issue of religious freedom, it is crucial to know basic principles as well as interpretations based on declarations and conventions. This means that the purpose of this chapter is to describe a complex international system for the protection of religious freedom. Then it will be possible to know whether perceptions of the freedom of religion or belief are in line with, are contrary to or are improving the international norms. 1

Freedom of Religion or Belief – A Pluralistic Approach

A clear shift from focusing mainly on religious freedom was taken through the UN International Covenant on Civil and Political Rights (ICCPR). When codifying religious freedom in 1976, it is with the wording “freedom of thought,

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conscience and religion.” The article includes “belief of his choice.” The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) goes even one step further. Article 1, section 1 in the Declaration adds the words “whatever belief of his choice”:6 Everyone shall have the right to freedom of thought, conscience and r­ eligion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. The combination of religion and belief is consistently implemented throughout the declaration. The pluralistic approach is not limited to religions but applicable to whatever belief. By highlighting the expression belief, it is distinctly displayed that also nontheistic convictions are included in the protection. So, what is advocated is a pluralism of religions and beliefs and it is up to the decision of each individual with equality as a guiding principle. The Human Rights Committee, the treaty body dealing with the ICCPR, issued a General Comment (22) in 1993, giving an interpretation of the provisions in the covenant. In addition to the traditional way of expressing the right to freedom of thought, conscience and religion, an important clarification was made by the committee stating that the right “includes the freedom to hold beliefs.” When the committee elaborates concerning the scope of the right, it is broadly constructed aiming to include a wide variety of aspects of religions and beliefs: Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.7

6 “Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.” 7 “General Comment No. 22.”

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Using the terms non-theistic and atheistic as well as the right not to profess show that the intention with belief is broad. So, in order to fully understand religious freedom as a human right we need today to relate to the concept freedom of religion or belief. Thus, freedom of religion or belief as a human right boils down to unity behind a common ground based on a diversity of expressions of religions and beliefs, religious or non-religious convictions, with for example different views on the meaning of life. These are supposed to live together in harmony with human dignity. Or in other words, it’s about not accepting any form of ­violation, intolerance or discrimination against any form of religion or belief. The response from a large number of religious and belief communities, both more traditional and newer, is to consider freedom of religion or belief as an important accomplishment. In many societies this freedom is looked upon as a basic freedom, while at the same time recognizing the complexity of the exercise and relation to certain other freedoms. One way of describing freedom of religion or belief is as a “classical” human right being beyond dispute and at the same time being controversial.8 However, to take religions and beliefs in all their dimensions seriously also implies taking pluralism seriously, including sometimes irreconcilable differences in world-views and practices.9 2 Human Rights Instruments and Codification of Religious Freedom or Belief 2.1 United Nations System The human rights sources for freedom of religion or belief are an extensive and complex body of covenants, declarations and resolutions as well as case law on international and regional levels.10 Two basic documents are the UDHR, Article 18 (quoted above) and ICCPR, Article 18: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community 8 9 10

Heiner Bielefeldt and Michael Wiener. Religious Freedom Under Scrutiny. (Philadelphia: University of Pennsylvania Press, 2020), 1–9. Heiner Bielefeldt, Nazila Ghanea and Michael Wiener, eds. Freedom of Religion or Belief: An International Law Commentary. (Oxford, UK: Oxford University Press, 2016), 11. For a detailed review of existing documents, see e.g. Bielefeldt, Ghanea, and Wiener. ­Freedom of Religion or Belief; Tore Lindholm, W.Cole Durham Jr. and Bahia Tahzib-Lie, eds. Facilitating Freedom of Religion or Belief: A Deskbook. (Leiden: Martinus Nijhoff, 2004).

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with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.11 Other articles in the ICCPR relevant for freedom of religion or belief are: ­Article 19 – freedom of opinion and expression, Article 20 – prohibition of propaganda advocating war or national, racial or religious hatred, Article 27 – the right for members of religious, ethnic or linguistic minorities as well as articles on non-discriminations, and Articles 2:1; 24:1 and 26. A declaration that deals specifically with freedom of religion or belief is the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and considered as “the most important global instrument regarding religious rights.”12 Important is that the declaration establishes in Article 6 a list with manifestations of freedom of religion or belief to be generally recognized (see below). The Human Rights Committee is a key international body in monitoring and giving clarifications based on the ICCPR. The most significant contribution so far is the General Comment 22 elaborating Article 18 of the ICCPR provisions on freedom of thought, conscience and religion. Important in the UN system are also resolutions of the Human Rights Council, the General Assembly and other UN organs in relevant parts. Also, relevant treaty bodies and provisions are the International Humanitarian Law (Geneva Conventions and Protocols), the International Criminal Law and conventions from UNESCO and ILO. Another key actor is the Special Rapporteur on freedom of religion or belief as an independent expert appointed by the UN Human Rights Council. The duty of the Rapporteur is “to identify existing and emerging obstacles to 11 12

“International Covenant on Civil and Political Rights.” Natan Lerner, “The Nature and Minimum Standards for Freedom of Religion or Belief,” in Facilitating Freedom of Religion or Belief: A Deskbook, edited by Tore Lindholm, W. Cole Durham Jr., and Bahia Tahzib-Lie. (Leiden: Martinus Nijhoff, 2004), 72.

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the enjoyment of the right to freedom of religion or belief and present recommendations on ways and means to overcome such obstacles.”13 Non-Governmental Organisations including religious institutions with accreditation status in the UN and regional systems have a consultative role to play and can also create awareness in different lobby activities and media. The international system also contains relevant articles in the Convention on the Prevention and Punishment of the Crime of Genocide (1951), the International Convention on the Elimination of All Forms of Racial Discrimination (1969), the International Covenant on Economic, Social and Cultural Rights (1976), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), the Convention on the Rights of the Child (1990), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2003). 2.2 Regional Systems Three regional documents can be mentioned – African, American and ­European. The African Charter on Human and Peoples’ Rights (1986), Article 8: Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms. The American Convention on Human Rights (1978), Article 12: 1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private. 2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions. The European Convention on Human Rights (ECHR, 1953), Article 9): 13

“Special Rapporteur on freedom of religion or belief.” OHCHR, accessed October 10, 2021, https://www.ohchr.org/en/issues/freedomreligion/pages/freedomreligionindex.aspx.

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1.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of ­others. At the regional level a significant jurisprudence has emerged through court decisions – the European Court of Human Rights in Strasbourg, the Inter-American Court of Human Rights in San José, and the African Court on Human and Peoples’ Rights in Arusha. The European Court of Human Rights has been characterized as “the most effective of the regional human rights systems” depending on being able to make binding decisions.14 The provisions of Article 9 in the ECHR and Article 18 in the ICCPR are consistent, which means that decisions of the European Court of Human Rights may have further validity than regionally. Other important actors on regional level are the Organization for Security and Cooperation in Europe (OSCE)15 and European Union (EU).16 So, to determine a current regulation concerning freedom of religion or belief is a challenging task even if the basic factors are in place. In the end, the regulations meet with the legislation and interpretation of the individual States, which in many cases leads to violations and deviations from the internationally recognized rights. 3

Religions, Religious Communities and Each and Everyone

Believers usually share a basic idea to come together and meet in fellowship with like-minded people. They unite in congregations, faith communities, 14 15 16

The Editors, with Nazila Ghanea, “Introduction,” in Facilitating Freedom of Religion or Belief: A Deskbook, edited by Tore Lindholm, W.Cole Durham Jr., and Bahia Tahzib-Lie. (Leiden: Martinus Nijhoff, 2004), liii. See e.g. “Freedom of Religion or Belief,” OSCE, accessed October 10, 2021, https://www .osce.org/odihr/freedom-of-religion-or-belief. See e.g. “EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief,” Council of the European Union, accessed October 10, 2021, https://www.consilium .europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585.pdf.

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associations etc. As the need arose to gather, premises such as temples, ­synagogues, mosques, churches, houses of prayer, meeting rooms or huge cathedrals are built. Being together in order to manifest a religion or belief is thus a fundamental expression in most faiths, both those that have thousands of years of traditions and those that are relatively newly established. The ultimate purpose of human rights is to protect the individual human being in his or her rights and against violations and violence. The individual is the rights holder while the State is the duty bearer and, in these capacities, the relation between the State and the individual person is in focus. Thus, it is of the utmost importance to differentiate this right from the religions and beliefs as such and what they may consider to be their rightful right. Simply put, human rights do not protect a religion, a belief, or a religious community as such but the rights of the individual to uphold and to manifest the faith. A way of expressing this is “freedom of religion or belief protects ‘believers rather than beliefs’.”17 The right is individual but at the same time the protection is for the individual “either individually or in community with others.” It means the rights to gather, to unite in an organized form, to gather in designated premises and so on. So, the right is manifested in a social context, and not limited to what happens in specific premises, but can also be expressed in public. A number of states in the world have introduced special requirements for a religious organization to be legally recognized. This can easily become a means of government control. There may be different reasons why a group is not recognized or wants to receive formal recognition. But the individual’s freedom of religion or belief should not depend on whether a group obtains legal status. For example, the European Court of Human Rights accepts complaints about violations from religious organizations on behalf of their members.18 It can be argued that from a human rights perspective, the relationship between state and religious communities as such is complicated. Even if they are not protected as such, according to the UN General Comment 34, it is not allowed for a state to by law “discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers.” Nor is it allowed to use the law in order “to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”19 17 18 19

Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief, 11. See e.g. CHA’ARE SHALOM VE TSEDEK v. FRANCE (Application no. 27417/95, 27 June 2000); CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND (Application no. 16354/06, 13 July 2012). “General Comment No. 34,” United Nations Digital Library, 12, accessed October 10, 2021, https://digitallibrary.un.org/record/715606.

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In a report to the UN General Assembly, the then UN Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, commented on defamation of religion and the right to freedom of religion or belief. A few quotations from the report give an indication of the tensions. – As such, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. … (par. 36) – … Defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion. … (par. 37) – … The rigorous protection of religions as such may create an atmosphere of intolerance and can give rise to fear and may even provoke the chances of a backlash. … par. 42) – According to article 20 of the Covenant, “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (par. 44) – … The recognition, respect and practice of religious pluralism, which encompasses criticism, discussion and questioning of each other’s values, should be the cornerstone of their relationships and their combat against all forms of discrimination. (par. 65).20 The then UN Special Rapporteur, Abdelfattah Amor, in a report on the elimination of all forms of religious intolerance, encouraged already 2001 all states as well as relevant non-governmental organizations, intergovernmental organizations and media to promote a “culture of tolerance and respect for the diversity of religions and for religious sites, which represent an important aspect of the collective heritage of mankind (Article 27)”21 4

Normative Core of Freedom of Religion or Belief

To identify a universal human rights standard and the common norms concerning freedom of religion or belief is in one way complex and at the same time a great deal of consensus exists. In order to explain the issue, the book Facilitating Freedom of Religion or Belief22 uses 1017 pages, Freedom of Religion

20 “A/HRC/2/3 20 September 2006,” refworld, accessed October 10, 2021, https://www.refworld .org/docid/45c30b640.html. 21 “Rapporteur’s Digest on Freedom of Religion or Belief,” Special Rapporteur on freedom of religion or belief, 18, accessed October 10, 2021, https://www.ohchr.org/documents /issues/religion/rapporteursdigestfreedomreligionbelief.pdf. 22 Lindholm, Durham Jr., and Tahzib-Lie. Facilitating Freedom of Religion or Belief.

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Table 1

(Facilitating …)

(What Freedom …)

(Freedom of …)

1. Internal freedom

1.  The freedom to have, choose, change or leave a religion or belief 2. Freedom to manifest a religion or belief 3. Protection from coercion 4. Protection from discrimination 5. Parents rights, children’s rights

1.1.  Freedom to Adopt, Change, or Renounce a Religion or Belief

2. External freedom 3. Noncoercion 4. Nondiscrimination 5. Rights of parents and guardians

6. Corporate freedom and 6. The right to conscientious legal status objection 7. Limits of permissible restrictions on external freedom 8. Nonderogability 7. Employers and employees

1.3. The Right to Manifest One’s Religion or Belief 1.2. Freedom from Coercion Discrimination Vulnerable Groups (Women; Persons Deprived of Their Liberty; Refugees, Asylum Seekers, and Internally Displaced Persons; Children; Minorities; Migrant Workers)

or Belief23 are done with 660 pages while the booklet What Freedom of Religion Involves and when it Can Be Limited24 gives the main points in 18 pages. Agreement is overwhelming in general and specifically when it comes to the first four points, internal freedom, external freedom, protection from coercion and protection from discrimination. While two of the entities concentrate on parents’ and, children’s rights the third includes several vulnerable groups.

23 24

Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief. What Freedom of Religion Involves and when it Can Be Limited. Bromma: Swedish Mission Council, 2012. For a series of short films, see e.g. FORB Learning Platform, https://www .forb-learning.org/film-resources.html.

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Forum Internum – Internal Freedom

What is considered to be the internal dimension of freedom of religion or belief is labelled forum internum. The Convention expresses it as “freedom to have or to adopt a religion or belief of his choice.”25 The important fact with forum internum, the core of a person’s convictions, is that this aspect of the right can never be restricted, thus having unconditional protection. Regarded as an absolute freedom, the State cannot interfere with forum internum. 5.1 Freedom of Choice Freedom to adopt, change, or renounce a religion or a belief is considered as basic from a human rights’ perspective and a cornerstone since it strengthens the human being. The ICCPR states it is by “choice.”26 Still, the right to change, the freedom of choice – both in terminology and in content – are controversial and challenged by some states as well as some religious authorities. A culture of unity and harmony in religion can be beneficial for both the State and the majority religion, but at the same time be offensive to dissenting views and minority communities. Examples are discrimination, pressure to reconvert, harassment, violent attacks and even killings of a person choosing to convert to or renounce faith. Another example is the protection of a specific religion or belief through for example family laws at the expense of each individual’s right to choose or renounce faith. Any restriction of the right to choose religion or belief is a threat to a pluralistic society and contrary to the unconditional protection according to freedom of religion or belief.27 This means that the State does not have the right to limit in any way the freedom to adopt, change, or renounce a religion or a belief. 5.2 The Right to Freedom of Conscience The expression “freedom of conscience” is included in declarations and conventions. It is not about every opinion that may result in manifestations but existential convictions based on, as expressed by the European Court of Human Rights, “views that attain a certain level of cogency, seriousness, cohesion and importance.”28 It has been argued that on an ethical and moral level, the right calls on everyone to be responsible and to give space for freedom and 25 26 27 28

“International Covenant on Civil and Political Rights,” Article 18:1. Ibid., 18:2. For the concept forum internum, see below. CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM (Application no. 7511/76; 7743/76) 25 February 1982 § 36.

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limit violence and oppression with reason and empathy.29 The right to follow a moral conviction or concern as expressions of an individual’s identity is basic in order to protect diversity in societies. At the same time, the border line is not clear between what is protected and what is not. When the manifestation of freedom of conscience appears in international case law it is about for example participation in carrying out abortions, paying tax, saluting the flag, singing the national anthem and swearing an oath. The right can be violated by the State but also in the society as well as when it comes to employment. In all the cases, the State has an obligation to protect. The right to conscientious objection in the form of refusing military ­service is an issue in states with compulsory military service for its citizens. The ­conventions do not explicitly mention conscientious objection. But, the Human Rights Committee states “that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”30 Still, the opposition to this interpretation is strong from some states resulting in imprisonment or sanctions against the individual claiming the right. 5.3 Freedom from Coercion Protection from coercion is unconditional not allowing any restriction. The General Comment 22 clarifies the significance of the ICCPR: Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert.31 No compulsion may occur when it comes to a person’s will to change, or maintain a religion or belief. Violence and coercion in relation to religion and belief are clearly marked as incompatible with the standard of international human rights. Issues at stake are laws that prevent conversion, forced conversions, reprisals and violence against converts or exclusion from positions in society or education because a conversion. But also, regulations concerning interreligious marriage. One way of explaining it is that a critical line “runs between

29 Susanne Wigorts Yngvesson, Frihet till samvete. (Stockholm: Timbro, 2016), 8. 30 “CCPR General Comment No. 22,” 11. 31 Ibid., 5.

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respect for freedom on the one hand and different forms of a­ uthoritarianism— in particular the threat and use of coercion—on the other.”32 5.4 Non-discrimination Equality for each and every one is in the human rights system a cornerstone for a pluralistic society and require equality before the law and no one should be discriminated against.33 A prohibition of discrimination – both direct and indirect – based on religion or belief is established in several conventions and declarations as well as in UN resolutions. “Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity … and shall be condemned as a violation of the human rights and fundamental freedoms …”34 At the same time, the real situation in many states shows that discrimination occurs frequently and not least towards minorities, immigrant denominations, new religious communities or atheists. Discrimination in many cases is gender related and target specifically women. Religious intolerance can depend on for example legislation or restrictions by the State, on hostility in a society but also on the activities of religious communities. Some states have declared a religion as State religion. It may look very different from country to country and a consequence of an established religion may be discrimination against other beliefs, sometimes under the auspices of the law. The General Comment 22 prescribes that such a situation “shall not result in any impairment of the enjoyment of any of the rights under the ­Covenant … nor in any discrimination against adherents to other religions or non-­believers.”35 State religion as such is not prohibited according to the human rights system but a lot of crucial issues can be raised not the least in relation to discrimination by the State who at the same time is supposed to protect and promote freedom of religion or belief. 5.5 In Need of Special Protection Despite an international system for the defence of the individual, violations occur from the State, within society and from individuals. Here are some examples of the need for effective protection. Incitement, hatred, hate speech and violence solely because of a person’s beliefs such as anti-Semitism, Islamophobia and Christianophobia. 32 33 34 35

Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief, 70. “Universal Declaration of Human Rights,” Article 7. “Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” Article 3. “General Comment No. 22”, par 9.

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Forum Externum – Manifestations

An individual person may in daily life experience that the forum externum and forum internum may be interwoven and interrelated. It has been suggested that both dimensions should generally be seen in a continuum and always be seen in conjunction.36 The inner conviction governs what exercises you perform and is completely dependent on the possibility of practicing religion or belief. According to the ICCPR, the conviction of a person will lead to “worship, observance, practice and teaching.” An essential part is the right to manifest a faith which constitutes a right for the individual but may be performed in community with others. This is as important as having a religion and it can be conducted in private or in public. The UDHR puts it “to manifest his religion or belief in teaching, practice, worship and observance.” The ICCPR uses the same wording but placing “worship, observance” first in order. The manifestations of religions or beliefs may as forum externum be ­protected. Before dealing with what is protected in relation to freedom of religion or belief some remarks on limitations. Manifestations as forum externum may be limited under specific circumstances according to the preconditions in ICCPR, Article 18:3. A first necessary precondition is that the limitation is prescribed by law. A second precondition it that the limitation is necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Bielefeldt and Wiener note: “What it signifies is that states do not have a general permission to impose limitations as they see fit. Instead, it is the other way around in that limitations are generally impermissible – unless and until the said criteria are fully met.”37 To be legally prescribed and with a legitimate aim may seem simple, but when it comes to individual States, it opens up for misuse when implementing restrictions. An individual component such as morality can be perceived completely differently depending on factors such as culture, religion, politics and thus justify discrimination of undesirable religious groups in the State. But according to Nowak and Vospernik “limitations that would appropriately be justified on the ground of morals could for the most part be justified by reference to protection of the fundamental rights of third parties” and the term public order can be used narrowly to prevent public disorder.38 36 37 38

Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief, 82, 93. Bielefeldt, Heiner and Michael Wiener. Religious Freedom Under Scrutiny, 56. Manfred Nowak and Tanja Vospernik, “Premissible Restrictions on Freedom of Religion or Belief” in Facilitating Freedom of Religion or Belief: A Deskbook edited by Tore Lindholm, W.Cole Durham Jr. and Bahia Tahzib-Lie. (Leiden: Martinus Nijhoff, 2004), 150–160.

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The jurisprudence of the European Court of Human Rights uses the doctrine of margin of appreciation giving the member States opportunities to ­accommodate ethnic, cultural, or religious peculiarities, thus being context dependent and indicating that each member State may have their own approach.39 On the international level, the Human Rights Committee does not usually grant states a wide margin of appreciation.40 In a thematic report, the Special Rapporteur on freedom of religion or belief, Asma Jahangir, “cautioned that this doctrine should not lead to questioning the international consensus.”41 Regarding manifestations of freedom of religion or belief, there are of course not a complete or jointly established list of activities. Still, it is possible to offer guidelines about what is included in manifestation as laid down in the directives. In the following, four different sources are used: The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on ­Religion or Belief, Article 6 (referred to as Declaration 1981), UN Human Rights Committee’s General Comment No. 22, § 4 (referred to as General Comment), and the Digest made by the Special Rapporteur on freedom of religion or belief, part 1:3 (referred to as Special Rapporteur).42 For the countries belonging to the European Union, there is the EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief, § 40 (referred to as EU Guidelines).43 It is important to remember that the General Comment is the elaboration of the intention of the ICCPR. The Rapporteur is appointed by the United Nations Human Rights Council and is acting as an independent expert. Even when headlines are presented, it is important to keep in mind that they are never exhaustive but indicative. 6.1 Worship and Places of Worship The Declaration 1981 states that the freedom includes “a) worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes.” The General Comment rephrases with “building of places of worship” while the Special Rapporteur emphasises freedom to worship and places of worship as well as questions related to registration. In comparison, the EU Guidelines note that “limitation on places of worship and state registration of religious or belief groups, must be exceptional.” 39 40 41 42 43

“Margin of Appreciation,” Council of Europe, accessed October 10, 2021, https://www.coe .int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp. Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief, 565. Ibid., 154. “Rapporteur’s Digest on Freedom of Religion or Belief,” https://www.ohchr.org/documents /issues/religion/rapporteursdigestfreedomreligionbelief.pdf. “EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief.”

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Individuals can exercise their right together with others which includes having a building or place for, for example, worship and the celebration of holy days even if this may differ from community to community. Violations of this right are ongoing in different states through unequal registration requirements, and for certain communities bans against or special restrictions on the construction of a building for worship. Social tensions between different groups in societies sometimes result in attacks and violations of sacred sites with devastating results. Religious buildings and cemeteries are frequently exposed to destruction, damage, vandalism, desecration, graffiti etc. Communities and individuals are targeted by threats, assaults, hostile writings, hate crimes, extreme violence and terrorist attacks.44 In its capacity as the duty bearer, the State has an obligation to protect the believer who visits a holy place, to protect religious leaders, priests and teachers, as well as to safe-guard the buildings and cemeteries as such. When clarifying the range of the ICCPR, the General Comment includes on the freedom the “use of a particular language customarily spoken by a group.” In summary it is possible to use the phrasing from the EU Guidelines “Individuals, have the right to decide for themselves whether and how they wish to manifest their religion or belief” (§ 40). 6.2 Ritual, Ceremonial Acts, Symbols and Dietary Regulations The right to manifestation includes according the Declaration 1981 to “c) make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief.” The General Comment further explains this in three points, “ritual and ceremonial acts giving direct expression to belief “, “use of ritual formulae and objects” and “display of ­symbols.” The Special Rapporteur talks about “religious symbols” and “participation in rituals associated with certain stages of life.” This clarification offers more details compared to the more general concept of worship and enables parts of what the conventions describe as observance and practice. The use of symbols in the public sphere gives expression of religious pluralism in a society but also raises questions about how public officials, such as police, teachers and even pupils at public schools, can wear religious symbols. At stake is also if a state or other actors force a person to use a religious symbol, a violation to the freedom. Distinctive clothing as garments and head coverings 44

Organisations regularly reporting violations against freedom of religion or belief in different parts of the world are for example Human Rights Without Frontiers (HRWF) – https:// hrwf.eu/ and Forum 18 – https://www.forum18.org/. The homepage Safer and Stronger Communities in Europe (SASCE) gives information for individuals and religious communities that may be targeted – https://www.sasce.eu/.

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are often closely connected to the identity of an individual, both for clergy and the believers in general. The General Comment clarifies the range of freedom of religion or belief to include “wearing of distinctive clothing or head-­coverings.” Further, the General Comment includes in the freedom according to ICCPR “observance of dietary regulations.” This has caused q­ uestions of interpretation about the right to slaughter based on religious regulations. The European Court of Human Rights states that “ritual slaughter must be considered to be covered by a right guaranteed by the Convention [ECHR], namely the right to manifest one’s religion in observance …”.45 The UN system has also made clear there are limits, for example excluding rituals that are harmful traditional practices and rituals violating the fundamental rights of others such as female genital mutilation.46 6.3 Holidays and Days of Rest According to the Declaration 1981, freedom of religion or belief includes the right to “h) observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief.” Both the General Comment and the Special Rapporteur writes “observance of holidays and days of rest.” It is an integral part of most religious systems to be able to celebrate Holy days and specific festivals. This may be done in the family setting or in the special places for worship. Also, this includes the manifestation of annual Holy days in the public sphere through for example pilgrimages and decoration of sacred buildings and places. In a pluralistic society, this aspect of the right is of great importance as it gives visible expression to the presence of members belonging to different religions. 6.4 Contributions and Charitable or Humanitarian Institutions The Declaration 1981 declares the right to “b) establish and maintain appropriate charitable or humanitarian institutions” and to “f) solicit and receive voluntary financial and other contributions from individuals and institutions.” This corresponds to what is mentioned by the Special Rapporteur as “solicit and receive funding” but is not mentioned by the General Comment. This aspect of the freedom relates to the ICCPR concept “practice” and to some degree to “teaching.” 45 46

CHA’ARE SHALOM VE TSEDEK v. FRANCE (Application no. 27417/95, 27 June 2000), 73. See e.g. “Fact Sheet No.23, Harmful Traditional Practices Affecting the Health of Women and Children,” Unites Nations, accessed December 11, 2021, https://www.un.org/ruleoflaw /files/FactSheet23en.pdf.

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Several states have put restrictions on receiving funds from abroad or accusing the receiving part for collaboration with foreign powers. In many cases, the pluralism of religions and beliefs do not know about geographical boundaries and these kinds of violations of the right can be very harmful for believers. 6.5 Disseminating Materials, Teaching and Missionary Activities The Declaration 1981 states the right to “d) write, issue and disseminate relevant publications in these areas” and “e) teach a religion or belief in places suitable for these purposes.” The General Comment choose to note that this part of the freedom includes the right to “establish seminaries or religious schools” as well as “prepare and distribute religious texts or publications.” The Special Rapporteur clarifies one aspect of teaching as well as of disseminating materials with “including missionary activity.” The EU Guidelines adds an additional condition namely, that it should be peaceful through “right to peacefully share one’s religion or belief with others.” Discussions are ongoing on reaching out to numerically small isolated indigenous peoples. Even if the right includes the conversion of others non-coercively, in some states there is a discussion about the right to convert as such and proselytising. 6.6 Children and Parents The Special Rapporteur includes “the right of parents to ensure the religious and moral education of their children.” This is not included in the list of the Declaration 1981 but of such importance that it has been given a specific Article 5. The parents or the legal guardians “have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up” (5:1). The child “shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents … the best interests of the child being the guiding principle” (5:2). It is also possible to read out a limitation since the child “shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of other” (5:3). In the EU guidelines, the perspective completely changes to also include a clear child-oriented perspective when noting “the right of children to learn about the faith/belief of their parents, and the right of parents to teach their children in the tenets of their religion or belief.” The expressions “best interest of the child” brings to mind the Convention on the Rights of the Child where the best interest of the child is one of the bearing principles. Article 14 give “the right of the child to freedom of thought, conscience and religion” (14:1) and to the parents/legal guardians “to provide direction to the child in the exercise of his or her right in a manner consistent

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with the evolving capacities of the child” (14:2). It is thus about satisfying both parents’ right to the spiritual upbringing of the child and the child’s right to religious freedom consistent with its evolving capacities. 6.7 Religious Leaders and Communication The Declaration 1981 includes the right to: “g) train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief.” The General Comment uses an explanation “freedom to choose their religious leaders, priests and teachers” while the Special Rapporteur, in short, establishes “appointing clergy.” This aspect of the freedom relates to the ICCPR concepts “practice” and “teaching.” This means that direct state restriction or interference against the will of the faithful are a violation against a religious community that wishes to appoint areligious leader. But important is also the right to train people for leadership. Also, the Declaration 1981 talks about communication and the right to “i) establish and maintain communications with individuals and communities in matters of religion or belief at the national and international levels” with more or less the same formulation by the Special Rapporteur. 7

Vulnerable Groups and Intersectional Violations

Violations of freedom of religion or belief need to be viewed from an intersectional perspective where different power structures and grounds for ­discrimination affect and sometimes reinforce each other. Bielefeldt, Ghanea, and Wiener deal with vulnerable groups like women, persons deprived of their liberty, refugees, asylum seekers, and internally displaced persons, children, minorities and migrant workers.47 Belonging to a minority religion may cause violations but being female and belonging to the minority may cause experiencing more violations from the majority but also from inside the minority group. The combination minority, female and disabled or migrant worker may give another set of severe v­ iolations and so on. Some of the vulnerable groups have got special conventions for protection. The Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities do not have specific articles on religion or belief. The Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families guarantee the right to 47

Bielefeldt, Ghanea, and Wiener. Freedom of Religion or Belief, part 3.

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freedom of thought, conscience and religion in Article 12. Already in 1951, the Convention relating to the Status of Refugees stated in Article 4 that the state “shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children.” 8

Human Rights, Universality and Particularistic Claims

Freedom of religion or belief overlap partly and thus intersects with other rights as e.g. freedoms of assembly, freedoms of association, freedoms of movement, freedoms of expression and minority rights. This may in particular states cause controversies on how to relate the different rights. One of the important challenges for freedom of religion or belief comes from within established religions and communities that argue that their tradition, culture, practice of religion is crucial even if they go against freedom of religion or belief as expressed through the human rights. Examples are freedoms of expression, the rights of the child and of women, the right to change religion, proselytism, the protection of animals, gender issues and sexual orientation. The core of the international system of religion and freedom or belief states that the fundamental implications of the right are universal. To talk about a human right as universal is made in the light of the equality of all human beings. The UDHR provides a starting point in Article 1: “All human beings are born free and equal in dignity and rights.” As Nazila Ghanea and editors state: “It constitutes a universal call to respect particular world views and requires particular faith to endorse universal religious freedom.”48 The Vienna Declaration and Programme of Action from 1993 has become a guiding principle on how to look upon the multitude of different human rights in relation to each other. All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.49

48 49

The Editors, with Nazila Ghanea, “Introduction,” in Tore Lindholm, W.Cole Durham Jr., and Bahia Tahzib-Lie (eds.) Facilitating Freedom of Religion or Belief: A Deskbook. Leiden: Martinus Nijhoff, 2004. “Vienna Declaration and Programme of Action,” OHCHR, accessed December 20, 2021, https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx.

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Taking freedom of religion or belief seriously as a universal human right is made in the light of the equality of all human beings because of being human. As the UDHR states in Article 1: All human beings are born free and equal in dignity and rights. Bibliography Books

Bielefeldt, Heiner, and Michael Wiener. Religious Freedom Under Scrutiny. P ­ hiladelphia: University of Pennsylvania Press, 2020. Bielefeldt, Heiner, Nazila Ghanea, and Michael Wiener (eds.). Freedom of Religion or Belief: An International Law Commentary. Oxford, UK: Oxford University Press, 2016. Lerner, Natan. Religion, Beliefs, and International Human Rights. New York: Orbis Books, 2000. Lindholm, Tore, W. Cole Durham Jr., and Bahia Tahzib-Lie (eds.). Facilitating Freedom of Religion or Belief: A Deskbook. Leiden: Martinus Nijhoff, 2004. Tahzib, Bahiyyih G. Freedom of Religion or Belief. Ensuring Effective International Legal Protection. The Hague: Martinus Nijhoff Publishers, 1996. What Freedom of Religion Involves and when it Can Be Limited. Bromma: Swedish ­Mission Council, 2012. Wigorts Yngvesson, Susanne. Frihet till samvete. Stockholm: Timbro, 2016.



Book Chapters

The Editors, with Nazila Ghanea. “Introduction.” In Facilitating Freedom of Religion or Belief: A Deskbook edited by Tore Lindholm, W. Cole Durham Jr. and Bahia TahzibLie, xxvii–xlivi. Leiden: Martinus Nijhoff, 2004. Lerner, Natan. “The Nature and Minimum Standards for Freedom of Religion or Belief.” In Facilitating Freedom of Religion or Belief: A Deskbook edited by Tore Lindholm, W. Cole Durham Jr. and Bahia Tahzib-Lie, 63–83. Leiden: Martinus Nijhoff, 2004. Manfred Nowak and Tanja Vospernik, “Premissible Restrictions on Freedom of Religion or Belief.” In Facilitating Freedom of Religion or Belief: A Deskbook edited by Tore Lindholm, W. Cole Durham Jr. and Bahia Tahzib-Lie, 147–172. Leiden: Martinus Nijhoff, 2004. Swidler, Leonard, “Human Rights and Religious Liberty – From the Past to the Future,” in Religious Liberty and Human Rights in Nations and in Religions, edited by Leonard Swidler, vii–xvi. Philadelphia: Ecumenical Press, 1986.

Cases

Cha’are Shalom ve Tedek v France (Application no. 27417/95), ECHR June 27, 2000.

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Case of Mouvement Raëlien Suisse v Switzerland (Application no. 16354/06), ECHR July 13, 2012. Case of Campbell and Cosans v The United Kingdom (Application no. 7511/76; 7743/76), ECHR February, 25 1982.



Legal Instruments



Website Content

African Charter on Human and Peoples’ Rights, 1981. A/HRC/2/3, 2006. American Convention on Human Rights, 1969. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981. European Convention on Human Rights, 1950. General Comment No. 22, 1993. General Comment No. 34, 2011. International Covenant on Civil and Political Rights, 1966. Universal Declaration of Human Rights, 1948. Vienna Declaration and Programme of Action, 1993.

Council of Europe, “Margin of Appreciation,” https://www.coe.int/t/dghl/cooperation /lisbonnetwork/themis/echr/paper2_en.asp (accessed October 10, 2021). Council of the European Union, “EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief,” https://www.consilium.europa.eu/uedocs/cms_data /docs/pressdata/EN/foraff/137585.pdf (accessed October 10, 2021). OHCHR, “Special Rapporteur on freedom of religion or belief,” https://www.ohchr.org /en/issues/freedomreligion/pages/freedomreligionindex.aspx (accessed October 10, 2021). OSCE, “Freedom of Religion or Belief,” https://www.osce.org/odihr/freedom-of-religion -or-belief (accessed October 10, 2021). Special Rapporteur on freedom of religion or belief, “Rapporteur’s Digest on ­Freedom of Religion or Belief,” https://www.ohchr.org/documents/issues/religion /rapporteursdigestfreedomreligionbelief.pdf (accessed October 10, 2021). Unites Nations, “Fact Sheet No.23, Harmful Traditional Practices Affecting the Health of Women and Children,” https://www.un.org/ruleoflaw/files/FactSheet23en.pdf (accessed December 11, 2021).

Chapter 6

Pluralism, Pastafarianism and the Scope of the Freedom of Religion Paul Cliteur and Carla M. Zoethout 1 Introduction Religion as a societal phenomenon is protected by international declarations and treaties, by national constitutions, and by the case-law of international and national courts. In 1948, the United Nations launched the Universal ­Declaration of Human Rights, which states in Article 18: Everyone has the right to freedom of thought, conscience and r­ eligion; this right includes freedom to change his religion or belief, and f­ reedom, either alone or in community with others and in public or private, to ­manifest his religion or belief in teaching, practice, worship and ­observance. The 1948 Declaration, at that moment only a statement of intentions, was later enshrined in legally binding documents. At the regional level, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), better known as the European Convention on Human Rights, was adopted. The Convention is common framework for the freedom of religion for the Member States to the Council of Europe, with the European Court of Human Rights in Strasbourg as its final arbiter.1 Furthermore, at the UN level,

1 The Council of Europe was founded in 1949 to uphold human rights, democracy and the rule of law in Europe. One year later it adopted the European Convention on Human Rights. Starting with 10 western European countries, it now comprises practically the whole of the European continent – 47 countries (27 of which are Member States to the European Union) including Russia and Turkey, except for Belarus and Vatican City. On May 16, 2022, the Committee of Ministers of the Council of Europe adopted a resolution regarding the cessation of the membership of the Russian Federation to the Council of Europe. Per September 2022, the Russian Federation is no longer Member State to the ECHR: Resolution CM/Res(2022)2 on the cessation of the membership of the Russian Federation to the Council of Europe, https:// search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680a5da51. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_007

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the legally binding International Covenant on Civil and Political Rights came into existence in 1966. The European Convention on Human Rights (ECHR) expresses a more or less similar provision. Article 9 ECHR has two sections, one about the actual freedom, the second containing a limitations clause. The first section states: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and ­observance. Two observations regarding this provision will serve as a starting-point for the following reflections. First, a comment on the word ‘religion’. Just like ‘thought’, and ‘conscience,’ ‘religion’ enjoys special protection under the European Convention. Within the framework of this chapter, it is therefore important to determine the scope of ‘religion’ and the ‘freedom of religion’. A second crucial observation is that the Universal Declaration and the European Convention recognise both the freedom of religion for citizens, and the freedom to change one’s religion and thereby distance oneself from a particular religion. Put differently, this indicates that Article 9 ECHR and Article 18 UDHR include not only the freedom of (thought, conscience and) religion, but also the freedom of apostasy. Moreover, the Articles seem to offer protection to all kinds of beliefs and world views such as ‘agnosticism,’ ‘secularism,’ or even ‘atheism’. In what follows we will try to test the latter hypothesis by focusing on one specific movement that presents itself as a religion, but that is at the same time regarded as being critical of religion: the Church of the Flying Spaghetti Monster or pastafarianism.2 Pastafarianism is considered a new religion.3 Some scholars use the term ‘NUWS’ religions, meaning ‘new, unknown, weird or small’.4 Other commentators emphasise the secular orientation of the pastafarians. Bullivant and Lois in A Dictionary of Atheism (2016) characterise 2 Bobby Henderson, The Gospel of the Flying Spaghetti Monster (New York: Villard Books, 2006); The Loose Canon: A Really Important Collection of Words. 3 See on new religions in general: Carole M. Cusack, Invented Religions. Imagination, Fiction and Faith (Surrey: Ashgate, 2010); Carole M. Cusack, and Alex Noman, eds., Handbook of New Religions and Cultural Production (Leiden: Brill, 2012). 4 Derk Venema,“Piety or ulterior motive”, in: Carolus Grütters and Dario Dzananovic, eds., Migration and Religious Freedom: Essays on the interaction between religious duty and migration law (Nijmegen: Wolf Legal Publishers, 2018) 227–249, 227.

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pastafarianism as a ‘non-theist movement (especially online)’. It is ‘often invoked with mock sincerity and reverence as a reductio ad absurdum of unfalsifiable theistic claims. The ‘FSM’ has spawned a parody religion, the Church of the Flying Spaghetti Monster, with followers known as ‘pastafarians’. Pastafarianism has occasionally featured in free speech and religious rights cases, where it has been argued (often successfully) to be a bona fide religion, as legitimate as any other, and thus entitled to the same privileges and exemptions as other religious groups.’5 In December 2021, a case concerning pastafarianism was brought before the European Court of Human Rights (ECtHR) in Strasbourg: De Wilde v. the N ­ etherlands.6 The claimant in this case criticised the refusal by the Dutch administrative court, to recognise the Church of the Flying Spaghetti Monster or pastafarianism, as a religion. Subsequently, the European Court in Strasbourg declared the case inadmissible, as it considered the claim not to fall within the scope of Article 9 ECHR. Thus, it was dismissed in the initial stage before the Court; the case was not decided on the merits and the procedure ended in an early stage. In this chapter, we present a critical reflection on the freedom of religion, following the latter case on pastafarianism in Dutch case-law, which was supported by the European Court. This critical reflection results in a number of observations about the scope of the freedom of religion as it is laid down in the Convention and interpreted by the ECtHR. Obviously, the recognition (or not) of pastafarianism as a religion that is protected by Art. 9 ECHR, raises more general questions about the concept of religion and the freedom of religion. These questions are pertinent for all kinds of other religions, belief systems, and non-religious worldviews. Does the European Court use a more or less official definition of religion? If so, what is that definition? Does the Court use criteria that exclude specific systems of ideas from the freedom religion? And if these are not considered religions, do these systems of ideas find protection under Art. 9 ECHR in some other way? As will appear the following sections, the scope of the freedom of religion as protected in the European Convention is extensive: it also encompasses the freedom of thought and conscience; the freedom to change one’s religion and 5 “Pastafarianism”, in: Stephen Bullivant and Lois Lee, A Dictionary of Atheism (Oxford, New York: Oxford University Press, 2016). See also: Carla. M. Zoethout, “How to Deal with Religion in the Increasingly Pluralistic European Societies? The European Court of Human Rights on Crucifixes, Face-covering Veils and Disparaging Muhammad”, in: Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (New York, Oxford: Hart Publishing, 2020): 107–124, here 114–116. 6 Case of De Wilde v. the Netherlands, 2 December 2021, No. 9476/19.

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the right to apostasy. Moreover, under the Convention system states are obliged to guarantee equal treatment of religions and belief systems. In that light, it will be argued that the case of the pastafarians has not been done justice; a viewpoint that transcends this particular movement and has more far-­reaching consequences. But let us first explain the Dutch case about ­pastafarianism, as an introduction to the European Court’s disputable approach of religion. 2

Pastafarianism as Interpreted by the Authorities in the Netherlands

2.1 Administrative Proceedings: Identity Photograph and Religious or Philosophical Exceptions The applicant in De Wilde v. the Netherlands (2021) is Ms. Hermina Geertruida de Wilde (born 1985). She was assisted by university lecturer dr. D. Venema, a legal historian and legal philosopher currently associated with the Open ­University, the Netherlands.7 The applicant considers herself a “pastafarian”. This means that, as a follower of the Church of the Flying Spaghetti Monster, she has the religious duty to wear a colander on her head. This colander is commonly used to pour off the spaghetti. The followers of the church named after the Flying Spaghetti Monster consider wearing the colander a vital symbol that belongs to their religion.8 When she applied for a new driving license and identity card, the complainant came into conflict with the Dutch municipalities. The point was that for these official documents to be valid, a passport photograph is required. For purposes of identification, the Dutch law requires that the head be uncovered on the identity photograph. However, an exception is made for religious believers. For example, wearing a headscarf on a passport photograph is allowed. That raised the question as to why the colander is not accepted. Does this amount to discrimination against a particular group of believers, the pastafarians, and does this imply discrimination based on religion? With this issue the Dutch authorities were facing a precarious problem. Based on international and national laws, states are supposed to acknowledge and recognise religions on an equal basis. In other words, a state may not ­practice discrimination based on faith. Thus, the question which positions are presented and experienced by believers as “religious”, becomes a matter for the state: governments will have to decide which religions are protected by the 7 Venema, “Piety or ulterior motive”, 227–249. 8 De Wilde v. the Netherlands, para. 3.

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right to religious freedom and which not. In the present case, the Dutch government took the position that pastafarianism cannot be considered a religion and, accordingly, that the Church of the Flying Spaghetti Monster cannot be considered a church. The authority (Mayor of Nijmegen) in charge of implementing the Passport Implementation Regulations, told the applicant the following: The ‘Church of the Flying Spaghetti Monster’ is not a church or ­philosophical conviction. There is no appearance of activities of this organisation that can be considered either the exercise or manifestation of a coherent philosophy or conviction of life that permeates [a person’s] entire outlook on life, is connected to [that person’s] moral conscience and according to which [that person] organises his or her life, nor as directed towards any religious experience. It appears from documents of the [‘Church of the Flying Spaghetti Monster’] that it is not considered generally necessary for members of the church constantly to wear a colander. Several well-known members of this organization do not wear a colander on their heads in civil life. This organization manifestly intends to be critical of religion in ­contemporary society. It seeks to express this criticism by making a caricature of religion. In particular, it has made it its aim to seek recognition of this caricature, so that it can enjoy the constitutional protection attending freedom of thought or religious conviction. The expression of social opinions or criticism should however be categorised as freedom of expression (Article 7 of the Constitution) rather than freedom of religion (Article 6 of the Constitution). For that reason, your argument based on Rule 28(3) of the Passport Implementation Regulations fails”. (De Wilde v. the Netherlands, para. 5) In this justification for rejecting the claim to recognise pastafarianism as a ­religion, several elements can be distinguished. Firstly, not only is pastafarianism denied the status of a religion, but it is also not regarded as a “philosophical belief”. The reason given for this is that pastafarianism cannot, or at least cannot sufficiently, be seen as a coherent philosophy or conviction of life that permeates, as it were, the “entire outlook on life.” Secondly, pastafarianism does not seem to be a religion itself, but rather a movement or view that is critical of religion. This criticism manifests itself in a satirical way that makes a “caricature of religion”. In a further explanation, the Dutch authorities held that pastafarianism should be interpreted as

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a parody of religion,9 more specifically stating that “a parody intended to call into ­question the position of religion in contemporary society.” As the justification for denying pastafarianism the status of “religion,” the Dutch government invoked the case by the ECtHR of Eweida and Others v. the United Kingdom (2013). Pastafarianism, it was argued, did not meet the criteria for a religion used in that case.10 Thirdly, the government agency questions the necessity of wearing the colander. Indeed, one infers this from the fact that some adherents of the church do not wear this headgear. Finally, the authenticity of the faith is questioned, as pastafarianism wants its satirical criticism of religion to be recognised as a religion to enjoy the ­constitutional protection given to religious beliefs. Based on these arguments for rejecting the status of religion to pastafarianism, the Mayor refused the appellant’s claim; she could not invoke the religious exception clause. 2.2 The Case before the Dutch Council of State The Dutch legal procedure finally ended up before the Administrative ­Jurisdiction Division of the Council of State. Here, the appellant argued that, contrary to what the lower courts had been willing to acknowledge, pastafarianism should indeed be considered a religion. After all, it was a religious system, namely: “a coherent and serious religious system that propagated an attitude of friendliness, non-violence, tolerance, sobriety, modesty and relativism” (case of De Wilde, para. 16). The applicant also pointed out that the lower authorities had failed to recognise the discriminatory element in their treatment of pastafarianism. Indeed, the movement was subjected to requirements that were not imposed on other religions. “The wearing of a colander had no more objective basis in holy writ than did the wearing of the Islamic headscarf or the Sikh turban” (De Wilde, para. 18). The Administrative Jurisdiction Division of the Council of State takes the position that to be considered a “religion” or “belief” in the sense of Art. 9 ECHR, these views “must have obtained a certain level of cogency, seriousness, cohesion and importance” (para. 8). The latter criteria are derived from previous judgments by the European Court of Human Rights.11 In the light of these criteria for religion, pastafarianism does not stand the test, according to the Council of State (De Wilde, para. 18). 9 De Wilde v. the Netherlands, para. 7. 10 Idem. 11 Campbell and Cosans v. the United Kingdom, 25 February 1982, para. 36, Series A no. 48; Eweida and Others, Judgments of 15 January 2013, para. 81, and S.A.S. v. France, 1 July 2014, para. 55.

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2.3 The Arbitrary Character of the Definition of Religion as Applied in the Pastafarian-Case How the Dutch authorities that ruled on the case and how the European Court in Strasbourg could have taken the partial definition of religion as the s­ tarting point of their judgment is somewhat of a mystery. The “coherence requirements” (cogency, seriousness, cohesion, and importance) as formulated in a previous case by the European Court, hardly play a role in the long history of reflection on the question of what can be regarded as a religion.12 From Antiquity (Cicero) to the Middle Ages (Thomas von Aquino) to the Enlightenment thinkers (Rousseau, Hume, Kant), to the 20th century in disciplines as theology (Barth), psychology (Freud) and sociology (Geertz), different views on what religion is have found expression. Within the framework of this ­chapter, it would go too far to discuss even a representative portion of these views. ­Nevertheless, it is vital to make two observations on this topic. First, the criteria used by the Dutch authorities, the Dutch Council of State, and the European Court to exclude certain ways of thinking from religion, play little or no role in the literature as mentioned here. A second observation is that this is most noticeable when it comes to modern and contemporary views on religion. The authorities use definitions of religion (or partial definitions) that are no longer up-to-date.13 The four characteristics of cogency, seriousness, cohesion, and importance seem to connect to a common-sense view of religion, but not to the scholarly literature on the subject. That said, the consequences of the Court’s characteristics of “religion” are extensive, so there is every reason to question this approach. Is it indeed justifiable on the basis of these criteria to deny some ideological positions the status of religion? In particular, those ­religious positions with minority status in defence of the religions that are dominant, the official religions, the state religions? 3 The Widening Interpretation of the Freedom of Thought, Conscience and Religion 3.1 Elements of the Freedom of Religion There is yet another crucial issue besides the question of what constitutes a proper definition of “religion.” This has to do with the way in which religious 12

13

See the definitions of religion referred to and discussed in: Alston, William P., “­Religion”, in: Paul Edwards, ed., The Encyclopedia of Philosophy (New York, London: Macmillan & The Free Press, 1967): 140–145. An anthology with the views of great thinkers on the essence of religion, Schlieter, Jens, Was ist Religion? Texte von Cicero bis Luhmann (­Ditzingen: ­Reclam, 2018). See: Jens Schlieter, Was ist Religion? Texte von Cicero bis Luhmann, 144–147; 199–202.

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freedom has been formulated in the post-war period. For reasons of clarification, the provisions in the two international documents are repeated here. The Universal Declaration of Human Rights (1948) states in Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (emphasis added) The European Convention on Human Rights includes a largely similar ­provision in Article 9 which says: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance. (emphasis added, CZ) On close reading, four components can be distinguished in these Articles. Universality of the freedom. First, there is the universal proclamation of freedom of thought, conscience, and religion. The word “everyone” indicates that this freedom belongs to every human being.14 One might call this the “universality principle”: human rights apply to everyone, regardless of race, culture, nationality, or gender. A composite of overlapping freedoms. Second, it is noteworthy that this ­freedom can be seen as a composite of three freedoms that overlap. For example, the first is freedom of thought. The second, the freedom of conscience. The third is freedom of religion. Together, these three are enumerated as the freedom of thought, conscience, and religion. Apparently, the idea is that ­conscience and religion are related matters. Change of faith and apostasy. A third point that is striking about the wording of the freedom of thought, conscience, and religion in both provisions is that it explicitly refers to a freedom to change one’s thought, conscience, and religion. This is remarkable, particularly regarding the last component, religion; regarding the freedom of thought, it is not. Indeed, that it is considered part of the freedom of thought that one can change one’s mind is self-evident. It is too 14

As far as the ECHR is concerned, it should be read as ‘everyone’ within the jurisdiction of the 47 Member States to the Council of Europe.

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trivial to emphasise separately. Thinking is always in motion. Mutatis mutandis, the same can be said of conscience. But the fact that it is also ­stipulated in Art. 9 ECHR that everyone has the freedom to change one’s religion is far from trivial. Religions, or indeed almost all religions, throughout history, have fiercely opposed individuals or groups who changed their beliefs.15 The sanctions imposed on changing one’s belief vary from religion to religion, but to say that it is obvious that one can change one’s faith is a far too optimistic state of affairs. The drafters of the Universal Declaration of Human Rights realised this. For that reason, they included a clause in the Declaration that could be referred to as the “apostasy clause”: an explicit formulation that one can change one’s religion and that one can also abandon it.16 We will return to this point. Freedom to manifest one’s religion. A fourth element that one can identify in the wording of the freedom of thought, conscience, and religion, enshrined in art. 9 ECHR is that the Article also indicates that one does not have to keep his thoughts or religion to oneself. Or, put differently: religion must be allowed to manifest itself. This can be done by the believer being allowed to say which religion he prefers, but also in other ways; the believer must be able to manifest his religion. The believer may also teach that religion, or may demonstrate, through ritual acts, to be drawn to another beliefs. The pastafarians do that by putting a colander on their heads. The Jehovah’s witnesses do so by going from door to door to testify their faith.17 While this element (proselytising) is a prominent part of Art. 9, it is not uncontroversial, as will be apparent from the Kokkinakis case, which will be discussed in more detail, below.

15

16

17

Haim H. Cohn, “The Law of Religious Dissidents: A Comparative Historical Survey”, in: Israel Law Review, 34 (2000) 39–100; Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred from Moses to Salman Rushdie (Chapel Hill and London: The University of North Carolina Press, 1993); Paul Marshall and Nina Shea, Silenced: How Apostasy and Blasphemy Codes are Choking Freedom Worldwide (Oxford: Oxford University Press, 2011); Paul Cliteur and Tom Herrenberg, eds., The Fall and Rise of Blasphemy Law, with  a ­foreword by Flemming Rose (Leiden: Leiden University Press, 2016); B.M. van Schaik, Defaming the Freedom of Religion or Belief, PhD Thesis (Leiden University, Leiden 2022). Willy Laes, Mensenrechten in de Verenigde Naties: een verhaal over manipulatie, censuur en hypocrisie (Human rights in the United Nations: A Story about Manipulation, C ­ ensorship and Hypocrisy) (Antwerpen-Apeldoorn: Garant, 2011); Mirjam van Schaik, “Realizing the Freedom of Religion and Belief Equally: The Case of Blasphemy in the L­ iberal ­Democratic State”, in: Jasper Doomen and Mirjam van Schaik, eds., Religious Ideas in L­ iberal D ­ emocratic States (Lanham: Rowman & Littlefield, 2021) 133–159. George D. Chryssides, Historical Dictionary of Jehovah’s Witnesses (Lanham: The ­Scarecrow Press, Inc., 2008).

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3.2 Change of Belief and Apostacy So far, we have distinguished four central elements of Art. 9 ECHR. The ECHR establishes a system of overlapping rights (freedom of thought, conscience, and religion) to which a universal significance is attributed. A right to change and apostatise from religion is included. What has, unfortunately, received scant attention in the treatment of the case of the pastafarians in De Wilde v. the Netherlands is the “apostasy clause”. Unfortunately, because this is highly important. The criminalisation of a change of religion or belief (and thus apostasy from the perspective of the religion being abandoned) soon became commonplace in Christianity after the official acceptance of Christianity as the state religion. And in Islam, it was no different. Israeli scholar, judge, and politician Haim H. Cohn points out the similarities between the three monotheistic religions on this point. He states: The three great monotheistic religions, Judaism, Christianity, and Islam – the subject matter of this survey – have several distinctive marks in common: they postulate the belief in and worship of God; they each have holy scriptures and other canonical texts and vest authoritative interpretations or applications thereof with binding force; each designates a class of officials or functionaries to preserve and propagate the faith; each seeks to imbue its religious, ethical and legal norms into the daily lives of individuals and communities; and none suffers dissidents from within.18 3.3 The Freedom “To Change His Belief” Yet another pertinent question regarding Article 9 ECHR is: how to interpret the addition in this Article about the freedom to change “his religion”? This is what was referred to as the “apostasy clause.” Applied to pastafarianism, one may wonder whether this movement can perhaps be considered a manifestation of religious apostasy? In that case, pastafarianism, despite the dismissive attitude of the Dutch judicial authorities and the European Court in Strasbourg, should still be protected by Art. 9, section 1 ECHR. It would not so much be identified as a religious position, but rather as a manifestation of criticism of religion, a move away from religion.19

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Haim H. Cohn, “The Law of Religious Dissidents: A Comparative Historical Survey”, in: Israel Law Review, 34 (2000) 39–100. Michael Weinrich, Religion und Religionskritik, 2. Auflage (Göttingen: Vandenhoeck & Ruprecht, 2012 (2011).

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In itself, the protection of apostasy as a human right, is a fundamental ­ atter and an achievement of post-war legal developments in particular. Folm lowing the work of Haim Cohn, it was already noted that the change of one’s belief, and apostasy, were taboos within all three monotheistic religions. The signing of the Universal Declaration of Human Rights was also delayed for a long time by resistance from the Arab countries to this specific dimension of the freedom of thought, conscience, and religion.20 The fact that it was finally possible to include an explicit reference to the freedom to change one’s religion in the Universal Declaration proved to be of great significance. As a result, it could also be included at the European level. All 47 countries that ratified the ECHR are obliged to guarantee that their citizens have the right to choose a religion and leave a religion or reject religion at all. Based on the legal text, what is the scope of this freedom? The text indicates that implied in the freedom of religion is the “freedom to change his religion or belief.” But does this also mean that the freedom to become an apostate is thereby protected? The freedom to exchange theism for atheism?21 The ECtHR answered this important question in 1993, in Kokkinakis v. Greece.22 The Kokkinakis case is named after the Greek evangelist Minos Kokkinakis (1909–1999). Kokkinakis was a Greek member of the Jehovah’s Witnesses. Kokkinakis acquired a reputation for his repeated clashes with Greece’s ban on proselytism.23 Like the first apostles, Kokkinakis had a modest background. Initially, he was a member of the Greek Orthodox Church, but in 1936 he switched to the Church of the Jehovah’s Witnesses. Kokkinakis thus practised the freedom for which Art. 9 ECHR lays the foundation: the freedom to change one’s faith. As stated above, he came into conflict with the Greek government not because of his apostasy from the Greek Orthodox Church, 20

21 22 23

See on this: Van Schaik, Defaming the Freedom of Religion or Belief, PhD Thesis, Leiden University, Leiden 2022; Schaik, Mirjam van, “Religious Freedom and Blasphemy Law in a Global Context: The Concept of Religious Defamation”, in: Free Inquiry, June/July (2017): 27–32; Mirjam van Schaik, “Realizing the Freedom of Religion and Belief Equally: The Case of Blasphemy in the Liberal Democratic State”, in: Jasper Doomen and Mirjam van Schaik, eds., Religious Ideas in Liberal Democratic States (Lanham: Rowman & Littlefield, 2021) 133–159. Bullivant, “Defining ‘Atheism’”, 11–22; Cliteur, Paul, “The Definition of Atheism”, in: Journal of Religion and Society, Volume 11 (2009) 1–23. Kokkinakis v. Greece (App. 14307/88), 25 May 1993. Mark 16:15: “And he said to them, ‘Go into all the world and proclaim the gospel to the whole creation.’”; Matthew 28:19–20: “Go therefore and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, teaching them to observe all that I have commanded you. And behold, I am with you always, to the end of the age.”

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but because of his intrusive way of evangelising, a form of acting known as proselytising. For now, what is crucial is that in the case of Kokkinakis v. Greece, the ECtHR takes a position on how to interpret the freedom to change one’s faith. Does this also mean the freedom to become an atheist? The ECtHR answers that question affirmatively. Below, the paragraph in which the ECtHR takes a position on this question: As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. (Kokkinakis, para. 31) This is a vital paragraph, to which the European Court of Human Rights f­requently refers. Art. 9 ECHR protects not only the interests and rights of believers who want to change from one religious position to another religious position (e.g., the apostasy from Greek Orthodox to Jehovah’s witness), but also the change from a religious position to a nonreligious position. What is more, the Court even regards this as a precondition for pluralism, which is ‘­indissociable’ from democratic societies. In response to those who tend to understand modernity as ‘pluralising’ rather than as ‘secularising,’ the ­pluralism of today’s societies includes not only religious believers, but also non-­religious positions.24 Returning to the pastafarians – if we were to categorise this movement at all, the most obvious would be to regard the followers of this movement as ­sceptics.25 Pastafarianism in effect exudes a great deal of scepticism about traditional religion and monotheistic religions in particular. But, one may wonder: it is up to the courts at all to set standards for these four positions mentioned above that enjoy protection under Art. 9 ECHR? May a judge, as a 24

25

See about ‘modernity as pluralizing’: Md Jahid Hossain Bhuiyan and Darryn Jensen, “­Introduction: Law and Religion in the Liberal State”, in: Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (New York and Oxford: Hart ­Publishing: 2020) 1–9. Richard H. Popkin, The History of Skepticism: From Savonarola to Bayle (Oxford/New York: Oxford University Press, 2003).

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condition for being protected by Art. 9 ECHR, require that someone be a “true atheist”? A “serious atheist”? Do, in other words, the requirements of “cogency, seriousness, cohesion, and importance” (De Wilde, para. 18) also apply to atheism? That is, atheism that wishes to invoke the protection of Article 9 ECHR? And are the courts here also determining that parody and satire stand in the way of recognising a serious atheist, agnostic or sceptical position? If so, then the pastafarians, with their light-hearted form of religious scepticism, would again fail the test, but so would Pascal,26 Voltaire,27 and Russell.28 Surely that consequence can hardly be acceptable. What is more: it is the role of the judiciary to decide these matters at all? Should not judges refrain from what is considered the forum internum of ­religion (unlike the forum externum)? As Murdoch states: “At its most basic, Article 9 seeks to prevent state indoctrination of individuals by permitting the holding, development, and refinement and ultimately change of personal thought, conscience and religion.”29 In this context, it is pertinent to quote a paragraph from the European Court in the case of Eweida and others v. UK: The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and ­importance (…). Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.30 Again, this points in the direction that courts should have taken a different stance. That is, they should have adopted an attitude of judicial restraint towards the interpretation of “religion” in Article 9, section 1. Subsequently, they could have reviewed whether the conditions for limiting the freedom of religion had been met, under Article 9, section 2. 26 Pascal, The Provincial Letters, 1657, translated with an introduction by A.J. Krailsheimer (Harmondsworth: Penguin Books, 1982 (1967). 27 Voltaire, Dictionnaire Philosophique, Chronologie et préface par René Pomeau (Paris : ­Garnier-Flammarion, 1964 (1764). 28 Russell, Bertrand, “Why I am Not a Christian”, 1927, in: Bertrand Russell, Why I am not a Christian and other essays on religion and related subjects (London: Unwin Paperbacks, 1957) 13–27. 29 Jim Murdoch, “Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Right”, 18. https://www.echr.coe.int/LibraryDocs /Murdoch2012_EN.pdf. 30 Eweida and others v. United Kingdom, para. 81.

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Equal Treatment of Religions

Following the question of the status of the Church of the Flying Spaghetti Monster, two central questions concerning Art. 9 ECHR were discussed. First of all, regarding the question of definition: what is religion? Second, on the question: what exactly does the protection of apostasy mean? To qualify for protection under Art 9 ECHR, apostatic positions need to have “a certain level of cogency, seriousness, cohesion and importance” (De Wilde, para. 18). There is, however, a third question that Art. 9 ECHR raises. A culmination point of our previous reflections; the question of the equal treatment of religions under the ECHR. Equal treatment is a main principle of law. Equal cases should be treated equally. Therefore, the American philosopher Ronald Dworkin called the principle of equality the sovereign virtue of law.31 In those cases where equal cases are not treated equally, we regard this as “discrimination”. And “discrimination” in law should be avoided at all costs. This, of course, is also relevant for judgments on judicial recognition of certain positions that receive special protection as religions do; this is what Art. 9 ECHR is about. Freedom of thought, conscience, and religion grant special protection to religions. Thus, the question becomes relevant whether a religious position is recognised according to the law, that is, in the eyes of the judges. The Church of the Flying Spaghetti Monster was not considered worthy of that status, according to the Dutch courts, and they were joined by the European Court in Strasbourg. Those who consider this approach incorrect will argue that it “discriminates” against the pastafarians compared to other believers. The latter subject was also an important issue in the Kokkinakis case, even though the disadvantage of the Jehovah’s Witnesses proceeded somewhat differently from the b­ urden of the pastafarians in the Netherlands. Minos Kokkinakis was affected by a constitutional ban on proselytising. Article 13, paragraph 2 of the Greek constitution, says: “There shall be freedom to practice any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited (­Kokkinakis, para. 13).32 31 32

Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge etc.: Harvard University Press 2000). A similar provision still exists in the current Greek Constitution, as amended in 2008: Art. 13, 2 says: “All known religions shall be free and their rites of worship shall be performed unhindered and under the protection of the law. The practice of rites of worship is not allowed to offend public order or the good usages. Proselytism is prohibited.”

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Two things stand out in this provision. First: Greece has “known religions”. Even though other countries are also familiar with this institution, it basically amounts to state control over religion. As Judge De Meyer made clear in his concurring opinion in Kokkinakis: proselytism, defined as “zeal in spreading the faith,” cannot be punishable as such. It is a way (legitimate in itself), as De Meyer said, of “manifesting one’s religion.”33 In Greece, the state determines which religions are officially recognised and which are not, whereas in the Netherlands, this recognition only takes place indirectly. In the meantime, it has become apparent to the adherents of the Church of the Flying Spaghetti Monster that they will not receive recognition of their worldview in the Netherlands. There is a second striking element to the Greek constitution. In addition to the institution of “known religions,” the Greek constitution has a second means of excluding unwelcome religions, it seems. It prohibits “proselytism”, that is to say; it bans a behaviour that appears to be at odds with that part of Art. 9 of the ECHR in which it is stated that one may manifest one’s religion. After all: first, everyone has the right to freedom of thought, conscience, and religion. Second, this is presented as a set of three more or less interrelated rights. Third, freedom of religion includes freedom to change one’s religion or belief. Fourth, there is the freedom to manifest one’s religion or belief in worship, teaching, practice, and observance. This fourth part was the matter discussed in Kokkinakis. How to harmonise the prohibition of proselytising with the freedom to manifest one’s religion? What is the difference between proselytising and manifesting one’s faith? The whole issue becomes more critical when one realises that among the “official religions,” Greece assigns a special place to one specific religion, the Greek Orthodox Church. According to the Greek Constitution of 1975, quoted in Kokkinakis para. 13: “The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognizes as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions” (Article 3, Greek Constitution, Kokkinakis, para. 13). Kokkinakis had more success in challenging the religious monopoly of the Greek Orthodox Church than De Wilde had in arguing for the recognition of pastafarianism. Nevertheless, the two views are similar. In the Netherlands and 33

Concurring opinion of judge De Meyer in Kokkinakis v. Greece.

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Greece, stronger protection is given to more common religious positions than to what are considered “sects.” The sociologist of religion Werner Stark points out some of the characteristics of cults where he identifies the differences with the religion of the majority. For example, he argues that state religions, such as the UK and Greece uphold, appeal to the ruling class.34 State religions tend to affirm the status quo. State religions are the religions for people who are satisfied with the world as it is. But cults often question the existing relationships: a sect means religious opposition or an oppositional religion, sects revolt against the relationship between throne and altar. One of the first sects were the Anabaptists. Another sectarian movement is the Quakers. Furthermore, one can think of the Salvation Army. But also, the movement of the Jehovah’s Witnesses can be counted among the sects, known in Germany, as Stark notes, as true scholars of the Bible (“ernste Bibelforscher”). Throughout history, sects have been fiercely opposed by official religions and by the states that have embraced official religions. Cults evoke resentment, anger, irritation, and rarely the ambition to allow the followers of cults to enjoy freedom of thought, conscience, and belief.35 This then finally brings us to a central question regarding the function of human rights. What is the meaning of human rights? Can it not be argued that human rights are intended precisely to protect minority positions? In De Wilde v. the Netherlands, the official state institutions are protected with their orthodox view by denying official recognition of a heterodox view of faith. This is, in fact, the same as what the Greek Orthodox Church was trying to do and which had long been tolerated, despite the obvious human rights violations with which it is associated. But with Kokkinakis, in 1993, the ECtHR thus chose to protect a minority position. 5

Summary and Conclusion

Article 9 of the European Convention on Human Rights expresses the freedom of thought, conscience and religion. The first section concerns the protection of freedom of religion, whereas the second section formulates the conditions for legitimately limiting that freedom. 34

35

“Eine Staatsreligion kann, mit ihrer Heiligung der bestehenden Verhältnisse, insbesondere der bestehenden Eigentums- und Machtverhältnisse, naturgemäß nur an die oberen Klassen appellieren.” Werner Stark, Grundriss der Religionssoziologie (Freiburg: Verlag Rombach, 1974) 36. As Stark puts it: “Sektenreligion und Staatsreligion sind nur einmal Gegensätze die sich nur vereinen lassen wenn die Sekte nicht mehr Sekte und die Staatsreligion nicht mehr Staatsreligion ist.” Stark, ibid., 45.

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This chapter focused on the question whether pastafarianism is protected under the “freedom of thought, conscience, and religion.” The ECtHR accepts the rejection of this claim by the Dutch authorities. However, the Court does not present a definition of religion on the basis of which it justifies this ­rejection. It merely refers to four characteristics of religion on the basis of which pastafarianism is denied the status of religion: “a certain level of cogency, seriousness, cohesion, and importance”. The satirical nature of pastafarianism precludes its recognition as a religion, according to the ECtHR. This approach is vulnerable. All the more so since the ECtHR does not give a comprehensive definition of religion. The Court also seems to ignore a long discussion about the essence of religion, as it has been conducted among philosophers, theologians, religious scholars, and others. That pastafarianism was excluded from the status of religion is all the more debatable, considering the fact that Article 9 ECHR is not specifically intended to protect officially recognised religions. Sects, too, deserve protection and perhaps even more so. After all, human rights are primarily intended to protect minority positions. But while it would have been possible to recognise pastafarianism as a religion, pastafarians have more options to argue their cause, when denied recognition as a religious position. This has to do with the apostasy clause. After all, the specificity of the wording of religious freedom as it took shape after World War II is that critical religious positions are also protected by Art. 9 ECHR. Unfortunately, in De Wilde v. the Netherlands, the apostasy clause has not received the attention it deserves. The founder of pastafarianism, Bobby Henderson, wrote his gospel in 2006,36 at the height of the debate initiated by the New Atheists. The general public usually narrows the movement down to a dogmatic and sometimes allegedly intolerant stance toward the spiritual hopes of believers, but this is unjustified. The new atheism is about much more than atheism in the narrow sense of the word. The books by the atheists Dawkins,37 Hitchens,38 Harris39 and others also deal with the freedom of expression; the legitimacy and necessity of religious criticism; secularism, the relationship of the state to religious diversity; the legitimacy of satire, including satire r­ elating 36 37 38 39

Bobby Henderson, The Gospel of the Flying Spaghetti Monster (New York: Villard, 2006); The Loose Canon: A Really Important Collection of Words. Richard Dawkins, The God Delusion, A new introduction for the 10th anniversary ­edition, preface to the paperback edition, preface to the first edition (London: Transworld ­Publishers, 2016 (2006). Hitchens, Christopher, God is not Great: How Religion Poisons Everything (New York, ­Boston: Twelve, 2007). Harris, Sam, The End of Faith: Religion, Terror, and the Future of Reason (London, The Free Press, 2005 (2004).

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to religious doctrines; and many other issues. It is helpful to consider The Gospel of the Flying Spaghetti Monster in that light too: the religiously critical “gospel” at issue here, should be interpreted as protected by the “freedom to change his religion or belief”, which Art. 9 ECHR presents as equivalent to the protection of religion. Moreover, the Gospel of Henderson as a manifestation of apostasy of religion in the traditional-Christian or traditional-monotheistic sense of the word, exhibits a high degree of “cogency, seriousness, cohesion and importance”. The Dutch authorities who adjudicated the case and the ECtHR, made the mistake of limiting themselves to the question of whether pastafarianism qualifies as a “serious religion.” They should also have considered whether it can be regarded as a “serious renunciation of religion.” Now that the judicial authorities, in De Wilde v. the Netherlands, have taken the position that pastafarianism does not enjoy protection under Art. 9 ECHR, this is regrettable for religious minority positions, as it is for the rights of atheists, agnostics, sceptics, and the unconcerned. One religion, the religion of the majority, is favoured over another as happened in Greece until the Kokkinakis case (1993) put an end to this injustice. Bibliography Alston, William P., “Religion”, in: Paul Edwards, ed., The Encyclopedia of Philosophy (New York, London: Macmillan & The Free Press, 1967), 140–145. Bhuiyan, Md Jahid Hossain, and Jensen, Darryn, “Introduction: Law and Religion in the Liberal State”, in: Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (New York and Oxford: Hart Publishing: 2020), 1–9. Bullivant, Stephen and Lee, Lois, A Dictionary of Atheism (Oxford, New York: Oxford University Press, 2016). Campbell and Cosans v. the United Kingdom, 25 February 1982, Series A no. 48. Chryssides George D., Historical Dictionary of Jehovah’s Witnesses (Lanham: The ­Scarecrow Press, Inc., 2008). Cliteur, Paul, “The Definition of Atheism”, in: Journal of Religion and Society, Volume 11 (2009), 23. Cliteur, Paul, and Herrenberg, Tom, eds., The Fall and Rise of Blasphemy Law, with a foreword by Flemming Rose (Leiden: Leiden University Press, 2016). Cohn, Haim H., “The Law of Religious Dissidents: A Comparative Historical Survey”, in: Israel Law Review, 34 (2000) 39–100. Cusack, Carole M., and Noman, Alex, eds., Handbook of New Religions and Cultural P­ roduction (Leiden: Brill, 2012).

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Cusack, Carole M., Invented Religions. Imagination, Fiction and Faith (Surrey: Ashgate, 2010). Dawkins, Richard, The God Delusion, A new introduction for the 10th anniversary ­edition, preface to the paperback edition, preface to the first edition (London: ­Transworld Publishers, 2016, 2006). De Wilde v. the Netherlands, 2 December 2021, No. 9476/19. Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge etc.: Harvard University Press 2000). Eweida v. UK (App. nos. 48420/10, 59842/10, 51671/10 and 36516/10), 27 05 2013. Harris, Sam, The End of Faith: Religion, Terror, and the Future of Reason (London: The Free Press, 2005, 2004). Henderson, Bobby, The Gospel of the Flying Spaghetti Monster (New York: Villard Books, 2006). Hitchens, Christopher, God is not Great: How Religion Poisons Everything (New York, Boston: Twelve, 2007). Kokkinakis v. Greece (App. 14307/88), 25 May 1993. Laes, Willy Mensenrechten in de Verenigde Naties: een verhaal over manipulatie, censuur en hypocrisie (Human rights in the United Nations: A Story about Manipulation, Censorship and Hypocrisy) (Antwerpen-Apeldoorn: Garant, 2011). Levy, Leonard W., Blasphemy: Verbal Offense against the Sacred from Moses to Salman Rushdie (Chapel Hill and London: The University of North Carolina Press, 1993). Marshall, Paul, and Shea, Nina, Silenced: How Apostasy and Blasphemy Codes are Choking Freedom Worldwide (Oxford: Oxford University Press, 2011). Murdoch, Jim, Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Rights, Council of Europe, Strasbourg 2012. Pascal, The Provincial Letters, 1657, translated with an introduction by A.J. Krailsheimer (Harmondsworth: Penguin Books, 1982, 1967). Popkin, Richard H., The History of Skepticism: From Savonarola to Bayle (Oxford/New York: Oxford University Press, 2003). Russell, Bertrand, “Why I am Not a Christian”, 1927, in: Bertrand Russell, Why I am not a Christian and other essays on religion and related subjects (London: Unwin Paperbacks, 1957), 13–27. S.A.S. v. France, no. 43835/11, 1 July 2014. Schlieter, Jens, Was ist Religion? Texte von Cicero bis Luhmann (Ditzingen: Reclam, 2018). Stark, Werner, Grundriss der Religionssoziologie (Freiburg: Verlag Rombach, 1974). The Loose Canon: A Really Important Collection of Words. Van Schaik, Mirjam, “Realizing the Freedom of Religion and Belief Equally: The Case of Blasphemy in the Liberal Democratic State”, in: Jasper Doomen and Mirjam

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van Schaik, eds., Religious Ideas in Liberal Democratic States (Lanham: Rowman & ­Littlefield, 2021), 133–159. Van Schaik, Mirjam, “Religious Freedom and Blasphemy Law in a Global Context: The Concept of Religious Defamation”, in: Free Inquiry (June/July 2017), 27–32. Van Schaik, Mirjam, “Realizing the Freedom of Religion and Belief Equally: The Case of Blasphemy in the Liberal Democratic State”, in: Jasper Doomen and Mirjam van Schaik, eds., Religious Ideas in Liberal Democratic States (Rowman & Littlefield, ­Lanham 2021), 133–159. Van Schaik, Mirjam, Defaming the Freedom of Religion or Belief, PhD Thesis, Leiden University, Leiden 2022. Venema, Derk, “Piety or ulterior motive”, in: Carolus Grütters and Dario Dzananovic, eds., Migration and Religious Freedom: Essays on the interaction between religious duty and migration law (Nijmegen: Wolf Legal Publishers, 2018), 227–249. Voltaire, Dictionnaire Philosophique, Chronologie et préface par René Pomeau (Paris : Garnier-Flammarion, 1964, 1764). Weinrich, Michael, Religion und Religionskritik, 2. Auflage (Göttingen: Vandenhoeck & Ruprecht, 2012, 2011). Zoethout, Carla. M., “How to Deal with Religion in the Increasingly Pluralistic ­European Societies? The European Court of Human Rights on Crucifixes, Face-covering Veils and Disparaging Muhammad”, in: Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (New York, Oxford: Hart Publishing, 2020), 107–124.

PART 3 Issues in Religious Freedom and Religious Pluralism

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Chapter 7

The Turn to Belief and How the Discourse of Religious Freedom Marginalises Minority Religions in Australia Elenie Poulos 1 Introduction In Australian public debate, ‘freedom of religion’ has been reframed as ‘­freedom of belief’.1 This discursive shift has been driven by the Christian Right and conservative church leaders and taken up and weaponised for the culture wars by anti-immigration, anti-gay conservatives in politics and the media. The turn to ‘belief’ as definitive of ‘religion’ and as the necessary object of protection vis a vis freedom of religion, has served to marginalise the protection needs of people from minority religious groups. It has shifted public debate about religious freedom away from how to better protect people of minority religious groups against prejudice, discrimination, vilification, harassment, and violence, and towards the extent of permissible (state sanctioned) discrimination by (almost exclusively) Christian individuals and groups. The freedom of belief discourse is grounded in perceptions of the dangers posed to religion and religious adherents by aggressive secularism – an ­existential threat that would see religion chased out the public sphere and ‘­traditional’ values and morals cast as relics of a less enlightened past. ­Central to this perceived existential threat are said to be hostile, intolerant and anti-­ Christian gay rights and gender identity activists. They are charged with imposing ‘agendas’ on society that include their own legal enforcement regimes (in the form of biased human rights institutions and anti-­discrimination laws that promote equality rights above religious freedom), values which are already embedded in school curricula and programs, and an oppressive culture of ‘political correctness’.2 1 Elenie Poulos, “The Politics of Belief: The Rise of Religious Freedom in Australia” (Macquarie University, 2020), http://hdl.handle.net/1959.14/1282888. 2 Elenie Poulos, “‘The bell was tolling’: The Framing of Religious Freedom in The Australian Editorials 2015–2019,” Australian Journal of Human Rights 26, no. 3 (2021), https://doi.org/10.1 080/1323238X.2021.1885290. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_008

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The discourse relies on descriptions of the potential or likely threats to believers for expressing their beliefs about so-called moral issues such as ­abortion, euthanasia, marriage, sexuality and gender identity, and to religious institutions and organisations for seeking to act in accordance with those beliefs by, for example, hiring only those whose beliefs and ‘ethos’ are consistent with that of the institution. The discourse casts Christians as a religious minority under threat and assumes that the state’s obligation to uphold and promote freedom of religion (which is conceptualised as ‘belief’ and inherently intertwined with freedom of conscience and freedom of speech) requires the legislation of special protections for these vulnerable believers and ­religious organisations. The ‘freedom of belief’ discourse is often contextualised in broad, generalised statements about the need for improved religious freedom protections for non-Christian religious communities and groups. This ‘diversity’ framing grants the religious freedom lobby3 both moral legitimacy (expressed concern for religious minorities) and legal legitimacy (commitment to international human rights laws) but does little to raise awareness of the need for improved protections for people who are discriminated against because they are M ­ uslim, Jewish or Sikh, for example. It also serves to give cover to political agendas aimed at both undermining the protections for LGBTQ+ people in law and their inclusion in society, and maintaining Christian privilege, including moral power, in an increasingly religiously diverse country. This chapter examines public statements from influential actors within the religious freedom lobby—church leaders, politicians and high-profile media commentators—including lectures, media statements, opinion articles and parliamentary speeches. The texts were selected as exemplars of this discourse to explore how the freedom of belief discourse dominates the public debate about religious freedom and the consequences of this for religious pluralism in Australia. The first section sets the scene of the contemporary politics of religious freedom in Australia, demonstrating how the freedom of belief discourse is being used to progress very particular political agendas. The second section provides a brief background on religion in Australia and how religious freedom is protected in law. The third section presents the findings of the analysis of the statements, and the chapter concludes with the discussion and conclusion. 3 The Australian ‘religious freedom lobby’ includes the Australian Christian Right (conservative church leaders, politicians, public commentators, academics, think tanks and lobby groups, including the Australian Christian Lobby and its associated think tank Freedom for Faith, Christian Schools Australia and FamilyVoice Australia) and (non-religious) hard right politicians, commentators, think tanks and lobby groups.

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A Very Australian Tale

In May 2021, a student in a Sydney public school allegedly stabbed another student in a schoolyard brawl. The wounds were severe enough for the victim to be hospitalised.4 Less than two weeks later, the New South Wales (NSW) Minister for Education, Sarah Mitchell, announced a ban on religious knives in school, which despite a ban on all weapons in schools, had been allowed under a religious exception to the NSW State Summary Offences Act.5 One year earlier, Mark Latham, the only MP of Pauline Hanson’s One Nation Party (One Nation) in the NSW Parliament, had introduced a private Member’s bill – the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020. Latham declared that the purpose of the bill was to ‘extend protections against discrimination beyond existing categories of citizenship and identity in New South Wales to people of religious faith and non‑faith’.6 Despite his widely espoused commitment to religious freedom and concerns voiced by the Sikh community and a number of religious freedom advocates urging a rethink of the ban on religious knives, Latham was silent on the banning of the kirpan in NSW schools. A search of the Factiva database for news stories failed to find any comments by Latham, and despite his prolific tweeting (@RealMarkLatham) and Facebook posting (@MarkLathamsOutsiders), there were no posts during May 2021 about the banning of the kirpan or the religious freedom rights of Sikhs. Latham’s political party, One Nation, is a hard-right, nationalist, anti-­ immigration party with a history of racist and anti-Muslim sentiment.7 It does 4 Laura Chung and Sarah McPhee, “Boy charged after 16-year-old stabbed at school in Sydney’s west,” Sydney Morning Herald 7 May 2021, https://www.smh.com.au/national/nsw/teenager -airlifted-to-hospital-after-school-stabbing-in-sydney-s-west-20210506-p57pj9.html. 5 Christopher Harris and Mitchel Van Homrigh, “Glenwood stabbing: Religious knife ban for NSW schools,” The Daily Telegraph 18 May 2021, https://www.dailytelegraph.com .au/news/nsw/glenwood-stabbing-call-to-close-religious-knife-loophole/news-story/3e52 73c295f6510bf16d43a17c3a3b21. 6 Mark Latham, “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech,” (Parliament of New South Wales: Legislative Council ­Hansard, 13 May 2020), 1. https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult .aspx#/docid/’HANSARD-1820781676-81731. 7 The eponymous leader of Mark Latham’s party, Senator Pauline Hanson, has referred to ­Australia as a Christian country (Kylie Stevens, “’We Are a Christian Country’: Pauline ­Hanson Slams Calls to Scrap Religious Education in Schools Amid Reports Just One in 20 Kids Go to Scripture,” Daily Mail Australia 8 July 2018). She once infamously arrived in the Senate for Question Time wearing a burqa to promote her proposal to ban the burqa in Australia. In 2018, she moved a Senate motion to condemn ‘anti-white racism’ and attacks on western civilisation and to affirm that ‘it’s OK to be white’. The Trump administration had, by then,

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not claim to be a Christian political party, nor is it identified as one, and Latham is not an adherent of any religion. Latham argued in his second reading speech on the bill that ‘the fastest growing form of discrimination in our society is against people of religious faith, especially Christians’.8 He offered a long list of examples of religious discrimination – all cases related to Christians, and most without any supporting evidence, for example, I know of Christians working for the New South Wales Government who say they are scared to admit to their Christianity in the workplace, who feel there is an official policy of inclusion for every letter of the alphabet except… the letters C and H: Christians and heterosexuals.9 His list included two references to discrimination against people of other religious traditions, but only in the broadest terms: ‘We know of university admittance rules that discriminate against people of faith, especially Muslims and Christians’ and ‘…it must be said, we know of other, longer standing discrimination against other religions, against Jews, against Muslims and against some of the relatively new religious communities in Australia.10 Despite this, the speech barely deviated from its focus on the persecution of Christians. He went so far as to declare that, Like me and others in this place, they [newly arrived migrants] resent the way in which activists are trying to undermine Western civilisation by undermining religion, by de-legitimising Christianity. Step by step, this campaign is trying to redefine the Bible as hate speech.11 The core of Latham’s bill is protections for people and organisations allowing them to discriminate on the basis of religious belief in, for example, employment, accommodation and the provision of services, even when those services 8 9 10 11

already declared One Nation a threat to religious freedom (Tom McIlroy, “Trump ­ dministration Lists Pauline Hanson’s One Nation a Threat to Religious Freedom,” Sydney A Morning Herald 16 August 2017). Latham, “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech,” 1. Latham, “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech,” 2. Latham, “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech,” 2. Latham, “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech,” 2. emphasis added.

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are government funded. Australian Lawyers for Human Rights found that the bill ‘would privilege religiously-based discrimination by organisations over the rights of individuals to be free from discrimination… [and] protect not only discriminatory behaviour but any wrong-doing short of criminal behaviour, so long as it could be argued to be religiously-based’.12 The Uniting Church in Australia was one of the few religious groups expressing similar concerns, particularly that the bill would result in a legal priority given to religious freedom over other rights, and Christianity over other religions.13 It is significant to note that less than three months after tabling the religious freedoms bill Latham also tabled the Education Legislation Amendment (Parental Rights) Bill 2020. The aim of this bill was to ban ‘gender fluidity’ from schools and recognise parents’ ‘primacy’ in relation to ‘core values’ as they might be developed in school curricula.14 For Latham, then, like other conservative politicians and high-profile ­commentators, religious freedom has become a useful weapon in Australia’s culture wars. With the focus in public debate set firmly on the extent to which protecting religious freedom might allow for discrimination against LGBTQ+ people, the protection needs of people who experience exclusion, prejudice, harassment, vilification and violence because of their religion have become marginalised in public policy debates. 3 Background 3.1 Religion in Australia The religious profile of Australia has significantly changed over the last few decades. From 1991 to 2016, those identifying as Christian have dropped from 74 percent to just over 52 percent of the population, and those identifying as ‘no religion’ have grown from 12.9 percent to 30.1 percent. A religiously diverse country, 8.2 percent of the population identified with a religious tradition other 12

Australian Lawyers for Human Rights, Submission to the NSW Parliament Joint Select Committe Inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (2020), 4, https://www.parliament.nsw.gov.au/committees/listofcommittees /Pages/committee-details.aspx?pk=267#tab-submissions. 13 Uniting Church in Australia Synod of NSW and ACT, Submission to the NSW Parliament Joint Select Committee Inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (2020), https://www.parliament.nsw.gov.au/committees /listofcommittees/Pages/committee-details.aspx?pk=267#tab-submissions. 14 See https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3776, for the Bill and Explanatory Notes, accessed 8 October 2021.

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than Christianity in the 2016 census.15 As Pepper et al. point out, ‘in international comparison, Australia stands out for having three substantial minority religious communities at or above 2% and two at about 0.5%’ of the population.16 Within each religious group, there exists significant ethnic diversity: Muslims have come from over 60 countries, Catholics have been strengthened by Italian, Dutch, Vietnamese, Philippine and other sources. ­Hinduism, Sikhism, Islam, and Buddhism are all increasingly substantial and vibrant religious communities largely due to recent migration from South and Southeast Asia and, for Muslims, earlier migration from the Middle East.17 Bouma argues that the combination of majority Christianity (with the associated influence of Christianity in the development of Australian social and political life since the 18th century) and increasing religious diversity, has led to ‘much contestation among those who see themselves winning or losing advantage in the shift’.18 Attempts to embed a particular Christian moral code in law (despite the law reflecting a more progressive morality supported by the majority of Australians, including those who identify as religious) are partly reflective of this contest. 3.2 Religious Freedom in Australian Law Australia is the only western democratic country without a comprehensive national bill or charter of rights. Its human rights obligations are captured by a series of anti-discrimination laws at the Commonwealth (federal) level: 15

16 17 18

1991 figures can be found at https://www.ausstats.abs.gov.au/ausstats/free.nsf/0/792 BBD9457634FFECA2574BE00826627/$File/27100_1991_20_Census_Characteristics_of _Australia.pdf, p. 21; 1996 and 2006 figures at https://www.abs.gov.au/ausstats/abs@ .nsf/7d12b0f6763c78caca257061001cc588/6ef598989db79931ca257306000d52b4!Open Document; the 2011 and 2016 figures at https://www.abs.gov.au/ausstats/[email protected] /Lookup/by%20Subject/2071.0~2016~Main%20Features~Religion%20Data%20Sum mary~70, and population figures at https://www.abs.gov.au/AUSSTATS/[email protected]/Details Page/3105.0.65.0012016?OpenDocument. Accessed 4 March 2020. Miriam Pepper, Ruth Powell, and Gary D. Bouma, “Social Cohesion in Australia: ­Comparing Church and Community,” Religions 10, no. 605 (2019): 3, https://doi.org/10.3390 /rel10110605. Pepper, Powell, and Bouma, “Social Cohesion in Australia: Comparing Church and ­Community.” Gary Bouma, “Religious Diversity and Social Policy: An Australian Dilemma,” Australian Journal of Social Issues 47, no. 3 (2012): 283, http://go.galegroup.com/ps/i.do?id=GALE%7 CA334604877&v=2.1&u=macquarie&it=r&p=EAIM&sw=w&asid=d92cfa873ec57964 cfa8befb03e0cba6.

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– Racial Discrimination Act 1975 – Sex Discrimination Act 1984 – Australian Human Rights Commission Act 1986 – Disability Discrimination Act 1992 – Age Discrimination Act 2004 At state and territory level, human rights are protected through various ­charters and bills of rights, and anti-discrimination, anti-vilification and equal opportunity laws. All states and territories have laws prohibiting religious ­discrimination except New South Wales and South Australia. The Australian Constitution includes an anti-establishment clause that limits the powers of the Commonwealth (not the states) to legislate in relation to religion, but it does not provide a positive protection for religious freedom. The Commonwealth protects religious freedom through exemptions or exceptions in anti-discrimination laws that make it lawful for religious organisations to discriminate in certain circumstances and under certain conditions. 3.3 The Failure of the First Religious Discrimination Bill In November 2021, the conservative Coalition19 government led by Scott ­Morrison (the country’s first Pentecostal Prime Minister) introduced into parliament a Religious Discrimination Bill (RDB) to add to the existing suite of laws. The RDB was a promise Morrison made before the 2019 election that had its beginnings as a concession to conservative MP s when marriage equality was legalised in December 2017. It proved too controversial even within the Government’s own ranks, a victim of its origins in a political debate that set religious freedom against the rights of LGBTQ+ people. The RDB included provisions to protect people from discrimination on the basis of religion or no religion. Those provisions had wide support across the political spectrum and within the community and went almost unremarked on in the public debate. The controversy, consistent with that sparked by Mark Latham’s NSW bill (which reflected an early draft of the federal bill), related to provisions (propelled by the Australian Christian Lobby (ACL) and a powerful Christian schools lobby) which sought to protect ‘statements of belief’ to the extent that they may have limited other rights protected in law at federal and state and territory levels. Most at risk and caught in the middle of a toxic public debate, were LGBTQ+ people including students who attend religious schools, but the RDB also had the potential to undermine the right to be free from discrimination based on gender, race, age and even religion itself.

19

The centre right Liberal Party of Australia and the smaller regional and rural based National Party of Australia.

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Despite appeals by the Prime Minister that the RDB was important for ­ eople of religious groups other than Christian, and even that it was important p for ‘multiculturalism’ in Australia,20 it floundered on the issue of religiously motivated discrimination against LGBTQ+ students in religious schools. The Government was forced to withdraw the RDB after failing to convince even some within its own party room that amendments to a religious exception to the Sex Discrimination Act (SDA) designed to protect gay students (but not trans students and not LGBTQ+ teachers) from expulsion were enough to counter public concerns. The shelving of the RDB four months out from an election not only left in place the SDA exceptions for religious schools, but also left members of minority religious groups without substantial protection against d­iscrimination in Commonwealth law. Leaders from the Sikh, Muslim and Jewish communities responded with disappointment and concern while also declaring that students in religious schools should not be discriminated against because of their sexual orientation or gender identity.21 For example, Chair of the western Sydney-based Australian Sikh Association, Ravi Singh, said … transgender students or those with diverse gender i­ dentities or sexualities should not be discriminated against and legislation should protect them … “The main concern we have is being a minority religion and Sikhs being easily identifiable because of their appearance and wearing turbans … they are subject to a lot of harassment and bullying and discrimination.”22 This research explores the discourse of ‘freedom of belief’ in the years leading up to the RDB. The framing of religious freedom through this narrow lens was promulgated by church leaders and weaponised for the culture wars by the Australian Christian Right and conservative politicians and media commentators. Not only did it result in LGBTQ+ people, especially young transgender 20

21

22

Commonwealth Parliament of Australia [Hansard], “House of Representatives Q ­ uestions without Notice, Religious Discrimination Bill 2021, Scott Morrison,” (8 February 2022 (Proof)), https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=cham ber/hansardr/25464/&sid=0000. Natassia Chrysanthos, “‘Essence of the bill is forgotten’: Religious leaders urge government to focus,” Sydney Morning Herald 10 February 2022, https://www.smh.com.au /national/nsw/essence-of-the-bill-is-forgotten-religious-leaders-urge-government-to -focus-20220210-p59vbo.html. Chrysanthos, “‘Essence of the bill is forgotten’: Religious leaders urge government to focus.”

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people, being used as political bargaining chips on the floor of federal parliament, but it left people from minority religious groups without any substantive protections against religious discrimination in federal law. 4

The Freedom of Belief Discourse in Public Debate

This section examines a number of public texts about religious freedom from 2015 to late 2019 (when the second draft of the RDB was released for public comment) from religious leaders, politicians, and high-profile conservative media commentators to better understand how the ‘freedom of belief’ discourse has privileged Christianity and marginalised the voices of people from minority religious groups. A study of Australian government inquiries into religious freedom found that up to 2011, the dominant problematisation of religious freedom was ‘religious diversity’ – the major policy concern centred on the discrimination, harassment, vilification and violence being experienced by people from minority religious groups.23 From 2011, with increasing protections against discrimination being granted to LGBTQ+ people, the major discourse of religious freedom shifted to ‘balancing rights’ – the policy debates centred on how to best balance religious freedom with equality rights.24 During 2015, the discourse of religious freedom in Australia shifted again – this time from ‘balancing rights’ to ‘freedom of belief’.25 With marriage equality firmly on the horizon, the public debate about religious freedom was reframed around the question of how to protect individuals and institutions who opposed same-sex marriage because of their religious beliefs.26 From 2015 to 2019, one of the most politically influential newspapers in the country, the only national general news broadsheet, The Australian, owned by Rupert Murdoch’s News Corp Australia and well-known as a campaigning

23 24 25 26

Elenie Poulos, “Constructing the Problem of Religious Freedom: An Analysis of Australian Government Inquiries into Religious Freedom,” Religions 10, no. 583 (2019), https://doi .org/10.3390/rel10100583. Poulos, “Constructing the Problem of Religious Freedom: An Analysis of Australian ­Government Inquiries into Religious Freedom.” Poulos, “The Politics of Belief: The Rise of Religious Freedom in Australia.” Elenie Poulos, “The Power of Belief: Religious Freedom in Australian Parliamentary Debates on Same-Sex Marriage,” Australian Journal of Political Science 55, no. 1 (2020), https://doi.org/10.1080/10361146.2019.1706719.

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newspaper,27 ran a sustained campaign declaring marriage equality a profound threat to religious freedom.28 Several texts included for analysis were published by The Australian, including some by senior columnists. The two most influential religious leaders in Australia are the men who occupy the roles of Anglican Archbishop of Sydney and the Catholic Archbishop of Sydney. Significant public statements from both have been included in this analysis. In both the Catholic and Anglican churches, the Sydney arch/dioceses are the most theologically conservative. The politicians whose speeches and writings have been selected are Scott Morrison (before and after becoming Prime Minister) and two members of his government who are well known advocates for religious freedom – Dan Tehan MP and Senator Amanda Stoker. The texts were collected from searches of the official websites of religious organisations, parliamentary websites including Hansard, and web searches using Google and the Factiva database using search terms that included: – individual names and titles of: leaders of churches, denominations and ­religious communities; politicians known to speak in public and in the parliament about religious freedom; and media commentators known to write about religious freedom issues; – Australian newspapers; and – the terms ‘religious freedom’ or ‘freedom of religion’ or ‘religious liberty’. The texts have been interrogated for answers to the following questions: – How is religion represented? – What is the threat to religious freedom? – Whose religious freedom needs protecting? – What is being freed?29 In 2015, the Roman Catholic Archbishop of Sydney, Anthony Fisher, gave a lecture for the right-wing think tank, The Centre for Independent Studies. The subtitle was ‘Democracy and the Rights and Limits of Religion and Conscience in Contemporary Australia’ but the lecture was titled ‘Should Bakers be Forced to Bake Cakes for Same Sex Weddings?’, a reference to the well-known case of

27

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Johan Lidberg, “The Distortion of the Australian Public Sphere: Media Ownership ­ oncentration in Australia,” Australian Quarterly 90, no. 1 (2019); Lisa Waller and Kerry C McCallum, “Keystone Media: The Australian and Indigenous Affairs,” Media International Australia 161, no. 1 (2016), https://doi.org/10.1177/1329878X16670816. Poulos, “‘The bell was tolling’: The Framing of Religious Freedom in The Australian ­Editorials 2015–2019.” To borrow from Web Keane, “What Is Religious Freedom Supposed to Free?,” in The ­Politics of Religious Freedom, ed. Winnifred Fallers Sullivan et al. (Chicago: University of Chicago Press, 2015).

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the Oregon bakery that refused to bake a cake for a lesbian wedding.30 Fisher’s lecture begins with an exercise of imagination, taking the audience to 2025, years after marriage equality has been legislated: Christian leaders have been prosecuted and gaoled, religious schools forced to run LGBTQ+ ‘awareness programs’, and church institutions forced to extend spousal benefits to employees in same-sex marriages. It ends with another: this time in 2025, while ‘people with same-sex attraction’ are respected, marriage remains ‘traditionally understood’, ‘faith stills plays a major role in our community’, ‘Australians are proud of their historic “compact” between Church and State, freedom of conscience and the rule of law’ and ‘bakers [are] left to bake good cakes, unencumbered by… dogmatism’.31 Regardless of references to religion in general and ‘Christians and other minorities’,32 Fisher’s lecture is about the threats posed by postmodernism, political correctness, intellectual and other public elites and ‘dogmatic secularists’ to the place of Christianity in the public square.33 The lecture is an ode to a dying Christendom, with marriage equality portended as the final nail in the coffin. Religious adherents are referred to as ‘believers’ whose religious freedom is threatened by same-sex marriage. Legalising samesex marriage will, it is said, have a chilling effect on how believers express and live out their beliefs in the public sphere: Ministers of religion and places of worship may receive niggardly ‘­exemptions’ in such regimes, but ordinary believers and their businesses are given no leeway and even religious institutions such as schools, ­hospitals and welfare agencies are expected to tow the PC line. Some ­Australian civil liberties commentators fear that were same-sex ‘marriage’ legalised here the power of the state would be similarly mobilised against dissenters.34 30 31

32 33 34

See for example, Isaac West, “Wedding Cakes, Equality, and Rhetorics of Religious F­ reedom,” First Amendment Studies 53, no. 1–2 (2019), https://doi.org/10.1080/21689725.20 19.1604246. Anthony Fisher, “Should Bakers be Forced to Bake Cakes for Same Sex Weddings? ­Democracy and the Rights and Limits of Religion and Conscience in Contemporary ­Australia,” CIS Occasional Papers 143 (2015): 18,19, https://www.cis.org.au/app /uploads/2015/11/op143.pdf. Fisher, “Should Bakers be Forced to Bake Cakes for Same Sex Weddings? Democracy and the Rights and Limits of Religion and Conscience in Contemporary Australia,” 8. Fisher, “Should Bakers be Forced to Bake Cakes for Same Sex Weddings? Democracy and the Rights and Limits of Religion and Conscience in Contemporary Australia,” 10, 15–16. Fisher, “Should Bakers be Forced to Bake Cakes for Same Sex Weddings? Democracy and the Rights and Limits of Religion and Conscience in Contemporary Australia,” 14. ­emphasis added. The conservative commentator cited in this reference, Merv Bendle,

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Fisher argues that the religious freedom of those who do not ‘believe’ in ­marriage equality must be protected if a civilised western democracy is to ­survive. In Australia, he says, protecting religious freedom will ensure the ­continued successful cooperation between church and state, the fruitful collaborations in law and policy, in provision of education, health and aged care, and various welfare services, in special religious education in government schools, chaplaincies to state institutions, state funerals etc.35 In 2018, after same-sex marriage became legal in Australia and voluntary assisted dying in Victoria, Fisher again warned of the grave threat to religious freedom: Will people in parishes, church schools and other faith institutions, let alone in the more public square, be free in future to hold, speak and practise their beliefs? … The pressure is on to eradicate Judeo-Christian ideas such as the sanctity of life and love from our laws and customs, to inoculate people to faith or make them embarrassed or secretive about it, and to enforce a kind of practical agnosticism on the whole community.36 Paul Kelly, Editor-at-Large for The Australian, was influential in setting up the battle lines between religious freedom and the advance of LGBTQ+ rights. He began the campaign against marriage equality one month ahead of the Australian government announcing its intention to hold a compulsory plebiscite on same-sex marriage. In July 2015, he wrote, The central issue in any Australian recognition of same-sex marriage remains almost invisible – whether the state’s re-definition of civil marriage will authorise an assault on churches, institutions and individuals who retain their belief in the traditional view of marriage… The legalisation of same-sex marriage means the laws of the state and the laws of

35 36

has written a number of anti-Muslim articles for the right-wing magazine Quadrant, see https://quadrant.org.au/writer/merv-bendle/. Fisher, “Should Bakers be Forced to Bake Cakes for Same Sex Weddings? Democracy and the Rights and Limits of Religion and Conscience in Contemporary Australia,” 17. ­emphasis added. Anthony Fisher, “Religious freedoms threatened by air of militant secularism,” The A ­ ustralian 31 January 2018.

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the church will be in conflict over the meaning of the most important institution in society.37 Kelly soon took up the case of the Roman Catholic Archbishop of Tasmania, Julian Porteous. The Catholic Church in Australia was the subject of a discrimination complaint (later withdrawn) lodged in Tasmania for material included in the booklet ‘Don’t Mess with Marriage’ which Porteous and other bishops had distributed to Catholic schools. Kelly wrote: For Australia and its alleged open spirit of debate, this is an unprecedented situation. It reveals an aggressive secularism dressed in the moral cause of anti-discrimination justice but with a long-run agenda that seeks to transform our values and, ultimately, drive religion into the shadows. The vanguard for this drive is the same-sex marriage campaign… the campaign for same-sex marriage threatens to infringe the rights of the church and religious freedom.38 Kelly is one of a number of senior columnists for The Australian who have ­written about the threat of secularism to religious freedom – always in relation to Christianity and Christian institutions and organisations and set in the context of LGBTQ+ rights. In 2019, Angela Shanahan, for example, wrote about ‘the aggressive secularism that wants to expunge religion from the ­public square’.39 Her case was made by reference to Israel Folau and Julian Porteous. Israel Folau, one of Australia’s star rugby players and a member of an independent conservative and unorthodox Christian congregation, lost his contract for breaching Rugby Australia’s code of conduct after repeatedly posting ­religiously framed condemnations of ‘homosexuals’ (and other sinners) on Twitter. The only non-Christian case of discrimination Shanahan offered was that of a Muslim football player in the UK whose tweet against the treatment of Uyghurs in China led to the Chinese government blocking the broadcast of the next match he was playing in. The only reference to religions other than Christianity was this, in the context of the Porteous case: ‘There was a real danger that one jumped-up tribunal could challenge a fundamental 2000-year-old 37 38 39

Paul Kelly, “The same-sex marriage debate and the right to religious belief,” The Australian 11 July 2015. Paul Kelly, “Threat to religious freedom from same-sex marriage debate,” The Australian 28 November 2015. Angela Shanahan, “In a looking-glass world, some ‘values’ are more prized than others,” The Australian 21 December 2019.

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teaching of the Catholic faith, not to mention the even older Jewish tradition, and Muslim too’.40 In October 2017, in the middle of the national postal survey on same-sex marriage, the Anglican Diocese of Sydney was criticised for contributing $1 million dollars to the ‘No’ campaign. In his letter to church members, the then Anglican Archbishop of Sydney, Dr Glenn N. Davies wrote, ‘The voluntary postal survey has been called a referendum on religious freedom and freedom of speech, and it is very important we all make our voices heard’.41 Two years later, taking up the Folau case, Davies issued a press release in which he extrapolated Folau’s case to the problems besetting all Australian Christians: The clear support of ordinary Christians has been ignored, marginalised and silenced. Many commentators (and many politicians) have failed to understand the precious nature of conscience and belief and its power in the lives of ordinary Australians. Loud, intolerant voices swamp the quiet faith of many. But I pray that what Israel Folau is going through may shine a light on an issue which is vital to our democracy and of crucial importance for Christians – freedom of speech, freedom of worship and freedom to live according to our faith.42 In his final Presidential address, Davies expressed his fear about the ‘forces within our society that seek to marginalise not only the Christian voice, but all faith traditions’. The context for this concern was ‘developments in the life of our nation and our State, particularly in the areas of legislation relating to sex discrimination, religious discrimination and most notably, abortion’. He exalts his audience to keep their voices raised: ‘If we are to be salt and light in our world, then we must not be silent on public issues where they concern the common good and the honour of Christ’.43 He went on to say: We live, however, in a fast moving world where the revisionist agenda of the world is making inroads into the accepted Judeo-Christian norms that 40 41 42 43

Shanahan, “In a looking-glass world, some ‘values’ are more prized than others.” Glenn N. Davies, “Archbishop of Sydney Letter to Churches – Coalition for ­Marriage Campaign Donation,” 2017, https://sydneyanglicans.net/news/archbishops-letter-to-churches /46607. Glenn N. Davies, “Freedom of faith and Israel Folau,” (Sydney Anglicans, 25 June 2019). https://sydneyanglicans.net/news/freedom-of-faith-and-israel-folau. Glenn N. Davies, “Presidential Address – Third Session of the 51st Synod of the Diocese of Sydney,” (Sydney Diocesan Services, 2019), 15. https://www.sds.asn.au/sites/default/files /Presidential%20Address%202019%20%28final%29.pdf?doc_id=NDM4MDc=.

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we have enjoyed in this country since the Europeans arrived. ­Legislation for euthanasia has been passed in Victoria and is under parliamentary discussion in Western Australia. Changes to birth certificates have been legislated in Tasmania. The next issue we need to face is the troubling issue of gender identity.44 Davies and Fisher both, at various points and times, stress the importance of religious freedom as it relates to all religions and none. The freedom of belief discourse that permeates the texts, however, defines the existential threat to religious freedom narrowly as a threat to the expression of beliefs (in word and deed) about gender, marriage, sexual orientation, abortion and voluntary assisted dying. It is not the right to be free from religious discrimination that concerns them, but the freedom to discriminate based on religious belief. Moving amendments to the same-sex marriage bill in 2017, Scott Morrison reinforced the language of threat: after the postal survey on marriage, those who voted against marriage equality ‘have concerns that their broader views and beliefs are also now in the minority and therefore under threat’.45 ­Drawing on his visit to Lebanon for the ordination of Australia’s Maronite bishop, Morrison pointed to the importance of faith and religious community for people living through war. He listed the variety of Christian traditions that have been brought to Australia through migration and the Christian influence on ­Australia’s recent history: ‘Our own nation was founded, built, and undeniably shaped by Christian values, morals and traditions that helped to unite a fledgling country—a nation blessed by and formed on Christian conviction’.46 But it is not just Christianity that is threatened by marriage equality: ‘Whether you raise your hands, bow to your knees, face the Holy City, light incense, light a candle or light the menorah, faith matters in this country—and we cannot allow its grace and peace to be diminished, muffled or again driven from the public square.’47

44 45

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Davies, “Presidential Address – Third Session of the 51st Synod of the Diocese of Sydney,” 18. Commonwealth Parliament of Australia [Hansard], “House of Representatives Parliamentary Debates, Scott Morrison,” (4 December 2017): 12347, https://parlinfo.aph.gov .au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F 72ab0aa3-c3f2-48e1-b365-7e7ac525ceb6%2F0106%22. Commonwealth Parliament of Australia [Hansard], “House of Representatives Parliamentary Debates, Scott Morrison,” 12348. Commonwealth Parliament of Australia [Hansard], “House of Representatives Parliamentary Debates, Scott Morrison,” 12347.

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Religious freedom, Morrison argues, once secure in Australia but now at risk because the law on marriage will be changed, requires the enactment of ­special religious freedom protections: These Australians are looking for acknowledgement and understanding from this parliament and their representatives. They are seeking assurance that changes being made to our marriage laws will not undermine the stability and freedom of their faith and religious expression, what they teach their children, what their children are taught in our schools, and the values they share and foster with their families and community and within and without the walls of their churches. This is a reasonable request that should be supported by members.48 For years, people from minority religious groups had been calling for protections against prejudice and discrimination and religious violence. But it was not until the rights of LGBTQ+ people began to be legislated, that politicians such as Morrison began to address the issue of religious freedom. In 2018, the then Minister for Social Affairs, Dan Tehan delivered a lecture part of which was reproduced in The Australian under the title ‘Let’s protect belief’. Advocating for a religious discrimination act, Tehan described the threat to religious freedom from ‘the forces of political correctness’ citing incidents during the debate on same-sex marriage and the case of Israel Folau. He wrote of the increasing numbers of Australians indicating ‘no religion’ on their census forms, warning of the day when religious Australians ‘will become a minority’. The rise of LGBTQ+ rights, secularism, and the ‘not religious’, were undermining respect for those with religious beliefs, seeking to push religion out of the public space and threatening religious freedom: Where it is needed, we must strongly defend our rights and responsibilities to take part in debates of national significance and to make contributions informed by our beliefs. The Judeo-Christian faiths have been intrinsic to the development of Western civilisation. To deny this ­faith-based perspective is to deny not only our history but also a perspective that has helped create societies with the most freedom, happiness, peace and prosperity in history. We must defend a society that allows people the freedom to thoughtfully and peacefully honour their own faith.49 48 49

Commonwealth Parliament of Australia [Hansard], “House of Representatives Parliamentary Debates, Scott Morrison,” 12349. Dan Tehan, “Let’s protect belief,” The Australian 7 July 2018.

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A few months later, one of Tehan’s colleagues in the Morrison-led conservative Coalition government, Senator Amanda Stoker, also write an opinion piece for The Australian. Titled ‘Secularism would stifle faith if Labor had its way’. Addressing the debate about LGBTQ+ students and teachers in religious schools that emerged after the release of the Government’s draft religious discrimination bill, Stoker began: ‘The hysterical response to the government’s attempts to secure the basic right of faith-based schools to operate according to the tenets of their religion exposes the grave danger facing religious freedom in Australia’.50 Announcing the release of the second draft of the RDB in 2019, the Prime Minister Scott Morrison said, What people believe in this country or don’t believe when it comes to the big questions of life, which is really what religion and faith is all about, is such a personal matter. It is hard to imagine something more personal and in our country, these beliefs and non-beliefs for that matter, are an expression of the liberty to which we all hold dear in countries such as Australia, but especially Australia.51 5

Discussion and Conclusion

Writing about the distinctions between religion and politics and private faith and public action, Arnal and McCutcheon offer a salient reminder that such distinctions are not ‘neutral descriptors of universal states of affairs found in the wild…. These concepts are social devices driven by interests and attended by consequences’.52 The same is true of the concept of religious freedom. Discourses of religious freedom are never neutral. Curtis, for example, writes of the ‘malleable rhetoric’ of religious freedom and the ‘potency’ gained by that

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Amanda Stoker, “Secularism would stifle faith if Labor has its way,” The Australian 13 December 2018, https://www.theaustralian.com.au/commentary/opinion/secularism-would -stifle-faith-if-labor-has-its-way/news-story/0f1ccf41b0a3b501c6b2d5219ebe1992. Scott Morrison and Christian Porter, “Press Conference – Religious Discrimination Act Revised Draft,” news release, 10 December 2019, https://www.pm.gov.au/media /press-conference-sydney-nsw-1. William E. Arnal and Russell T. McCutcheon, ““They Licked the Platter Clean”: On the Codependency of the Religious and the Secular,” in The Sacred Is Profane: The Political Nature of ‘Religion’, ed. William E. Arnal and Russell T. McCutcheon (New York: Oxford University Press, 2013), 126.

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malleability: ‘its ability to be used for different ends makes it a useful currency for a variety of agendas’.53 Sullivan, Hurd, Mahmood and Danchin argue that In the contemporary period, the deployments of religious freedom are multiple and contradictory: at times used to identify the virtuous and condemn the oppressor, at times used on behalf of women and minorities, and at others to serve narrow sectarian interests of missionaries, governments, and religious authorities… promoting a right to religious freedom shapes political and religious possibilities in particular ways, though always differently in different contexts.54 Previous research on the evolving discourses of religious freedom in Australia has shown that the dominant framing of religious freedom since 2015 has been ‘freedom of belief’.55 The texts from influential actors examined in this chapter were selected as exemplars of this discourse to explore how it has been put to work in public debate to achieve particular outcomes in relation to religious freedom and what the consequences are for religious pluralism in Australia. In the freedom of belief discourse as exemplified in these texts, the answers to the questions articulated earlier in the chapter are: – How is religion represented? Religion is conceptualised as belief. Religion is confessional in nature and religious people are those who uphold particular sets of moral and ethical beliefs which are validated by religious institutions and their leaders. – What is the threat to religious freedom? Religious freedom is threatened by aggressive (anti-Christian) secularism, the accrual of rights to LGBTQ+ people, and political correctness. – Whose religious freedom needs protecting? Religious organisations and institutions (mostly Christian) are facing an existential threat and must be protected from discrimination claims. Religious organisations must be free to hire, fire and expel people who do not share their beliefs or who are identified by their beliefs as ‘sinful’. Religious believers who hold to ‘traditional’ positions, especially on marriage, gender and sexuality, must be protected. 53 54 55

Finbarr Curtis, The Production of American Religious Freedom (New York: New York ­ niversity Press, 2016), 168. U Winnifred Fallers Sullivan et al., eds., The Politics of Religious Freedom (Chicago: ­University of Chicago Press, 2015), 5. Poulos, “The Power of Belief: Religious Freedom in Australian Parliamentary Debates on Same-Sex Marriage.”; Poulos, “‘The bell was tolling’: The Framing of Religious Freedom in The Australian Editorials 2015–2019.”

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– What is being freed? Belief itself is being freed. Religious institutions, defined by their beliefs, are set free from moral challenge and from accountability for discriminatory acts and vilifying speech. The public debate about religious freedom in Australia does not centre on controversies about such issues as the display of religious symbols, the building of places of worship, the freedom to gather as religious communities, the freedom to wear religious dress or being granted leave from work to celebrate religious holidays (although all of these have figured in public conversation and debates about religious freedom over the years). It centres on the degree of permission granted by the state allowing religious institutions, organisations and groups to make and act on pronouncements about so-called moral issues, especially those related to the lives of LGBTQ+ people. It is a consequence of the gradually increasing influence of the Christian Right in Australia (assisted by alliances with religious leaders in conservative Catholic, Protestant and Pentecostal traditions), opportunistically amplified by culture warrior politicians like Latham and the Murdoch media, that has significantly contributed to the turn to belief in the discourse of religious freedom. This analysis demonstrates that in the contemporary public debate about religious freedom, the object of religious freedom is not the discrimination, prejudice and vilification being experienced by people from minority religious groups; it is not the women who are spat on because they are wearing a hijab or the Jewish community which has to deal with people driving past their synagogue making Nazi salutes, or the young Sikh student bullied because of his long hair.56 The object of religious freedom that now dominates public debate is the expression (in word and deed) of a small set of traditional/ conservative Christian ‘beliefs’ about gender, sexuality, marriage, abortion and euthanasia – beliefs which are contested within every religious tradition. And as Fisher made so clear in his lecture, protecting this kind of religious freedom will ensure that the church-state relationship remains a privileged one in ­Australian society.

56

See for example, Derya Iner, Islamophobia in Australia Report II (2017–2018), Charles Sturt University and ISRA (Sydney, 2019), http://www.islamophobia.com.au/wp-content /uploads/2019/11/Islamophobia-Report-2019-2.pdf; Executive Council of Australian Jewry, Submission, Inquiry into Religious Discrimination Bill 2021, Religious Discrimination (Consequential Amendments) Bill 2021 and Human Rights Legislation Amendment Bill 2021 (2021), https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Reli giousDiscrimination/Submissions.

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The difficulties that the freedom of belief discourse and the politics that surround it pose for minority religious groups were evident during the course of the debate on the RDB: The Executive Council of Australian Jewry co-chief executive, Peter ­Wertheim, said smaller faiths wanted institutions that catered to the special needs of their communities to “continue to provide kosher food to people in aged care, or prayer facilities in a Jewish hospital” without being accused of discrimination. But Wertheim said it was larger faiths including Christian churches which “want to preference members of their own faith in staffing” while Jewish institutions were “far too small to have that luxury”.57 This comment is consistent with the findings of Ezzy et al. that in relation to anti-discrimination laws, Christians and people from minority religious groups see themselves and the issues of religious freedom very differently.58 People from minority religious groups value the law for setting a standard for the reduction of discrimination, vilification and prejudice. ‘They are not seeking to impose their religious beliefs or practices on others. Rather, they are seeking to have the right to practise their religion and participate equally in society without discrimination or harassment.’59 Christians, on the other hand, were concerned ‘by a perceived decline of Christian influence in the public sphere’.60 Their concerns are not about the desire to be treated equally, but the desire to have ­Christian voices and values heard by others, including those who are not Christians. They also seem surprisingly unaware of the harm and ­violence that can result from the expression of these views.61 Ezzy et al. define the question at the heart of the contemporary Australian debate about religious freedom as: 57

58 59 60 61

Paul Karp and Sarah Martin, “Religious groups warn Australia government to retain clause allowing discrimination in proposed bill,” The Guardian 4 November 2021, https:// www.theguardian.com/world/2021/nov/04/religious-groups-warn-government-to-retain -clause-allowing-discrimination-in-proposed-bill. Douglas Ezzy, Rebecca Banham, and Lori Beaman, “Religious Diversity, Legislation, and Christian Privilege,” Journal of Sociology (2021), https://doi.org/10.1177/14407833211022036. Ezzy, Banham, and Beaman, “Religious Diversity, Legislation, and Christian Privilege,” 8. Ezzy, Banham, and Beaman, “Religious Diversity, Legislation, and Christian Privilege,” 8. Ezzy, Banham, and Beaman, “Religious Diversity, Legislation, and Christian Privilege,” 9.

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whether it is acceptable to provide publicly funded services to the g­ eneral population conditionally on faith-based terms in order to ensure the integrity of the religious character of the organisation when such terms undermine the human rights to equality and dignity, and inflict considerable harm on LGBTQ+ people?62 In acceding to the demands of conservative religious leaders and political and media culture warriors and answering ‘yes’ to this question in such an expansive way through the ‘statements of belief’ clause in the RDB, the Morrison Government sealed the Bill’s fate. In seeking to entrench the freedom of belief discourse in legislation, the Morrison Government also sealed the fate of those who had been looking to the Government to finally enact protections for religious freedom that would articulate the unacceptability of discrimination and vilification against people because of their religion and provide recourse for harms caused. The turn to belief in the discourse of religious freedom has served to perpetuate Christian privilege in the public sphere and marginalise the protection needs of people from minority religious groups. Bibliography Arnal, William E., and Russell T. McCutcheon. ““They Licked the Platter Clean”: On the Codependency of the Religious and the Secular.” Chap. 7 In The Sacred Is ­Profane: The Political Nature of ‘Religion’, edited by William E. Arnal and Russell T. ­McCutcheon, 114–33. New York: Oxford University Press, 2013. Australian Lawyers for Human Rights. Submission to the NSW Parliament Joint Select Committe Inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020. (2020). https://www.parliament.nsw.gov.au/committees /listofcommittees/Pages/committee-details.aspx?pk=267#tab-submissions. Bouma, Gary. “Religious Diversity and Social Policy: An Australian Dilemma.” Australian Journal of Social Issues 47, no. 3 (2012): 281–95. http://go.galegroup.com/ps/i.do?id =GALE%7CA334604877&v=2.1&u=macquarie&it=r&p=EAIM&sw=w&asid=d92cf a873ec57964cfa8befb03e0cba6. Chrysanthos, Natassia. “‘Essence of the Bill Is Forgotten’: Religious Leaders Urge ­Government to Focus.” Sydney Morning Herald, 10 February 2022. https://www.smh

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Douglas Ezzy et al., “LGBTQ+ Non-discrimination and Religious Freedom in the Context of Government-funded Faith-based Education, Social Welfare, Health Care, and Aged Care,” Journal of Sociology (2022): 7, https://doi.org/10.1177/14407833211072566.

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.com.au/national/nsw/essence-of-the-bill-is-forgotten-religious-leaders-urge -government-to-focus-20220210-p59vbo.html. Chung, Laura, and Sarah McPhee. “Boy Charged after 16-Year-Old Stabbed at School in Sydney’s West.” Sydney Morning Herald, 7 May 2021. https://www.smh.com.au /national/nsw/teenager-airlifted-to-hospital-after-school-stabbing-in-sydney-s -west-20210506-p57pj9.html. Commonwealth Parliament of Australia [Hansard]. “House of Representatives Parliamentary Debates, Scott Morrison.” (4 December 2017): 12347–49. https://parlinfo.aph.gov .au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr %2F72ab0aa3-c3f2-48e1-b365-7e7ac525ceb6%2F0106%22. Commonwealth Parliament of Australia [Hansard]. “House of Representatives ­Questions without Notice, Religious Discrimination Bill 2021, Scott Morrison.” (8 February 2022 (Proof)): 26–27. https://www.aph.gov.au/Parliamentary_Business /Hansard/Hansard_Display?bid=chamber/hansardr/25464/&sid=0000. Curtis, Finbarr. The Production of American Religious Freedom. New York: New York University Press, 2016. Davies, Glenn N. “Archbishop of Sydney Letter to Churches – Coalition for Marriage Campaign Donation.” 2017. https://sydneyanglicans.net/news/archbishops-letter-to -churches/46607. Campaign Donation. “Freedom of Faith and Israel Folau.” Sydney Anglicans, 25 June 2019. https://sydneyanglicans.net/news/freedom-of-faith-and-israel-folau. Campaign Donation. “Presidential Address – Third Session of the 51st Synod of the Diocese of Sydney.” Sydney Diocesan Services, 2019. https://www.sds.asn.au/sites/default /files/Presidential%20Address%202019%20%28final%29.pdf ?doc_id=NDM 4MDc=. Executive Council of Australian Jewry. Submission, Inquiry into Religious Discrimination Bill 2021, Religious Discrimination (Consequential Amendments) Bill 2021 and Human Rights Legislation Amendment Bill 2021. (2021). https://www.aph.gov.au /Parliamentary_Business/Committees/Joint/Human_Rights/ReligiousDiscrimina tion/Submissions. Ezzy, Douglas, Rebecca Banham, and Lori Beaman. “Religious Diversity, Legislation, and Christian Privilege.” Journal of Sociology (2021): https://doi.org/10.1177 /14407833211022036. Ezzy, Douglas, Lori Beaman, Angela Dwyer, Bronwyn Fielder, Angus McLeay, Simon Rice, and Louise Richardson-Self. “LGBTQ+ Non-Discrimination and Religious Freedom in the Context of Government-Funded Faith-Based Education, Social Welfare, Health Care, and Aged Care.” Journal of Sociology (2022): 1–21. https://doi .org/10.1177/14407833211072566.

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Fisher, Anthony. “Religious Freedoms Threatened by Air of Militant Secularism.” The Australian, 31 January 2018. Fisher, Anthony. “Should Bakers Be Forced to Bake Cakes for Same Sex Weddings? Democracy and the Rights and Limits of Religion and Conscience in ­Contemporary Australia.” CIS Occasional Papers 143 (2015). https://www.cis.org.au/app/uploads /2015/11/op143.pdf. Harris, Christopher, and Mitchel Van Homrigh. “Glenwood Stabbing: Religious Knife Ban for NSW Schools.” The Daily Telegraph, 18 May 2021. https://www.dailytelegraph .com.au/news/nsw/glenwood-stabbing-call-to-close-religious-knife-loophole /news-story/3e5273c295f6510bf16d43a17c3a3b21. Iner, Derya. Islamophobia in Australia Report II (2017–2018). Charles Sturt University and ISRA (Sydney: 2019). http://www.islamophobia.com.au/wp-content/uploads /2019/11/Islamophobia-Report-2019-2.pdf. Karp, Paul, and Sarah Martin. “Religious Groups Warn Australia Government to Retain Clause Allowing Discrimination in Proposed Bill.” The Guardian, 4 November 2021. https://www.theguardian.com/world/2021/nov/04/religious-groups-warn-govern ment-to-retain-clause-allowing-discrimination-in-proposed-bill. Keane, Web. “What Is Religious Freedom Supposed to Free?”. Chap. 4 In The Politics of Religious Freedom, edited by Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood and Peter G. Danchin, 57–65. Chicago: University of Chicago Press, 2015. Kelly, Paul. “The Same-Sex Marriage Debate and the Right to Religious Belief.” The A ­ ustralian, 11 July 2015. Kelly, Paul. “Threat to Religious Freedom from Same-Sex Marriage Debate.” The A ­ ustralian, 28 November 2015. Latham, Mark. “Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 – Second Reading Speech.” Parliament of New South Wales: Legislative Council Hansard, 13 May 2020. https://www.parliament.nsw.gov.au/Hansard/Pages /HansardResult.aspx#/docid/’HANSARD-1820781676-81731. Lidberg, Johan. “The Distortion of the Australian Public Sphere: Media Ownership Concentration in Australia.” Australian Quarterly 90, no. 1 (2019): 12–44. Morrison, Scott, and Christian Porter. “Press Conference – Religious Discrimination Act Revised Draft.” news release, 10 December 2019, https://www.pm.gov.au/media /press-conference-sydney-nsw-1. Pepper, Miriam, Ruth Powell, and Gary D. Bouma. “Social Cohesion in Australia: Comparing Church and Community.” Religions 10, no. 605 (2019): 1–21. https://doi.org /10.3390/rel10110605.

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Poulos, Elenie. “‘The Bell Was Tolling’: The Framing of Religious Freedom in the Australian Editorials 2015–2019.” Australian Journal of Human Rights 26, no. 3 (2021): 428–48. https://doi.org/10.1080/1323238X.2021.1885290. Poulos, Elenie. “Constructing the Problem of Religious Freedom: An Analysis of ­Australian Government Inquiries into Religious Freedom.” Religions 10, no. 583 (2019): 1–17. https://doi.org/10.3390/rel10100583. Poulos, Elenie. “The Politics of Belief: The Rise of Religious Freedom in Australia.” ­Macquarie University, 2020. http://hdl.handle.net/1959.14/1282888. Poulos, Elenie. “The Power of Belief: Religious Freedom in Australian Parliamentary Debates on Same-Sex Marriage.” Australian Journal of Political Science 55, no. 1 (2020): 1–19. https://doi.org/10.1080/10361146.2019.1706719. Shanahan, Angela. “In a Looking-Glass World, Some ‘Values’ Are More Prized Than Others.” The Australian, 21 December 2019. Stoker, Amanda. “Secularism Would Stifle Faith If Labor Has Its Way.” The Australian, 13 December 2018. https://www.theaustralian.com.au/commentary/opinion /secularism-would-stifle-faith-if-labor-has-its-way/news-story/0f1ccf41b0a3b5 01c6b2d5219ebe1992. Sullivan, Winnifred Fallers, Elizabeth Shakman Hurd, Saba Mahmood, and Peter G. Danchin. (eds.). The Politics of Religious Freedom. Chicago: University of Chicago Press, 2015. Tehan, Dan. “Let’s Protect Belief.” The Australian, 7 July 2018. Uniting Church in Australia Synod of NSW and ACT. Submission to the NSW Parliament Joint Select Committee Inquiry into the Anti-Discrimination Amendment (­ Religious Freedoms and Equality) Bill 2020. (2020). https://www.parliament .nsw.gov.au/committees/listofcommittees/Pages/committee-details.aspx?pk=267 #tab-submissions. Waller, Lisa, and Kerry McCallum. “Keystone Media: The Australian and ­Indigenous Affairs.” Media International Australia 161, no. 1 (2016): 109–19. https://doi.org/10.1177 /1329878X16670816. West, Isaac. “Wedding Cakes, Equality, and Rhetorics of Religious Freedom.” First Amendment Studies 53, no. 1–2 (2019): 1–21. https://doi.org/10.1080/21689725.2019. 1604246.

Chapter 8

The U.S. Supreme Court’s New Religious Discrimination Doctrine and the Privileging of “Majoritarian” Religions Frank S. Ravitch 1 Introduction The United States Supreme Court has recently expanded what counts as ­discrimination under the Free Exercise Clause of the First Amendment to the United States Constitution. It has done so against a backdrop where socially conservative Christians often claim to be the victims of discrimination, and it has done so in a way that overwhelmingly benefits larger Christian groups. Importantly, the Court’s approach has the potential to undermine the religious freedom of religious minorities, albeit unintentionally. Some examples are blatant, such as the failure to stay the execution of a Muslim prisoner in Alabama because the state would not allow an Imam to attend his execution even though the state allowed Christian ministers in the execution chamber.1 Other examples are more subtle, such as expanding the concept of discrimination under the Free Exercise Clause to require states to include religious schools in funding systems that could very easily include vouchers.2 This can have a negative impact on religious minorities and nonbelievers who often cannot take advantage of school vouchers because vouchers, and other private school aid programs, tend to inure to the benefit of highly subsidised religious schools that charge lower tuition.3 These schools are overwhelmingly Catholic and large church Evangelical.4 This is not to say that the Court’s expansion of the concept of discrimination under the Free Exercise Clause is inherently wrong, but it does seem to reflect the preconceptions of the more conservative Justices. 1 Dunn v. Ray, 586 U.S. ____, 139 S.Ct. 661 (2019); Ibid. (Kagan, J., dissenting). 2 Espinoza v. Montana Dept. of Revenue, 591 U.S. ___, 140 S. Ct. 2246 (2020). 3 Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Souter, J., dissenting); Frank S. ­Ravitch, ­Masters of Illusion: The Supreme Court and the Religion Clauses (New York: New York ­University, 2007), 28–9. 4 Ibid. (Zelman v. Simmons-Harris). © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_009

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This chapter will proceed in three parts. Part 2 will explain the U.S. Supreme Court’s recent expansion of the discrimination concept under the Free ­Exercise Clause. Part 2 will demonstrate how this doctrine has moved from being a mechanism to stop the sort of intentional discrimination most likely to be aimed at religious minorities or unpopular religions to one that doesn’t require the same sort of intent to discriminate, and which inures mostly to the benefit of more dominant Christian groups. Part 3 will explain how using the new discrimination concept to support programs like school vouchers, even when states have an interest in not funding religious education, can lead to a highly discriminatory disparate impact on religious minorities and dissenters. Part 4 will provide a brief conclusion. 2

The Supreme Court’s Recent Religious Discrimination Decisions

In Employment Division v. Smith, the Court held—against longstanding ­precedent—that government need not provide religious exemptions to generally applicable laws.5 Smith was a wildly unpopular decision. Smith had a particularly harsh impact on religious minorities, a possibility the Smith Court itself acknowledged.6 Yet, even Smith did not countenance intentional discrimination. Three years after Smith in Church of Lukumi Babalu Aye v. City of Hialeah the question of whether claims for religious discrimination under the Free Exercise Clause survived Smith was put to the test.7 In that case the Court found the actions of the City of Hialeah, which involved overt discrimination and religious gerrymandering, were neither generally applicable nor neutral.8 The city of Hialeah passed an ordinance targeting the Santeria practice of animal sacrifice. The ordinance, while neutral on its face, only applied to Santeria practices and thus failed the neutrality requirement.9 The city did not allege an adequate compelling interest,10 and the ordinance was far from the least restrictive means of meeting the compelling interests alleged by the city.11 Justice Scalia, the author of the Smith decision, filed an opinion concurring in part and in the judgment. Interestingly, that opinion took issue with the 5 Employment Div. v. Smith, 494 U.S. 872 (1990). 6 Ibid. at 890. 7 508 U.S. 520 (1993). 8 Ibid. at 533–35. 9 Ibid. at 535. 10 Ibid. at 538–39. 11 Ibid. at 539.

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Court’s imposition of the neutrality requirement, which he viewed as unnecessarily repetitive of the general applicability test from Smith.12 The majority answered that neutrality is important because laws may be generally applicable on their face, yet still target religion in their structure or application.13 Until recently, it seemed that the antidiscrimination/ lack of neutrality limit on the Smith principle could only arise in cases where there is some sort of intentional discrimination or religious gerrymandering aimed at a religious practice. That is, the anti-discrimination/lack of neutrality principle in this context was violated only when there was intentional discrimination of some sort. Otherwise, Smith would apply. 2.1 A Shift in Application For almost 25 years there were no U.S. Supreme Court cases applying, and certainly none expanding, the Lukumi Babalu Aye approach. There were, however, several interesting lower court decisions. Then, in 2017, the Court decided ­Trinity Lutheran v. Comer.14 In Trinity Lutheran the Court applied the neutrality concept to a situation where the law was not designed to harm the practice of religion, but rather denied religious entities access to a state benefit—­ playground chips recycled from tires under a state program—due to a clause in the state constitution.15 The Court held that this sort of denial, which was based on religious status,16 discriminates in violation of the neutrality principle and is therefore unconstitutional.17 In Trinity Lutheran, the neutrality principle went from protecting against religious discrimination that targets religious practices to creating a broad based ban on differential treatment of religion even when the differential treatment is based on state establishment of religion concerns.18 Trinity Lutheran expanded the Lukumi Babalu Aye approach, but it did so in a limited manner. The Trinity Lutheran decision explains that: Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. … The express discrimination against religious exercise here is not the denial of a grant, but rather the 12 13 14 15 16 17 18

Ibid. at 557 (Scalia, J., concurring in part and concurring in the judgment). Ibid. at 533–34. 137 S.Ct. 2012 (2017). Ibid. 2017, 2022–23. Ibid. at 2021. Ibid. at 2019–21. Ibid. 2039–41 (Sotomayor, J., dissenting).

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refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.19 In other words, the holding in Trinity Lutheran reflects the notion that once the government opens a ‘public benefit’ it cannot deny that benefit to a religious entity solely based on that entities’ religious status. Moreover, a state cannot rely on its own state constitution to deny religious entities access to a public benefit because according to the Court any such denial violates the Free Exercise Clause of the U.S. Constitution. If all ‘public benefits’ that might qualify for this protection were as innocuous as playground resurfacing, Trinity Lutheran would seem an imminently reasonable decision. After all, denying access to funding for a primarily secular benefit simply because of the religious status of the entity seeking the benefit would imply discrimination against religious entities and would seem an obvious violation of the Free Exercise Clause. Yet, where is the line to be drawn between public benefits that qualify for such protection and those that do not? Importantly, footnote 3 in the opinion reads: This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.20 Footnote 3 was the only part of the opinion not joined by Justices Gorsuch and Thomas, and therefore it only commanded a plurality of Justices. It does seem, however, that Justice Breyer, who concurred only in the Judgement, and Justices Sotomayor and Ginsburg would agree with the potential limiting principle in footnote 3. On its face footnote 3, combined with some other statements in the Majority Opinion, seems to limit the opinion to programs that have no direct religious content. If that were the case there is at least a chance that Trinity Lutheran could not be used to force state and local governments to include religious schools in every program, including those that may lead to government funds being used to send students to schools that may proselytise them, even if through the supposed private choice of parents. Yet, how much footnote 3 limited the broader holding in Trinity Lutheran was unclear, especially given some of the strong language used in the Majority opinion suggesting that excluding religious entities from ‘public benefit’ programs based on the fact that they are 19 20

Ibid. at 2022. Ibid. at 2024, fn. 3.

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religious entities is inherently discriminatory. Any hope for a potential limiting principle arising from footnote 3 was dashed in Espinoza v. Montana Department of Revenue discussed below.21 2.2 Expanding What Counts as Evidence of Discrimination The Court’s next foray into the free exercise discrimination concept came just one year later, in Masterpiece Cakeshop v. Colorado Civil Rights Commission,22 Jack Phillips, the owner of a bakery in Lakewood, Colorado refused to make a wedding cake for Charlie Craig and David Mullins’ wedding reception.23 ­Phillips is a devout Christian and opposes same-sex marriage.24 He had no problem, however, providing sales or services to gays and lesbians in contexts other than weddings.25 The Colorado Anti-Discrimination Act (CADA) clearly protects gays and ­lesbians from discrimination in public accommodations.26 Craig and Mullins filed a complaint under CADA.27 The Colorado Civil Rights Division ­investigated the complaint and found probable cause, and sent the matter to the C ­ olorado Civil Rights Commission.28 Craig and Mullins won their case before an administrative law judge and on appeal to the Commission from the administrative law judge’s decision.29 Ultimately, the Colorado Court of Appeals upheld the Commission’s decision and ordered Phillips to cease and desist in his refusal to make wedding cakes for same-sex marriages.30 The U.S. Supreme Court granted certiorari after the Colorado Supreme Court refused to hear the case.31 Phillips raised two constitutional defenses to the violation of Colorado law. First, he claimed that his religious convictions should protect him from making the cake for Craig and Mullins wedding reception since doing so would make him complicit in what he views as a sin.32 He also claimed that making

21 591 U.S. ___, 140 S. Ct. 2246 (2020). 22 584 U.S. ___, 138 S.Ct. 1719 (2018). 23 Ibid. at 1724. 24 Ibid. at 1724, 28. 25 Ibid. at 1724. 26 Colorado Anti-Discrimination Act, Colo. Rev. Stat. §24-34-601(2)(a)(2017). 27 584 U.S. ___, 138 S.Ct. at 1725. 28 Ibid. at 1726. 29 Ibid. 30 Ibid. at 1726–27. 31 Ibid. at 1727. 32 Ibid. at 1724, 28.

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a wedding cake is a use of his artistic and creative talent.33 Therefore, forcing him to make the cake would be a violation of his free speech rights.34 Colorado does not have a Religious Freedom Restoration Act (RFRA) so at first glance it seemed the state did not need to show a compelling interest and narrow tailoring for refusing to give Phillips an exemption from the generally applicable civil rights law.35 It seemed, at least to many observers, that the main argument upon which Phillips would have a chance was the free speech argument.36 As it turns out, however, the Court punted and did not answer either question directly due to some extenuating facts the Court found central to the outcome.37 As a result, commentators have lamented the lack of guidance states and lower courts have in deciding cases involving conflicts between complicity and discrimination, at least in situations where there is no Religious Freedom Restoration Act (RFRA) and expressive activity is involved.38 As I have explained elsewhere, even with a RFRA, there would be no guarantee that Phillips would have won; although it would have been a much closer question on the merits.39 Yet, the United States Supreme Court’s decision in Masterpiece Cakeshop was based on the principle that government must remain neutral towards religious individuals and entities when it creates or enforces a law.40 If the law is not generally applicable, or it is not neutral, the government must meet the strict scrutiny test.41 Masterpiece Cakeshop was, therefore, the Court’s next step in 33 Ibid. at 1728. 34 Ibid. 35 See, Employment Division v. Smith, 494 U.S. 872 (1990) (holding that government does not have a duty to provide exemptions to laws of general applicability under the Free Exercise Clause). 36 Frank S. Ravitch and Brett G. Scharffs, “Point-Counterpoint, Piece of Cake: Masterpiece ­Cakeshop Ltd. v. Colorado Civil Rights Commission,” Judicature 102, no. 1 (Spring 2018) 67–75. 37 584 U.S. ____, 138 S.Ct. at 1729–32. 38 Kevin Drum, The Cake Ruling Wasn’t “Narrow,” It Was a Punt, Mother Jones, Jun. 5, 2018; Christine Emba, The Supreme Court Wasn’t Ready to Decide on the Wedding Cake. Neither are We, Washington Post, June 5, 2018. Garrett Epps, Justice Kennedy’s Masterpiece Ruling: The Supreme Court found in favor of a baker who refused to sell a cake to a same-sex couple, but used a rationale that sheds little light on the case’s larger civil-rights implications, The Atlantic, Jun 4, 2018; Timothy R. Holbrook, Analysis: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Emory Law News Center, June 20, 2018, http://law.emory .edu/news-center/releases/2018/06/masterpiece-cake-shop-opinion-holbrook.html (last visited on Aug. 9, 2018). The speech question may be answered in the 2023 Court term. 39 Frank S. Ravitch, Freedom’s Edge: Religious Freedom, Sexual Freedom and the Future of America (Cambridge: Cambridge University Press, 2016), 99–102. 40 584 U.S. ____, 138 S.Ct. at 1731–32. 41 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).

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the evolution of the antidiscrimination/neutrality principle. The Court found a pattern of hostility against religion by the Colorado Civil Rights C ­ ommission (a highly questionable finding given the record),42 and found that Jack Phillips was treated differently by the commission than bakers who refused to make cakes containing homophobic messages that referenced religion (an even more questionable finding given the record).43 If either of these findings were based in solid facts Masterpiece Cakeshop would indeed be a case similar to Lukumi Babalu Aye, or at the very least, Trinity Lutheran. Significantly, the argument that the Colorado Civil Rights Commission (rather than one commissioner in one hearing) demonstrated hostility toward religion is highly questionable. Certainly, any hostility by the Commission as a whole was far from that aimed at Santeria in Lukumi Babalu Aye.44 ­Moreover, the comparison to the cases involving other bakers was based on creating a false equivalency between apples and oranges.45 In fact, two concurring ­Justices recognised that these situations could have been treated differently. They disagreed, however, with the Commission’s decisions because the Commission relied on its perception of the offensiveness of the denials in the two situations rather than the actual differences between the two situations.46 Masterpiece Cakeshop expands the sort of conduct that can lead to a finding of discrimination in violation of the Free Exercise Clause. In this way, whether one likes the outcome or not, it is a significant addition to the trend of expanding the neutrality principle from Lukumi Babalu Aye.47 In finding the commission’s proceedings had ‘elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [Phillips’] objection,’48 the Court relied heavily on statements made by one commissioner at public hearings held on July 25, 2014.49 That commissioner said: Freedom of religion and religion has been used to justify all kinds of d­ iscrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. 42 43 44

584 U.S. ___, 138 S.Ct. at 1729–30. Ibid. at 1730–31. See generally, 508 U.S. 520 (1993) (recounting a detailed pattern of religious animus and the gerrymandering of ordinances to target a particular religious practice). 45 Ibid. at 1750–51 (Ginsburg, J., dissenting). 46 Ibid. at 1732–33 (Kagan, J., concurring). 47 508 U.S. 520 (1993). 48 584 U.S. ___, 138 S.Ct. at 1729. 49 Ibid.

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And to me it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.50 The Court noted that the other commissioners did not object to this comment,51 but the Court does not mention that the other commissioners said nothing supporting the comment either. Certainly, however, the sentiments of this one commissioner evinces the sort of hostility and lack of neutrality that would violate the neutrality principle from Lukumi Babalu Aye and Trinity Lutheran. It is a statement that stereotypes and degrades religious conscience claims generally and draws a false equivalency between some of the worst acts of hate and discrimination in history and Phillips’ conscience claim. Yet, it is only the statement of one commissioner and it was not the basis on which the commission made its decision.52 Moreover, the Colorado ­Anti-­Discrimination Law is nothing like the gerrymandered law found unconstitutional in Lukumi Babalu Aye or the rule at issue in Trinity Lutheran, which treated religious entities differently from other entities solely based on religious status.53 The statement of the one commissioner is similar to—but not as extreme—as some of the things said by City of Hialeah officials in the Lukumi Babalu Aye case.54 Significantly, in that case the law itself was gerrymandered and it is unlikely that the statement of one official, without more, would have been adequate to find a violation of neutrality or general applicability.55 Of course, the Masterpiece Cakeshop Court discussed more than just the one official’s statement in support of its position that the commission was hostile to Phillips’ sincerely held religious beliefs.56 The Court relied on statements made by commissioners at an earlier public hearing held on May 30, 2014, but those were not discriminatory on their face or seemingly in their intent. Even if the Court’s reading of the relationship between the statements made on May 30 and July 25 is a bit strained, the Court’s finding of hostility could be supported if the commission’s treatment of Phillips’ case was comparable to, and less favorable than, its treatment of bakers who refused to make cakes with messages based in religion. Yet, for a variety of reasons set forth in the

50 Ibid. (citing Tr. 11–12). 51 Ibid. 52 Ibid. at 1749, 1751–52 (Ginsburg, J., dissenting). 53 137 S.Ct. 2012 (2017). 54 508 U.S. at 541–42. 55 See generally, 508 U.S. 20 (addressing a detailed pattern of hostility and passage and enforcement of laws designed to harm only Santeria religious practices). 56 Ibid. at 1729–31.

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dissenting opinion and Justice Kagan’s concurring opinion, the cases involving the other bakers and Phillips’ case were quite different.57 The Court held: Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights ­Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory …”58 All of the cases referenced by the Court were based on complaints filed by ­William Jack who visited three different bakeries requesting two cakes at each.59 As Justice Ginsburg quotes from the record, Jack requested that each cake be: [M]ade to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] … ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’”60 The three bakeries refused to make the cakes with the messages that Jack ­ anted.61 All three were willing to make Bible-shaped cakes, but none would w write the messages that Jack requested.62 One even stated that she would give 57 58

Ibid. at 1732–33 (Kagan, J., concurring); 1750–51 (Ginsburg, J., dissenting). Ibid. at 1730, citing Jack v. Gateaux, Ltd., Charge No. P20140071X; Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X; Jack v. Azucar Bakery, Charge No. P20140069X. 59 Ibid. at 1749 (Ginsburg, J., dissenting). 60 Ibid. (citing App. to Pet. for Cert. 300a, 310 a, 319a). 61 Ibid. 62 Ibid.

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Jack the icing and piping bag to write the messages himself, but she would not write the discriminatory messages.63 Jack filed claims of religious discrimination against all three bakeries and the Civil Rights Division found that there was no probable cause to grant his claims because the services were not denied based on his Christian religious beliefs. The Commission affirmed the Civil Rights Division’s finding.64 The Court held that Jack’s claim and Phillips’ claim were treated differently by the Commission due to hostility toward religion.65 The Court found that the Commission did not take Phillips’ religious objections as seriously as it took the other bakers’ objections to what they perceived as the discriminatory messages that Jack requested.66 Thus, according to the Court, the Commission favored the secular concerns of the other bakers over the religious concerns expressed by Phillips.67 Justice Gorsuch filed a concurring opinion joined by Justice Alito reinforcing the Court’s basis for finding that the Commission discriminated when it denied Jack’s claim and granted relief to Craig and Mullins against Phillips.68 Yet, Phillips’s case is demonstrably different from Jack’s cases. First, the bakers in Jack’s cases did not refuse to serve him or make the cake in the shape of the bible.69 They refused to write messages they deemed discriminatory on the cakes precisely because they deemed those messages discriminatory, not because the messages were religious.70 Second, Phillips never discussed a cake design or message with Craig and Mullins.71 He refused to make them a cake as soon as he learned it was for a same-sex marriage.72 If the Court had addressed Phillips’ free speech claim, perhaps it might have found that Phillips’ denial was based on message rather

63

Abby Ohlheiser, “This Colorado baker refused to put an anti-gay message on cakes. Now she is facing a civil rights complaint,” Washington Post, Jan. 28, 2015, https://www.washing tonpost.com/news/post-nation/wp/2015/01/22/this-colorado-baker-refused-to-put-an -anti-gay-message-on-cakes-now-she-is-facing-a-civil-rights-complaint/ (accessed Febru�ary 25, 2022). 64 584 U.S. ___, 138 S.Ct. at 1749 (Ginsburg, J., dissenting). 65 Ibid. at 1729. 66 Ibid. at 1730–31. 67 Ibid. 68 Ibid. at 1734 (Gorsuch, J., concurring). 69 Ibid. at 1750 (Ginsburg, J., dissenting). 70 Ibid. at 1750–51 (Ginsburg, J., dissenting). 71 Ibid. at 1749 (Ginsburg, J., dissenting). 72 Ibid. at 1750 (Ginsburg, J., dissenting).

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than LGBT status, but the Court never reached this issue.73 Since a design was never discussed Phillips had no idea what message, if any, Craig and Mullins would want on their cake. If a design had been discussed and Phillips refused to make a cake with a groom and a groom holding hands perhaps the cases would be comparable. In that situation his denial would have been more clearly based on the samesex marriage message rather than LGBT status of those getting married, but to get to that point there would have had to be discussion of cake design. In the end the bakers in Jack’s cases showed no hostility toward religion or religious messages generally.74 Their objection was to what they saw as discriminatory.75 If a secular homophobe had asked them to bake similar cakes with non-­ religious anti-gay messages it seems obvious the bakers would have refused to include the messages as they did with Jack.76 If a heterosexual couple asked for a wedding cake Phillips would have made it.77 Justice Gorsuch suggests that this is not dispositive of the comparison between Jack and Phillips’ situations, because Phillips would not have made a cake for a heterosexual couple if the cake celebrated same-sex marriage,78 but as Justice Kagan explains in her concurrence, if the couple were heterosexual they would not be asking for a same-sex wedding cake.79 Moreover, while the sexuality of those requesting the cake was central to Phillips’ decision, Jack’s religion was not central to the other bakers’ decisions.80 There is no evidence they would refuse to make any cake with a religious message of any kind that was not discriminatory.81 The religious aspect of Jack’s message was not dispositive for the other bakers, the discriminatory aspect was.82 None of this means that Phillips would have necessarily lost his case if the Court had reached the free speech claims. It might have been that the Court could find Phillips made his decision based on the message of same-sex marriage rather than on the status of the customers. The above discussion suggests,

73

See generally, 584 U.S. ___, 138 S.Ct. 1719 (addressing only the hostility issue and specifically holding it would not decide the free speech or other issues in the case). 74 Ibid. at 1750–51 (Ginsburg, J., dissenting). 75 Ibid. (Ginsburg, J., dissenting) 76 Ibid. at 1751 (Ginsburg, J., dissenting). 77 Ibid. at 1750 (Ginsburg, J., dissenting). 78 Ibid. at 1736 (Gorsuch, J., concurring). 79 Ibid. at 1733 n.* (Kagan, J., concurring). 80 Ibid. at 1750–52 (Ginsburg, J., dissenting). 81 Ibid. 82 Ibid.

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however, that the hostility and lack of neutrality toward religion upon which the Court relied is highly questionable. Significantly, whether merited by the facts or not, the Court seems to have expanded what qualifies as a violation of the neutrality principle from Lukumi Babalu Aye and Trinity Lutheran. Clearly, whether in the context of a complicity claim or otherwise, government entities cannot act with hostility, or lack of neutrality, toward religion or specific religious beliefs. Factually, it seems all that is needed to support a claim that the neutrality principle has been violated is a negative statement or statements by someone working on behalf of a government entity charged with enforcing a law, and/or a situation where a government entity treats secular objections and conscience based religious objections differently.83 To the extent this expansion of neutrality is used in a manner to protect against the sorts of situations that arose in Lukumi Babalu Aye, or perhaps ­Masterpiece Cakeshop, it is a welcomed recognition that government should not act with hostility toward religion or a particular religious perspective. Yet, as will be seen, this was not the end of the expansion of the discrimination concept nor of its seeming favoritism towards Christians. The heavy focus in this chapter on Masterpiece Cakeshop is not an accident. It is because Masterpiece Cakeshop reflected a perfect storm for allowing the Justices’ preconceptions to determine what counts as discrimination/lack of neutrality under the Free Exercise Clause. Rather than requiring the clear sort of showing of discrimination that was made in Lukumi Babalu Aye, or a purely status-based distinction on the face of a law such as in Trinity Lutheran, ­Masterpiece Cakeshop sets the Court down the path of inferring discrimination by cherry picking isolated statements and recharacterising decisions by state actors as discriminatory against religion when there is a much easier and more obvious explanation. This was not a one-off situation either. In Roman Catholic Diocese of Brooklyn v. Cuomo,84 the Court granted injunctive relief against a New York order creating occupancy limits of 10 or 25 people in areas hard hit by COVID-19. The Court held that because secular businesses were not subject to the same limits the limits on churches and other houses of worship was discriminatory. Therefore, New York violated the Free Exercise Clause. 83

84

This becomes even more apparent when one combines the holding in Masterpiece C ­ akeshop, 584 U.S. ___, 183 S.Ct. 1719 (2018), with the holding in Trinity Lutheran, 582 U.S. ___, 137 S.Ct. 2012 (2017), because Trinity Lutheran reinforces the unconstitutionality of the second sort of state action on an even broader scale. 592 U.S. _____ (2020) (per curium).

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Yet, the state was regulating public health in the middle of a pandemic, and thus asserting the most fundamental of state interests based on the advice of public health officials. The Court nonetheless did the same thing it did with the William Jack situation in Masterpiece Cakeshop and created the comparison groups upon which it could find discrimination; although the comparisons were even more strained in this case due to the state’s asserted public health interest and the ease with which covid-19 could be spread. Is a church or other house of worship, where people stay for a long period of time often praying out loud and/or singing, the same as a store? Or is it more like a theatre or restaurant to which the same rule would have applied? The Court found the former and held that the state discriminated when it treated a church or house of worship essentially the same as a restaurant or theatre.85 Since the Court decided the comparison group for discrimination not based on any evidence of discrimination but based on the Court’s own judgement, a judgement that conflicted with public health officials’, the Court telegraphed its decision. On the other hand, not all the covid cases came out the same way. For ­example, in South Bay United Pentecostal Church v. Newsom,86 the Court denied injunctive relief to a church that challenged a statewide order limiting a­ ttendance at indoor events. The Court did not find discrimination in that case. Other covid cases followed a similar pattern of divided outcomes and opinions, but the key is that between Masterpiece Cakeshop and Roman ­Catholic Diocese of Brooklyn the Court has created a system where it can decide what the comparison groups are for discrimination and what counts as discrimination based on that decision. This is a far cry from the sort of proof in Lukumi Babalu Aye and perhaps even Trinity Lutheran. This sort of approach is rife with the possibility of favoritism toward more dominant religions and a failure to protect or understand the perspectives of religious minorities.87 2.3 From Protecting Religious Minorities to Favoring More Dominant Religions Between Masterpiece Cakeshop and Roman Catholic Diocese of Brooklyn the Court decided another case that could have a profound negative impact on religious minorities and dissenters as explained in detail in Part III of this chapter. That case is Espinoza v. Montana Department of Revenue, decided in 2020.88 The 5–4 ruling in Espinoza, further expands what counts as discrimination 85 Ibid. 86 ___ U.S. ___, 140 S.Ct. 1613 (2020). 87 See infra Part 3. 88 591 U.S. ___, 140 S. Ct. 2246 (2020).

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against religion and a violation of the neutrality principle under the Free ­Exercise Clause and makes it harder for states to deny benefits to faith-based institutions in a context far more troublesome than Trinity Lutheran. Thus, after almost 25 years of issuing no decisions based on discrimination under the Free Exercise Clause the Court issued three decisions in a span of three years (not even including the covid cases), each an expansion over the prior decisions. Espinoza represents the broadest expansion, albeit not the most ­factually disturbing. Espinoza involved a Montana tax credit program89 which provided a state tax credit to individuals or businesses that donated to recognised organisations providing scholarships for private schools. In turn, families could use the funds from the organisations for private school tuition and costs.90 Montana has a state constitutional amendment, reenacted in 1972, that prohibits state funds from supporting religious education.91 The Montana Department of Revenue created a rule that prohibited the tax credit from going to religious schools.92 The Montana Supreme Court held that the tax credit program violated the state constitution’s provision prohibiting aid to religious schools.93 Importantly, however, rather than strike down the law only as applied to religious schools the Montana Supreme Court held that the entire tax credit program was invalid.94 Therefore, since the program was invalidated in its entirety no tax credit was available regardless of the type of private school at which it would be used. The U.S. Supreme Court, over strong dissents, overturned the Montana Supreme Court decision, expanded the Trinity Lutheran decision, and essentially ignored footnote 3 from that decision.95 The Court held that the Montana no-aid provision as applied by the Montana Department of Revenue and the Montana Supreme Court was discriminatory in violation of the Free Exercise Clause.96 This decision was a dramatic expansion of the Trinity Lutheran reasoning because the tax credits supported scholarships that could be used to go to religious schools where the substance of the education is religious. That is, rather than funding playground chips that are not themselves religious the tax credits could fund direct religious education in violation of the state’s interest 89 Ibid. 90 Ibid. 91 Constitution of the State of Montana, Art. 10, Sec. 6 (1972). 92 Espinoza, ___ U.S. ___, 140 S.Ct. at 2252. 93 Ibid. at 2253. 94 Ibid. 95 See generally, Espinoza, 140 S. Ct. 2246. 96 Ibid.

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in remaining out of the religious funding game due to the divisiveness that it could create and due to the state’s interest in public education.97 There is a significant difference between holding that a state may fund tax credits or provide other aid to those attending religious private schools and holding that a state must fund these programs even when doing so conflicts with a state constitution. In Locke v. Davey, a case in which the Supreme Court ruled that a Washington state scholarship program that excluded students pursuing devotional degrees did not violate the First Amendment, the court held that there is ‘play in the joints’ between state constitutional concerns about promoting religion and the U.S. Constitution’s free exercise clause. However, Locke predated the Supreme Court’s decision in Trinity Lutheran, and the holding in Locke can be read as limited given the facts of that case. In Espinoza the Court pays Locke very little attention other than to distinguish it.98 Espinoza could massively limit states’ ability to exclude religious schools from all sorts of funding, including controversial voucher programs which allow state funds to be used by parents to send children to a private school. And rather than preventing religious discrimination, the court’s decision may support a system that discriminates against religious minorities and those of no faith. This will be discussed further in Part III of this chapter. It is essential to remember that in most U.S. states the vast majority of private schools are religious, and those schools whose tuition is low enough to accept many voucher students often represent only one or to denominations. In fact, the Espinoza decision was quickly hailed as a major win by supporters of school vouchers, including then Education Secretary Betsy DeVos. It isn’t the first time they have cheered the court’s decisions. In 2002, in Zelman v. S­ immons-Harris,99 the Court ruled in favor of a voucher program in Ohio which overwhelmingly benefited religious schools. The court held that the program did not violate the U.S. Constitution’s Establishment Clause which limits government support for, and promotion of, religion.100 That decision broke with a long line of previous cases, which held that government could not use taxpayer dollars to fund religious education.101 The Espinoza ruling did leave some potential space for limiting vouchers to religious private schools. The court draws a tightrope-like line between discrimination based on religious status – the fact that a school is religious – and 97 Ibid. at 2281 (Breyer, J., dissenting). 98 Ibid. at 2257–58 (majority opinion). 99 536 U.S. 539 (2002). 100 Ibid. 101 Ibid. at 639 (2002) (Souter, J., dissenting).

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situations where the denial of funding is based on concerns the funds will support religious functions.102 But precedent suggests walking this tightrope might be difficult for states and school districts. The Supreme Court’s decision in Zelman upheld vouchers for religious schools including those which proselytise. It is hard to imagine how a state might prevent funds from going to a faith-based school without it being seen as denying funding based on that school’s religious status. It is also important to note that, contrary to the Espinoza concurrences, the relevant provision of the Montana Constitution is not a baby Blaine ­amendment. Baby Blaine amendments are state constitutional amendments based, at least in part, on the anti-Catholicism that animated many supporters of the failed federal constitutional amendment proposed by Senator James G. Blaine in 1875. These baby Blaine Amendments are problematic because they were often, at least in part, motivated by reprehensible anti-Catholic animus.103 If the Montana provision were a baby Blaine amendment, this case could raise the question of whether state constitutional provisions that were based in animus but may have come to serve different purposes over time, violate the U.S. Constitution. Article X, Section 6, of the Montana Constitution as set forth by the 1972 Montana Constitutional Convention re-enacted and slightly amended a no-aid provision from the 1889 Montana Constitution. Regardless of whether the 1889 provision was a baby Blaine amendment, when the 1972 state constitutional convention considered and approved Article X, Section 6, anti-­Catholicism played no role: The primary focus was avoiding religious ­divisiveness and promoting public education.104 3 Why the Court’s New Free Exercise Anti-Discrimination Model May Have the Effect of Discriminating against Religious Minorities On their face neither Trinity Lutheran nor Espinoza appear to have anything to do with school vouchers. After all, the primary issue in each case is whether a state can deny, pursuant to its state constitution, funds to qualifying entities or individuals based on religious status. Yet, at their core these cases are about requiring states to include religious entities in public benefit programs generally open to other entities. Do these cases mandate that states include religious schools in all private school funding programs including voucher programs? 102 Espinoza, 140 S. Ct. 2246. 103 Ibid. at 2266 (Thomas, J., concurring); Ibid. at 2267 (Alito, J., concurring). 104 Ibid. at 2287–88 (Breyer, J., dissenting).

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The answer to this question is of colossal importance because it raises the specter of an earlier SCOTUS decision, Zelman v. Simmons-Harris.105 That ­decision held a school voucher program did not violate the Establishment Clause even when 96.4% of voucher recipients under the program went to religious schools that were free to proselytise.106 I have written elsewhere about the many problems with the Zelman opinion from its mischaracterisation of precedent to its use of an illusory concept of formal neutrality.107 Most importantly, after Zelman parents living in states or school districts that provide vouchers for private school attendance, but who do not want their children to be proselytised, may have few options. In many parts of the country most private schools, especially those that can afford to take students under voucher programs, are religious and often highly subsidised by their parent churches.108 The amount included in voucher subsidies often preclude smaller religious schools and nonreligious schools from participating.109 In Zelman, the Court upheld the program despite the fact that more than 96% of voucher students attended religious schools of only one or two denominations, ironically because that attendance was deemed to be based on “true private choice.”110 Meanwhile, parents who had religious objections to sending their children to these religious schools could do little as funds were drained from their children’s already failing schools leaving their children further behind. Their only hope would be to win a lottery for spots at a magnet school (assuming their child qualified) or for one of the few good charter schools available. Thus, the expansion of voucher plans, in my view, may encourage discrimination against religious minorities and dissenters. The practical result of voucher programs in many areas is that religious minorities and dissenters must choose between sending their children to a school at which they may be proselytised or leaving them in public schools that will be further drained of funding and children because of the voucher program.111 In this way, voucher

105 536 U.S. 639 (2002). 106 Ibid. 107 Frank S. Ravitch, Masters of Illusion: The Supreme Court and the Religion Clauses (New York: New York University, 2007),; Frank S. Ravitch, “A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause,” 38 Georgia. Law Review, 38 (Winter 2004), 489–573. 108 Ibid. (both sources). 109 Ibid. 110 Zelman, 536 U.S. 639. 111 Ravitch, Masters of Illusion, supra at 28–29.

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program may give religious minorities a stark choice between protecting their children’s material interests and protecting their children’s religious interests.112 As mentioned above, in most districts religious schools that can afford to take voucher students represent only a few larger denominations or churches that are able to highly subsidise religious education.113 Moreover, in most places the vast majority of private schools are religious and vouchers strip money from public education – every voucher going to a private school means a loss of per student funding for public schools.114 The Zelman Court attempted to whitewash the impact of vouchers by including public options to make it seem like vouchers didn’t favor religious schools, but as I have stated, this was just an illusion.115 In the end, many parents were faced with the choice of sending their children to failing public schools that would now be losing more funds and students or sending their children to religious schools of different faiths that were free to proselytise directly or by long term exposure, in some cases risking the children’s eternal souls from the parents’ faith perspective or risking the children’s denial of their faith (or lack of faith). Still, Zelman left open the question of whether government must fund religious entities when it opens up a generally available funding program. Until Espinoza the answer was unclear. It now seems that Espinoza will be used to expand the rule in Zelman from a “may” to a “must” such that state and local governments will have to include religious schools in voucher programs, or other funding programs, for fear of violating the Free Exercise Clause. This has significant implications for school vouchers. It could force states to include religious schools in any program that is open to private nonreligious schools. A case from Maine currently before the Court may answer this question in part,116 but the unique situation in Maine and the fact that the denial of funding was based on religious use rather than religious status suggests that even if the Court finds in Maine’s favor the risk to religious minorities posed by the Zelman/Espinoza Frankenstein’s monster could remain. Of course, states can simply not have voucher or tax credit programs for private schools – the Espinoza decision makes it clear that this is acceptable. Some states already follow this path. For example, Michigan explicitly prevents taxpayer money going to private schools regardless of whether those schools 112 Ibid. 113 Zelman at 639 (Souter, J., dissenting). 114 Zelman (Souter, J., dissenting). 115 See sources cited supra note 108. 116 Carson v. Makin, 973 F.3d 21 (1st Cir. 2020), cert granted (July 2, 2021).

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are religious or not.117 But even these bans on taxpayer funding for private education are increasingly being challenged by school voucher enthusiasts and religious groups. The Zelman/Espinoza connection is not the end of the story or the end of the risk to religious minorities. After Masterpiece Cakeshop and Roman ­Catholic Diocese v. Brooklyn, the Court will be able recharacterise or completely reject state assertions that their denial of funding is nondiscriminatory or not based on religious status. This will be tested in Carson v. Makin currently before the Court.118 Whatever the outcome in that case, however, the Masterpiece Cakeshop/ Roman Catholic Diocese v. Brooklyn rejection of state interests and recharacterisation of evidence may give states no room to try to protect religious minorities and dissenters by excluding religious schools from funding programs. It seems that federalism has no place in the current Court’s expansion of the Free Exercise antidiscrimination principle. The Carson v. Makin decision might shed some light on this but given the unique situation in Maine where that case originated, it remains unclear whether it will. Perhaps ironically, if it were not for Zelman and Espinoza, I would welcome the decision in Trinity Lutheran. The idea that government should not be allowed to discriminate against religious entities’ access to aid that has no religious content, such as playground safety, is welcomed. Yet in the world wrought by Zelman and Espinoza, where students who do not want to be proselytised and parents who do not want to sacrifice their children’s eternal souls for a voucher to a religious school that proselytises may be forced to accept substandard education in schools that have been further drained of funds and students due to a voucher program, even Trinity Lutheran seems far less innocuous. 4 Conclusion In an ironic twist the U.S. Supreme Court’s recent expansion of the anti-­ discrimination principle from Church of the Lukumi Babalu Aye119 has ­primarily benefited more dominant Christian groups and their adherents. After Espinoza, the doctrine has moved from a shield for religious minorities to a poorly wielded hammer primarily benefitting more powerful Christians groups. While

117 Constitution of the State of Michigan, Art. VIII, Sec. 2 (1963). 118 Carson v. Makin, 973 F.3d 21 (1st Cir. 2020), cert granted (July 2, 2021). 119 508 U.S. 520 (1993).

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the intent may not have been to favor dominant religions nor to discriminate against religious minorities and dissenters, the impact may do just that. Bibliography Books

Frank S. Ravitch, Freedom’s Edge: Religious Freedom, Sexual Freedom and the Future of America (Cambridge: Cambridge University Press, 2016). Frank S. Ravitch, Masters of Illusion: The Supreme Court and the Religion Clauses (New York: New York University, 2007).



Journal Articles

Frank S. Ravitch and Brett G. Scharffs, “Point-Counterpoint, Piece of Cake: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission,” Judicature 102, no. 1 (Spring 2018). Frank S. Ravitch, “A Funny Thing Happened on the Way to Neutrality: Broad P ­ rinciples, Formalism, and the Establishment Clause,” 38 Georgia. Law Review, 38 (Winter 2004).

Cases

Espinoza v. Montana Dept. of Revenue, 591 U.S. ___, 140 S. Ct. 2246 (2020). Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ____ (2020) (per curium). Dunn v. Ray, 586 U.S. ____,139 S.Ct. 661 (2019). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S.Ct. 1719 (2018). Trinity Lutheran v. Comer, ____582 U.S. ____, 137 S.Ct. 2012 (2017). Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Employment Div. v. Smith, 494 U.S. 872 (1990). Carson v. Makin, 973 F.3d 21 (1st Cir. 2020), cert granted (July 2, 2021).



Other Legal Sources



News Sources

Colorado Anti-Discrimination Act, Colorado Revised Statutes §24-34-601(2)(a)(2017). Constitution of the State of Michigan, Art. VIII, Sec. 2 (1963). Constitution of the State of Montana, Art. 10, Sec. 6 (1972).

Kevin Drum, The Cake Ruling Wasn’t “Narrow,” It Was a Punt, Mother Jones, Jun. 5, 2018. Christine Emba, The Supreme Court Wasn’t Ready to Decide on the Wedding Cake. Neither are We, Washington Post, June 5, 2018, https://www.washingtonpost.com/opinions

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/the-supreme-court-wasnt-ready-to-decide-on-the-wedding-cake-neither-are-we /2018/06/05/55c890f8-6905-11e8-bea7-c8eb28bc52b1_story.html (accessed March 6, 2022). Garrett Epps, Justice Kennedy’s Masterpiece Ruling: The Supreme Court found in favor of a baker who refused to sell a cake to a same-sex couple, but used a rationale that sheds little light on the case’s larger civil-rights implications, The Atlantic, Jun 4, 2018. Timothy R. Holbrook, Analysis: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Emory Law News Center, June 20, 2018, http://law.emory.edu/news -center/releases/2018/06/masterpiece-cake-shop-opinion-holbrook.html (last visited on Aug. 9, 2018). Abby Ohlheiser, “This Colorado baker refused to put an anti-gay message on cakes. Now she is facing a civil rights complaint,” Washington Post, Jan. 28, 2015, https://www .washingtonpost.com/news/post-nation/wp/2015/01/22/this-colorado-baker-refu sed-to-put-an-anti-gay-message-on-cakes-now-she-is-facing-a-civil-rights-com plaint/ (accessed February 25, 2022).

Chapter 9

Protection against Religious Hatred Luca Farrow and Paul Hedges 1 Introduction Religious hatred may cause great harm to individuals and communities, by ­creating or exacerbating social divisions, causing conflict, and even promoting ­physical violence. Hence the rationale and impetus for writing a chapter on protection against religious hatred. As well as addressing the issue, in legal terms, of what such protection against religious hatred looks like, we need to think more carefully about some questions: are we clear what ‘religion’ connotes; what may or may not be implied by ‘protection’; and, what may be meant by the phrase ‘religious hatred’ itself? We will address these as we proceed, helping to give some theoretical clarity and frame to what is being discussed, while remaining focused upon the practical implications. Protection against religious hatred can be understood either narrowly as the legal regulation of the manifestations of religious hatred, usually focused on prohibiting speech inciting discrimination, hostility, or violence; or understood broadly as the full range of practices, legal and non-legal, that can be employed to protect against both the development of religiously hateful ­attitudes as well as the manifestation of those attitudes. Here, we will focus predominantly on the narrower interpretation, which is nevertheless a rather complicated picture, but will note how this fits within a wider socio-political and conceptual context. To outline this chapter, after briefly considering the different possible meanings of religious hatred, we will focus on the international legal, or quasi-legal,1 rights to religious freedom and protections against religious hatred, including Article 20 of the United Nations (UN) International Covenant on Civil and Political Rights (ICCPR).2 We will illustrate that the efficacy of these international 1 By ‘quasi-legal’ we refer to resolutions, declarations, lists of rights, working definitions, and so on, which, while not imposing legally binding obligations, may nevertheless be said to establish powerful norms potentially constraining a state, an organisation, or an individual’s conduct. 2 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org /docid/3ae6b3aa0.html. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_010

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protections is often limited, with much depending on the manner in which they are incorporated – or not – within national legal frameworks. Next, we discuss the fact that much of the debate around the legal regulation of religious hatred across the globe focuses on the perceived conflict between freedom of expression on the one hand, and protection against ‘hate speech’ on the other hand. We discuss the way this balance has been struck differently in different jurisdictions. After that we will shift to a more conceptual tack to discuss the problem of defining ‘religion’, noting in particular the Western and colonial racialised framing often given to that term which has affected what is and is not protected. Finally, we will come on to explore the fact that while it makes good sense for legal regulation to focus on the limits of free expression, given that violent acts often follow from violent words, we must also face the inevitable inadequacy of legal limits on freedom of expression, noting a potentially broader understanding of protection against religious hatred. 2

What is ‘Religious Hatred’?

We will go on to scrutinise the meaning of ‘religion’ and what we mean by ‘protection’ in more depth as the chapter progresses, but let us begin by briefly considering the different ways ‘religious hatred’ can be understood.3 Perhaps the most obvious interpretation is the hatred of an individual or group on the basis of that individual or group’s religious identity. Another interpretation of religious hatred is hatred somehow arising out of, or fuelled by, an individual or group’s religious identity. So, for example, a group of Christians might locate within their Christian doctrine or practice a motivation to hate undocumented immigrants, Jews, Muslims, atheists, or even another group of Christians. There is obviously overlap between these two interpretations where the hatred emanates from an individual or group’s religious identity and is directed at another person or persons on the basis of the latter’s religious identity. Therefore, in practice, the distinction between these various forms of religious hatred may blur, but it is helpful to discuss them here so that we fully appreciate the wide range of phenomena possibly encompassed by ‘religious hatred’. A point to bear in mind is that, within this frame, non-religious individuals and groups may be targeted by religious hatred, if hatred is directed at them on the very basis of their non-religious identity. Implicit in what has been said above is that, of course, non-religious individuals and groups can also be the religious 3 For a fuller discussion, see Paul Hedges, Religious Hatred: Prejudice, Islamophobia, and Antisemitism in Global Context (London: Bloomsbury, 2021), 43–48.

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haters. For example, if a group of atheists target a religious individual or group on the basis of the latter’s religious identity. Another point worth noting here concerns the word ‘hatred’ itself. Hatred, as commonly understood, is initially merely a feeling or emotional state. To the extent it remains as such, without somehow outwardly manifesting, it is not something that legal protections typically can or seek to address, and thus will not be the focus of the chapter. From a legal perspective, protections against religious hatred are more commonly focused on acts of discrimination or violence inspired by religious hatred, or to speech which would stir up religious hatred in or towards others. Of course, governments or civil society actors may use a range of other legislative and non-legislative measures, such as promotion of interreligious dialogue, to seek to protect against the development of religiously hateful attitudes within a society, which we will briefly note at the end of the chapter. 3

The Legal and Quasi-Legal Protections

Protecting a person against hatred on the basis of their religion can be understood as necessary in ensuring that person’s right to freedom of religion or belief (FoRB), including the right to manifest their religion or belief. After all, legal or quasi-legal provisions purporting to provide a person with FoRB may be undermined if a prevailing climate of hatred and discrimination means that the person is too intimidated to practise their religion freely. While, as noted above, hatred directed toward a person on the basis of that person’s religion is not the only possible manifestation of ‘religious hatred’, it is a common form and helps to provide context to legal protections against religious hatred by illustrating the connection between religious hatred and FoRB. Given this nexus, it will be useful to begin this section with a short introduction on FoRB. The right to FoRB is a feature of many international, regional, and national human rights regimes, indeed much more commonly so than are specific protections against religious hatred. FoRB rights aim to ensure the full flourishing of religious life, including such things as the right to worship, celebrate holidays, follow prescribed diets, wear specified clothing, carry out life cycle rituals, build seminaries, have schools, and distribute texts and publications for proselytisation.4 While, as a concept, FoRB is often traced back to European Enlightenment thinkers such as John Locke, who were inspired by what they 4 See Paul Hedges, Understanding Religion: Theories and Methods for Studying Religiously Diverse Societies (Oakland, CA: University of California Press, 2021), 389–390.

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saw as the freedom of religious practice and belief that existed in the Ottoman Empire in contradistinction to the framing of Europe’s ‘wars of religion’,5 as a contemporary legal construct the UN Universal Declaration on Human Rights (UDHR)6 is foundational. Adopted by the UN General Assembly (UNGA) on 10 December 1948, against the backdrop of the Second World War and the ­Holocaust, it sought to establish common standards with regard to the dignity of all individuals, protecting their fundamental rights and freedoms, with a particular concern with vulnerable minorities. The right to FoRB is set out in Article 18 of the UDHR: Everyone has the right to freedom of thought, conscience and r­ eligion; this right includes freedom to change his religion or belief, and f­ reedom, either alone or in community with others and in public or private, to ­manifest his religion or belief in teaching, practice, worship and ­observance. Article 18 of the UDHR has been highly influential globally, though it should be noted that, as an article of a UN declaration, it does not automatically place a legally binding obligation on states.7 A similarly worded right to FoRB is also found in Article 18 of the ICCPR, which, as a UN convention, is legally binding on signatory states that have ratified it, and which we will come on to discuss in more depth below. It is worth noting that Article 18 of the UDHR inspired similar FoRB provisions in regional human rights conventions, including ­Article 9 of the European Convention on Human Rights (ECHR),8 Article 12 of 5 Some may suggest that the concept of freedom of religion was exhibited far earlier in such instantiations as the South Asian emperor Ashoka’s edicts which guaranteed a freedom for practice, belonging, and belief to many traditions. However, it is not the purpose of this ­chapter to either discuss such historical instances, nor to debate in depth what ‘religion’ might have meant across various socio-historical contexts. 6 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html. 7 UNGA declarations and resolutions are not generally legally binding on member states. ­Nevertheless, they are sometimes referred to as ‘soft law’ and if all or a majority of member states declare that a UNGA resolution is a legally binding norm, it may become ‘general practice accepted as law’ or opinio juris. The legal impact of a UNGA resolution is likely to be greater where its language is precise and it was adopted by a large majority of states. For a useful overview, see Medicins Sans Frontieres, “The Practical Guide to Humanitarian Law: Soft Law”, available at https://guide-humanitarian-law.org/content/article/3/soft-law/. 8 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: https:// www.refworld.org/docid/3ae6b3b04.html.

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the American Convention on Human Rights,9 Article 8 of the African Charter on Human and Peoples’ Rights,10 and Article 30 of the Arab Charter on Human Rights.11 Of course, while the language in each of these Articles is very similar, the way in which it is interpreted, and the extent to which it provides a strong guarantee of FoRB, varies across the globe and also within regions, with much depending on the national context, which will be a recurrent theme in this chapter. While Article 18 of the UDHR (or a regional equivalent) is often cited on its own with regard to FoRB, it exists within a wider framework of rights pertaining to the treatment of religious groups and of relevance to protecting individuals against religious hatred. In the UDHR, this includes Article 2, which establishes that all people are entitled to the rights described in the UDHR, regardless of their race, religion or location, Article 3, which provides that everyone has the right to life, liberty, and the security of the person, and Article 7, which states that everyone is entitled, without any discrimination, to equal protection of the law and against any discrimination in violation of the UDHR. It is worth mentioning two important themes of human rights protection that will be relevant when we come to discuss protection against religious hatred in more depth. Firstly, that those human rights which are not ‘absolute rights’ are subject to limitations,12 which may be set out in the same article as the right itself, or in a separate article of general applicability to the relevant human rights document overall. For an example of the latter, Article 29(2) of the UDHR states: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 9 10 11 12

Organization of American States, American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, available at: https://www.refworld.org/docid/3ae6b36510 .html. Organization of African Unity, African Charter on Human and Peoples’ Rights, “Banjul Charter”, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www .refworld.org/docid/3ae6b3630.html. League of Arab States, Arab Charter on Human Rights, 15 September 1994, available at: https://www.refworld.org/docid/3ae6b38540.html. Which human rights are absolute differs across human rights documents but generally would include, for example, freedom from slavery and freedom from torture. These rights cannot be properly subject to any limitation.

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This means that it may be perfectly in line with the UDHR for a state to legislate to limit, for example, a person’s freedom of expression (UDHR Article 19) in the event that that person uses their right to free expression in order to stir up religious hatred, on the ground that such stirring up may threaten public order; alternatively, on the ground that incitement to violence against another person potentially violates the latter’s right to life, liberty and security (UDHR Article 3). This goes to our second theme, which is that given the co-existence of many different human rights, rights sometimes appear to be in competition with each other,13 and ultimately a court may need to balance one person’s right to X, against another person’s right to Y. Having set out the international human rights context, let us now turn to the more specific rights protecting against religious hatred. Prominent among these is Article 20(2) of the ICCPR, which states: Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The target of Article 20 then is advocacy of one or more of three forms of hatred: national, racial, and religious. These could, of course, be covered by a single statement as national, racial and religious identities may overlap a great deal.14 The advocacy covered by Article 20 is that which incites discrimination, hostility, or violence. For convenience, we will sometimes refer to such advocacy in this chapter by the shorthand ‘hate speech’, and it is a phrase often used in legal instruments and scholarship dealing with protection against religious hatred, but it is important to note that outside of this context ‘hate speech’ is used variously and has a contested meaning. Definitions are not provided in the ICCPR, but according to the Office of the UN High Commissioner for Human Rights (OHCHR), ‘hatred’ and ‘hostility’ refer to “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”; ‘advocacy’ requires “an intention to promote hatred publicly towards the target group”; and ‘incitement’ “refers to statements about national, racial or religious groups, which create an imminent risk of discrimination, hostility or violence 13

14

It is not uncommon to hear assertions that two or more rights, even within the same human rights document, contradict each other, or are incompatible with each other. This might lead to attempts to formulate a hierarchy of human rights in order to establish which right should take precedence. In general, the better view is to see the various human rights as interdependent, sometimes requiring a balancing act in determining the priority of competing rights in a given context. For a discussion of religious hatred as racial hatred, see Hedges, Religious Hatred, 83–98.

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against persons belonging to those groups”.15 We will not focus on discrimination (which is covered generally by ICCPR Article 26) because it is the focus of another chapter in the present volume, but it is clear that in the context of Article 20, discrimination refers to something worse than simply differentiation of treatment on the basis of religion, race, or nationality. The rationale for ICCPR Article 20 was not to protect ‘religion’ itself, but to protect people from discrimination, hostility, or violence on the basis of religion. It was not intended, therefore, to protect religions themselves from criticism, even ridicule, nor indeed to prohibit blasphemy,16 though such expressions could be caught by Article 20 to the extent that they also constitute prohibited incitement. The UN Human Rights Committee (HRC) has gone as far as to say: Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant… Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.17 ICCPR Article 20 provides a positive obligation on signatory states to ensure that their legal regimes include provisions prohibiting such advocacy of hatred, and if they do not, to legislate to introduce such provisions. The obligation to provide domestic legal protections is of paramount importance because, for a plethora of reasons, not least among them viability of enforcement and the expense of conducting legal proceedings, it is generally much more practicable for a person to avail themselves of domestic legal rights than rights that exist only at the international level. As noted above, unlike the UDHR, the ICCPR is binding on signatory states that have ratified it, and thus carries some legal 15

16 17

OHCHR, “One-pager on “incitement to hatred”, available at: https://www.ohchr.org /Documents/Issues/Opinion/Articles19-20/ThresholdTestTranslations/Rabat_threshold _test.pdf. These definitions derive from Article XIX, Camden Principles on Freedom of Expression and Equality (London, April 2009), principle 12, available at: https://www .article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf. As blasphemy is the subject of another chapter in the current volume, we will not discuss it in depth in this chapter. UN Human Rights Committee, General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34, paragraph 48, available at: https://www .refworld.org/docid/4ed34b562.html.

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weight in addition to the significant persuasive power that such a prominent UN human rights document necessarily exerts on national ­governments. However, in assessing the effectiveness of the ICCPR in protecting against religious hatred on a global scale, we must not forget that it is not binding on non-­signatory states. Singapore,18 for example, is not a signatory to the convention and thus is not bound by it to prohibit such hateful advocacy. By way of c­ ontrast, the United Kingdom is a signatory to the ICCPR but it entered a reservation when it ratified the convention, which included the following statement: The Government of the United Kingdom interpret article 20 consistently with the rights conferred by articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislation…19 We will come on to discuss the significance of the United Kingdom’s reference to ICCPR Article 19 below, but here we simply note that the ability of the United Kingdom to enter a reservation limiting its obligations under ICCPR Article 20 demonstrates a limitation of the effectiveness of the international legal regime. Indeed, the HRC, established by ICCPR Article 28 to monitor states parties’ implementation of the convention, has commented that “The n ­ umber of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States parties”.20 18

19 20

From where the authors write. Though Singapore has not signed up to the ICCPR, this does not reflect a reluctance to implement protections against hate speech. On the contrary, Singapore limits expressions related to race and religion to a greater extent than many ICCPR signatory states. The point being made here is simply the inherent limitation of the ICCPR that it only binds states that have ratified it. On how Singapore manages its interreligious diversity with regards to legislation, see Paul Hedges and Mohamed Imran Mohamed Taib, “Singapore’s Interfaith Movement,” in The Interfaith Movement, eds. John Fahy and Jan-Jonathan Bock (New York: Routledge, 2019): 140–142. The full list of ICCPR declarations and reservations is available on the United Nations Treaty Collection website: https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4 &clang=_en&mtdsg_no=IV-4&src=IND [accessed 21 February 2022]. UN Human Rights Committee, CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/ Rev.1/Add.6, paragraph 1, available at: https://www.refworld.org/docid/453883fc11.html. The HRC also notes, at paragraph 8, that “provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the

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While the ICCPR is technically legally binding on signatory states, the v­ iability of enforcing a state’s obligation to provide the legal protection required by Article 20 is a separate question. The possibility of uneven domestic implementation of the ICCPR was envisaged by the drafting of ICCPR Optional Protocol 1, which allows individuals in signatory states to appeal in communications directly to the HRC. However, a large number of states, including the United Kingdom, have not signed up to Optional Protocol 1. Moreover, the communications and final decisions of the HRC are not legally binding. While it may, in theory, be possible for the International Court of ­Justice (ICJ) to hear cases related to a state’s failure in its obligations under the ICCPR, a case would have to be brought by another state, as individuals do not have direct standing before the ICJ, and states can only be judged by the ICJ with their prior consent. So, to spell out one of the major limitations of the international human rights regime: the difficulty of enforcing human rights, and the lack of meaningful penalties on states for failing to guarantee rights, means that states are more likely to prioritise domestic political concerns, or geopolitically expedient actions, as the case may be, over the human rights of people in their territories. Though it is the most prominent, the ICCPR is not the only significant UN document relevant to protection against religious hatred. The UNGA declared in the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief that it was concerned by “manifestations of intolerance and by the existence of discrimination in matters of religion or belief still in evidence in some areas of the world”. It resolved to adopt all necessary measures to eliminate such intolerance and discrimination.21 Unfortunately, unlike the 1963 Declaration on the Elimination of All Forms of Racial Discrimination,22 which was followed by the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),23 the 1981 Declaration has not yet been followed up by any convention.

21 22 23

right to… permit the advocacy of national, racial or religious hatred”. But it is not in fact clear that the prohibition of the advocacy of hatred represents customary international law, apart from the obligation in ICCPR 20(2). UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55, available at: https://www.refworld.org/docid/3b00f02e40.html. UN General Assembly, United Nations Declaration on the Elimination of All Forms of Racial Discrimination, 20 November 1963, A/RES/1904, available at: https://www.refworld.org /docid/3b00f06558.html. UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, A/RES/2106, available at: https://www.refworld.org /docid/3b00f1931c.html.

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It has been argued that ICERD provides some protection against religious hatred by analogy, and we have already noted that racial and religious hatreds can overlap. ICERD Article 1 defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”, which would appear not to clearly cover religion, though the argument has been made that “in the case of race and religion as grounds of hostility or hatred, the parallelism seems reasonable”.24 In any case, the ­language of ICERD Article 4 helps to illustrate the limited scope of ICCPR ­Article 20. ICERD Article 4 obliges signatory states to outlaw “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race” (our emphasis). By contrast, ICCPR Article 20 does not mandate the prohibition of merely exclusivist, intolerant, or supremacist statements unless they can be shown to be statements of hatred that incite further hostility, discrimination, or violence. There have been various other UNGA resolutions seeking to strengthen the norm against advocacy of religious hatred. Human Rights Council (distinct from the HRC) Resolution 16/18, adopted on 24 March 2011, expressed concern that: incidents of religious intolerance, discrimination and related violence, as well as of negative stereotyping of individuals on the basis of religion or belief, continue to rise around the world, and condemns, in this context, any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence, and urges states to take effective measures…to address and combat such incidents.25 UNGA Resolution 66/168, adopted on 19 December 2011, specifically noted deep concern about “the overall rise in instances of intolerance and violence,

24

25

Natan Lerner, “Freedom of expression and advocacy of group hatred: Incitement to hate crimes and religious hatred,” Conference room paper for the Office of the United Nations High Commissioner for Human Rights’ expert seminar on the links between Articles 19 and 20 of the International Covenant on Civil and Political Rights: “Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence” (2–3 October 2008): 93, available at: https://www.ohchr.org/Documents /Issues/Expression/ICCPR/Seminar2008/CompilationConferenceRoomPapers.pdf. UN Human Rights Council, Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief, 12 April 2011, A/HRC/RES/16/18, available at: https://www.refworld.org /docid/4db960f92.html.

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including cases motivated by Islamophobia, anti-Semitism and Christianophobia”.26 As recently as January 2022, in a resolution on Holocaust denial, the UNGA expressed that it is: Deeply concerned about the prevalence of impunity in some instances, and the lack of accountability in some cases, in addressing violence against persons on the basis of religion or belief in public and private spheres, and stressing the importance of making the necessary efforts to raise awareness to address the spread of hate speech against persons on the basis of religion or belief.27 4 The ‘Conflict’ between Prohibitions on Hate Speech and Freedom of Expression As foreshadowed by the reference to Article 19 of the ICCPR in the United ­Kingdom’s Article 20 reservation discussed above, the perceived conflict between the Article 19 right to freedom of expression and the Article 20 ­mandate to prohibit incitement has been a major theme of legal debates ­surrounding the implementation and enforcement of hate speech laws in states bound by the ICCPR.28 Article 19(2) states: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

26 27

28

UN General Assembly, Resolution 66/168 Adopted by the UN General Assembly: Elimination of all forms of intolerance and discrimination based on religion or belief, 11 April 2012, A/ RES/66/168, available at: https://digitallibrary.un.org/record/724798?ln=en. UN General Assembly, Resolution 76/250 Adopted by the UN General Assembly: Holocaust denial, 20 January 2022, A/RES/76/250, available at: https://digitallibrary.un.org /record/3956241?ln=en. This follows UNGA Resolutions 60/7 on Holocaust remembrance (UN Doc. A/RES/60/7, 21 November 2005), available at: https://digitallibrary .un.org/record/559922?ln=en, and 61/255 on Holocaust denial (UN Doc. A/RES/61/255, 22 March 2007), available at: https://digitallibrary.un.org/record/591884?ln=en. The perceived conflict between protecting free expression and prohibiting hate speech has been a major theme of legal and political debates globally, relating to a wide range of laws, even in states not bound by the ICCPR.

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Policy makers and courts are obliged to ensure that limitations on freedom are exceptional, but most experts do not see a conflict between Articles 19 and 20 and identify them as interdependent.29 Article 19(3) permits restrictions to freedom of expression which are provided by law, and necessary, for the respect of the rights or reputations of others; or for the protection of national security, public order, public health, or morals. Therefore, it is possible to see Article 20(2) prohibitions as complementing Article 19(3). The balance between freedom of expression and protections against hate speech has been struck differently in different national jurisdictions. At one end of the spectrum we may place the United States, where, to protect freedom of speech, courts are likely to strike down any restrictions on hate speech unless the hate speech is an incitement to violence that is likely to occur imminently.30 Towards the opposite end of the spectrum are European states such as France and Germany where restrictions on hate speech are relatively stronger. These differing approaches likely reflect the historical contexts of these jurisdictions. Continental Europe witnessed large scale conflict and the Holocaust in the twentieth century. Hate speech, then predominantly towards Jews, was seen as the precursor to horrific physical violence. The lesson that has been learned in much of Europe therefore is to robustly clamp down on hate speech before it progresses to something even worse. As mentioned above, there are regional human rights regimes which echo many of the rights in the UDHR and ICCPR, with one notable example being the ECHR. While the ECHR does not contain an equivalent provision to Article 20 of the ICCPR, the European Court of Human Rights (Strasbourg Court) has on numerous occasions been asked to balance the right to freedom of expression in ECHR Article 10 with the right to religious freedom in ECHR Article 9. It has been argued before the court, with some success, that certain speech hostile to a particular religion has infringed the religious freedom of adherents of that religion.31 Again, it is likely the European historical context that explains the Strasbourg Court’s relative willingness to restrict expression. Indeed, the Strasbourg Court has been criticised for developing notions of ‘respect for religions’ or ‘respect for people’s religious feelings’ as grounds for limiting free expression or even as rights in themselves. These criticisms note that the HRC, in hate speech cases that 29 30 31

See Conference room paper, supra note 24. The United States entered a reservation to the ICCPR stating “article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States”. See, for example, Strasbourg Court, Application no. 13470/87, Otto Preminger-Institute v. Austria, judgment of 20 September 1994.

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have been referred to it, has identified no such grounds. Critics have pointed out that “too broad a right to freedom of religion or belief as a right to respect for one’s religion also jeopardises the right to freedom of religion or belief itself (as the very exercise of one’s religion in a certain fashion might be considered heretical in the eyes of another person – something that clearly is not a valid reason for limiting the forum externum of the former)”.32 Even among the 47 states subject to the ECHR, there are great divergences as to the relative weight given to restrictions on hate speech and freedom of speech. In the United Kingdom, the courts have been less ready to restrict speech than in France or Germany. Among other groups in the United K ­ ingdom, Christian campaigners sought to oppose the introduction of the Racial and Religious Hatred Act 2006, which created a group of criminal offences of stirring up religious hatred, and argued, controversially, that the proposed legislation would make it unlawful to criticise other religions and to evangelise their own faith. Ultimately, a “Protection of freedom of expression” clause was included in the Act, which states: Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ­ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief ­system.33 The relatively permissive approach in the United Kingdom contrasts greatly with the approach, for example, in Singapore. Amongst other domestic ­legislation limiting expression likely to be religiously sensitive, the S­ ingaporean Penal Code makes the following offences: 298: Whoever, with deliberate intention of wounding the religious or racial feelings of any person, utters any word or makes any sound in the hearing of that person…

32 33

Jeroen Temperman and Joseph Powderly, “Protection against Religious Hatred under the UN ICCPR and the European Convention System,” Human Rights, 10.2 (2015): 137. Schedule to Racial and Religious Hatred Act 2006, available at: https://www.legislation .gov.uk/ukpga/2006/1/schedule [accessed 28 February 2022].

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298A: Whoever — (a) by words, either spoken or written…knowingly promotes or attempts to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill will between different religious or racial groups; or (b) commits any act which he knows is prejudicial to the maintenance of harmony between different religious or racial groups and which disturbs or is likely to disturb the public tranquillity.34 This restrictive approach reflects a strong desire in Singapore to maintain racial and religious harmony in, arguably, the most religiously diverse state in the world, and to avoid a repeat of the riots that took place there in the middle decades of the twentieth century, including on 21 July 1964, when Chinese and Malay groups clashed during a celebration of the birthday of the Prophet Muhammad. In 2011 and 2012, the OHCHR organised a series of expert workshops to examine “legislation, jurisprudence, and national policies with regard to the prohibition of national, racial, or religious hatred as reflected in international human rights law”.35 This culminated in the Rabat Plan of Action which suggested that, in order to ensure that restrictions on freedom of expression remain exceptional, a six part threshold test would need to be fulfilled in order for a statement of incitement to amount to a criminal offence. Firstly, context needs to be taken into account; secondly, the speaker’s position in society should be considered; thirdly, intent, rather than mere negligence or recklessness, of the speaker must be shown; fourthly, the content and form of the speech must be analysed; fifthly, the reach of the speech act is relevant; finally, the likelihood, including imminence, of harmful action flowing from the incitement is important. This high threshold supports the arguments of scholars such as Nazila Ghanea, who has argued that for Article 20 of the ICCPR to override Article 19, it will generally require “a pattern, if not long history, of gross human rights violations against a particular minority group.”36 34 35

36

Singapore Penal Code 1871, as amended, available at: https://sso.agc.gov.sg/Act/PC1871 ?WholeDoc=1#pr298- [accessed 28 February 2022]. UN Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights – Addendum – Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, 11 January 2013, A/HRC/22/17/Add.4, available at: https://www.ohchr.org /Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf. Nazila Ghanea, “Minorities and Hatred: Protections and Implications,” International ­Journal on Minority and Group Rights, 17.3 (2010): 435.

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A Socio-Political Decolonial Conceptual Frame

As American criminologist Biko Agozino, amongst others, has noted, legal and criminal justice schemes are often embedded in racist and colonial regimes of power that uphold what may be termed epistemic injustice.37 That the law is not a neutral tool and may privilege certain elites has, of course, long been a critique going back to at least the time of Karl Marx. However, our concern here is not to question the legal system itself, but rather the socio-cultural frames in which we think about ‘religious hatred’. Back in the early 1960s, scholar of religion Wilfred Cantwell Smith noted that the English language nomenclature ‘religion’ had no natural equivalence in most languages (outside of modern European ones), and that the term itself had very different meanings even in English before around the eighteenth century.38 Taking on board further scholarship since then, which has importantly thrown light on how a Western Protestant Christian conception of ‘proper’ religion has been spread globally by colonialism,39 the significance of this for our purposes is at least threefold. Firstly, most cultures have not had the language to name and define a discrete and particular aspect of their forms of behaviour and ideology as ‘religion’ as distinct from other areas of life. As such, defining and naming certain aspects of the world as being ‘religion’ enforces a modern, Western, and distinctly Protestant Christian worldview and division onto various traditions which may not fit their own ways of seeing the world. Secondly, and following from the first, the modern, Western, and again Protestant, binary of ‘religion’ and ‘secularism’ is only the way one part of the world makes sense of the boundaries and divisions between these two spheres, rather than being a natural breakage between two distinct realms of culture. Thirdly, those things which we may define as ‘religious’ but which do not, for various reasons, fit closely enough with how modern, Western, Protestant men have typically understood ‘religion’ will typically be defined via other nomenclature, which may include such terms as ‘superstition’, ‘magic’, and ‘cult’. It has certainly been argued that scholars and students of interreligious studies who seek to understand the dynamic encounters of traditions in society need to understand the

37 38 39

See Biko Agozino, Black Women and the Criminal Justice System: Towards the ­Decolonisation of Victimisation (Aldershot: Ashgate, 1997); see also Biko Agozino, “Theorizing Otherness, the War on Drugs and Incarceration,” Theoretical Criminology 4.3 (2000): 359–376. Wilfred Cantwell Smith, The Meaning and End of Religion (London: SPCK, 1978 [1962]). For a survey of debates on the term ‘religion’, see Hedges, Understanding Religion, 19–35.

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legal implications of what religion means,40 but equally students and scholars of law need to understand the religious studies scholarship behind this. The important takeaway is that only certain types of things get to be classified as ‘religion’ and protected against ‘religious hatred’. A good case in point are Native American traditions,41 which were typically framed within the United States as ‘superstition’ and therefore practices such as ritualised dances were not protected, but instead demeaned and even met with hostility. It took until 1978 for the United States courts to widely recognise Native American practices and ideological frames as religion and protected by longstanding FoRB provisions. However, to recognise certain practices as examples of ‘religion’ may be problematic for a different reason. To demarcate an aspect of a people’s culture as being ‘religion’ may do conceptual violence to the indigenous lifeworld of those people because such practices may cross over with their other socio-­ political practices and areas of life. Placing certain practices within the religion box creates an unnatural fissure within the worldview and understanding of those groups. In truth, there is not simply a natural and universal sphere or realm of ‘religion’ waiting out there to be recognised and located; rather it is only an aspect of a particular form of socio-political discourse. We must, however, be careful not to overstate this. While some radical deconstructionist framings of the scholarship suggest that the definition of ‘religion’ is merely an ‘arbitrary’ pairing off of certain parts of human culture, making the word inherently unstable, politically suspect, and meaningless (in part because it can be filled with an excess of meaning), we must not forget that all words exist within socio-political contexts. As such, a usage of ‘religion’ as an ‘essentially contested concept’ has been advanced, arguing that various human traditions exist which have interacted as somewhat equivalent spheres over time and space (including outside of Western colonial spheres of influence), and that also relate conceptually in certain ways, including in an orientation to what may broadly be termed ‘transcendence’. Thus, we do not argue 40 41

See Paul Hedges and Yue Liu, “Interreligious Studies, Law, and Freedom of Religion and Belief,” in Georgetown Companion to Interreligious Studies, ed. Lucinda Mosher (­Washington D.C.: Georgetown University Press, 2021): 99–107. For sources on this discussion, see Robert F. Berkhofer, The White Man’s Indian: Images of the American Indian from Columbus to the Present (New York: Random House, 1979), Tzvetan Todorov, The Conquest of America: The Question of the Other (New York: Harper and Row, 1984), and Tink Tinker (wazhazhe udsethe, Osage Nation), “Religious Studies: The Final Colonization of American Indians,” Religious Theory (1 and 9 June 2020), a­ vailable at: http://jcrt.org/religioustheory/2020/06/01/religious-studies-the-final-­colonization-of -american-indians-part-1-tink-tinker-wazhazhe-udsethe. For a brief summary, see Hedges, Understanding Religion, 183, box 7.9.

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that speaking of ‘religious hatred’ is inherently meaningless because ‘religion’ is an inherently meaningless term. Despite the conceptual issues raised herein, we must deal with the social reality of what ‘religion’ means and is defined as within legal systems. Yet, even as we do, so we must be aware that it is a usage that is racialised, gendered, class-centric, and colonial.42 We cannot enter into the background here, but in short in both historical and contemporary context, very often religion (or, rather, ‘protected religion’) is what white bodies do (rather than brown or black bodies) what men do (rather than women), what elites and middle-class people do (rather than ­working-class or subaltern groups), and, is defined from Western, Protestant centres of power rather than understood from the margins or periphery. We may usefully see the problem encapsulated in what is termed the World ­Religions Paradigm (WRP), which defines how ‘proper’ religion is often ­perceived. While variously defined,43 in general the WRP delimits religion as: textual, that is originating from and centred upon a particular text, or texts, that define correct belief and practice; belief-centric, so religion is about what people think, or creedal statements, rather than what they do or how they behave; inward focused, so about personal rather than communal commitment, and may be focused especially on ethics, without straying into matters of the public sphere; bounded, so each religion has clear markers that define the ‘believers’ of one religion against the ‘believers’ of another, which may be through texts, creeds, and so on. In scholarly terms, this is wrong on so many levels that it is difficult to unpack the issues here, but in brief: texts are often not central to religions and their practice, and some do not have texts; in many religions, practice and community belonging matters far more than correct beliefs, while doctrines or concepts may be flexible or varied; religion often focuses on outer manifestations and community rather than the inner, and may regulate many areas of life; every religion is syncretic to its core, and forms of multiple identity or belonging are common or normative in various contexts. All of this is of legal consequence as it affects the determination by legislators and policy makers of what gets protected as religion. Implicit in what has been noted above, and may be drawn out explicitly here is what Silvio Ferrari notes as a distinction between understanding religion as internal form (forum internum) which tends to be favoured

42 43

See, variously, Hedges, Understanding Religion, chapters 1, 3, 7, 10, and 18. The classic study of these debates on defining the ‘world religion’ in nineteenth century Western scholarship is Tomoko Masuzawa, The Invention of World Religions (Chicago: ­Chicago University Press, 2005).

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in secular governance, and as external form (forum externum).44 The latter is less likely to benefit from protections against religious hatred. The determination of what counts as religion has been relatively straightforward in some cases, for instance relating to mainstream Christian practice. The case of Judaism and protection against antisemitism has been more complicated. Historically, and still today, representations of Judaism as such things as religion, ethnicity, nationality, and culture give rise to the potential for certain forms of antisemitism to not register as ‘religious hatred’ per se.45 In today’s context, despite being the tradition of around one billion of the world’s population, and the second largest religion after Christianity, it is Islam which most often becomes problematised, especially as it has become increasingly securitised post 9/11. Indeed, what we may term devotional practices such as growing beards, mosque attendance, and Quran reading have been seen as signs of radicalisation in an atmosphere of Islamophobic religious hatred which has threatened the way Muslims may freely practice their faith. Who gets to decide what religion is and what counts as religion is therefore not just a conceptual issue for scholars to debate but a wider socio-political issue with definite legal consequences. 6

The Limits of Law

In 2019, the UN launched its Strategy and Plan of Action on Hate Speech, which aimed to “address root causes and drivers of hate speech” and “enable effective UN responses to the impact of hate speech on societies”. In it, the UN ­Secretary-General states “the UN supports more speech, not less, as the key means to address hate speech” and also that “tackling hate speech is the responsibility of all – governments, societies, the private sector, starting with individual women and men”.46 This helps us to see the limitations of using legal regulations of hate speech as a means to protect against religious hatred. There are many limitations but we will focus on just a few of them here.

44 45 46

Silvio Ferrari, “Law and Religion in a Secular World: A European Perspective,” Ecclesiastical Law Society, 14.3 (2012): 355–370. On this relationship, see also Hedges, Understanding Religion, 380, 391. On how these become conflated in definitions of Judaism and so relate to antisemitism, see Hedges, Religious Hatred, especially 90–94, 113–117. United Nations Strategy and Plan of Action on Hate Speech, May 2019, available at: https://www.un.org/en/genocideprevention/documents/advising-and-mobilizing /Action_plan_on_hate_speech_EN.pdf.

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There is the danger identified by Deborah Lipstadt when she noted that legal restraints imposed on Holocaust deniers may transform them into martyrs on the altar of free speech.47 The perception of overzealous restrictions on speech can, paradoxically, increase the attention given to those who would incite hatred. Sometimes it may better to allow fringe viewpoints to be aired in order that they are ‘defeated’ in a ‘competition of ideas’. However, we must acknowledge that this runs the risk of allowing hateful rhetoric an opportunity to take hold in a society, especially if the consumers of such rhetoric are not well equipped to critically scrutinise it. Crucially, apart from the conceptual issues raised as to how to decide on what traditions constitute ‘religions’ and are to be protected, and leaving aside the difficulty for individuals of enforcing their legal rights, we see that legal regulations are inherently limited in a broader sense. Laws can be effective mainly at targeting the significant manifestations of hateful attitudes, often once they are already well entrenched. Laws can of course help to punish and disincentivise people from making statements of incitement but, realistically, they can do little more broadly to prevent the development of exclusivist, intolerant, and hateful attitudes that might be encouraged in families, schools, or in workplaces. The situation is made worse by the fact that certain contemporary political movements and their leaders appear to be working to erode norms of tolerance and indeed to capitalise on hatred towards minority groups for their own gain. Therefore, non-legal means of protecting against religious hatred are of great importance. Education initiatives, interreligious, or inter-worldview, dialogues and, more broadly, efforts to bring people of ­different backgrounds into regular contact with one another in settings conducive to community building are valuable.48 Arguably, promoting interreligious dialogue has become the default position of secular societies in relation to religious diversity, though how far this may promote social cohesion is a 47

48

Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (New York: Plume, 1994), 220. For further debate on regulating religious hatred and the ­pitfalls of legal regulations, see Paul Hedges and Luca Farrow, “Interlude 4: Can We Regulate ­Religious Hatred”, in Hedges, Religious Hatred, 195–201. On some initiatives in this context, see Gary Bouma, Rod Ling, and Anna Halafoff, “The Impact of Religious Diversity and Revitalization on Inter-religious Education for ­Citizenship and Human Rights”, in International Handbook of Inter-religious Education, eds. Kath Engbretson, Marian de Souza, Gloria Durka, and Liam Gearon (New York: Springer): 1053–1070; Anna Halafoff, “Riots, Mass Casualties, and Religious Hatred: Countering Anticosmopolitan Terror through Intercultural and Interreligious Understanding,” in Controversies in Contemporary Religion, vol. 2, ed. Paul Hedges (Santa Barbara, CA: Praeger, 2014): 293–312, and Hedges, Religious Hatred, 205–209.

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question itself, as is the wider issue of how best to build towards cohesion in a globalised and religiously diverse world.49 Such efforts form part of the soft upstream management seeking to counter or prevent religious hatred. 7 Conclusion In this chapter, we have endeavoured to show that despite clear and seemingly strong international regulations providing protection against religious hatred, these protections are not as strong as they may seem. Reasons for this include the fact that international legal and quasi-legal protections against hate speech have not been implemented by all nation states and even in those where they have, individuals may be unable to enforce their rights domestically. Furthermore, protections against religious hatred are interpreted differently across jurisdictions according to the priority that is given to protecting freedom of speech. We have also undertaken a deeper conceptual analysis to highlight that the determination of what properly constitutes religion, and thus religious hatred, often rests on problematic assumptions. Finally, we argued that, apart from definitional issues and the difficulty of enforcing rights, legal protections are an inherently limited means of combatting hatred. While enumerated as distinct points, each of these overlaps with the others. Bibliography Books

Agozino, Biko. Black Women and the Criminal Justice System: Towards the Decolonisation of Victimisation. Aldershot: Ashgate, 1997. Berkhofer, Robert F. The White Man’s Indian: Images of the American Indian from Columbus to the Present. New York: Random House, 1979. 49

See, on these various points: Paul Hedges, “The Secular Realm as Interfaith Space: ­ iscourse and Practice in Contemporary Multicultural Nation-States,” Religions (2019), D DOI: https://doi.org/10.3390/rel10090498; Paul Hedges, “Can Interreligious Dialogue Provide a New Space for Deliberative Democracy in the Public Sphere?: Philosophical Perspectives from the Examples of the UK and Singapore,” Interreligious Studies and Intercultural Theology, 2.1 (2018): 5–25; Julia Martínez-Ariño, “Governing religious diversity in cities: critical perspectives,” Religion, State & Society, 47:4–5 (2019): 364–373; and, Paul Hedges, “Conceptualising Social Cohesion in Relation to Religious Diversity: Sketching a Pathway in a Globalised World,” Interreligious Relations, 16 (2020), available at: https:// www.rsis.edu.sg/wp-content/uploads/2020/07/IRR-Issue-16-May-2020.pdf.

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Hedges, Paul. Religious Hatred: Prejudice, Islamophobia, and Antisemitism in Global Context. London: Bloomsbury, 2021. Hedges, Paul. Understanding Religion: Theories and Methods for Studying Religiously Diverse Societies. Oakland, CA: University of California Pres, 2021. Lipstadt, Deborah. Denying the Holocaust: The Growing Assault on Truth and Memory. New York: Plume, 1994. Masuzawa, Tomoko. The Invention of World Religions. Chicago: Chicago University Press, 2005. Smith, Wilfred Cantwell. The Meaning and End of Religion. London: SPCK, 1978 [1962]. Temperman, Jeroen, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination. Cambridge: Cambridge University Press, 2016. Todorov, Tzvetan. The Conquest of America: The Question of the Other. New York: Harper and Row, 1984.



Book Chapters

Bouma, Gary, Rod Ling, and Anna Halafoff. “The Impact of Religious Diversity and Revitalization on Inter-religious Education for Citizenship and Human Rights.” In International Handbook of Inter-religious Education, edited by Kath Engbretson, Marian de Souza, Gloria Durka, and Liam Gearon, 1053–1070. New York: Springer. Halafoff, Anna. “Riots, Mass Casualties, and Religious Hatred: Countering Anticosmopolitan Terror through Intercultural and Interreligious Understanding.” In ­Controversies in Contemporary Religion, vol. 2, edited by Paul Hedges, 293–312. Santa Barbara, CA: Praeger, 2014. Hedges, Paul and Yue Liu, “Interreligious Studies, Law, and Freedom of Religion and Belief.” In Georgetown Companion to Interreligious Studies, edited by Lucinda Mosher, 99–107. Washington D.C.: Georgetown University Press, 2021. Hedges, Paul and Mohamed Imran Mohamed Taib. “Singapore’s Interfaith Movement.” In The Interfaith Movement, edited by John Fahy and Jan-Jonathan Bock, 139–157. New York: Routledge, 2019.

Articles

Agozino, Biko. “Theorizing Otherness, the War on Drugs and Incarceration.” T ­ heoretical Criminology, 4.3 (2000): 359–376. Ferrari, Silvio. “Law and Religion in a Secular World: A European Perspective.” ­Ecclesiastical Law Society, 14.3 (2012): 355–370. Ghanea, Nazila. “Minorities and Hatred: Protections and Implications.” International Journal on Minority and Group Rights, 17.3 (2010): 423–446. Hedges, Paul. “Can Interreligious Dialogue Provide a New Space for Deliberative Democracy in the Public Sphere?: Philosophical Perspectives from the Examples of the UK and Singapore.” Interreligious Studies and Intercultural Theology, 2.1 (2018): 5–25.

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Hedges, Paul. “Conceptualising Social Cohesion in Relation to Religious Diversity: Sketching a Pathway in a Globalised World.” Interreligious Relations, 16 (2020), ­available at: https://www.rsis.edu.sg/wp-content/uploads/2020/07/IRR-Issue-16 -May-2020.pdf. Hedges, Paul. “The Secular Realm as Interfaith Space: Discourse and Practice in Contemporary Multicultural Nation-States.” Religions (2019), DOI: https://doi.org /10.3390/rel10090498. Martínez-Ariño, Julia. “Governing religious diversity in cities: critical perspectives.” Religion, State & Society, 47.4–5 (2019): 364–373. Temperman, Jeroen and Joseph Powderly. “Protection against Religious Hatred under the UN ICCPR and the European Convention System.” Human Rights, 10.2 (2015): 119–138. Tinker, Tink (wazhazhe udsethe, Osage Nation). “Religious Studies: The Final ­Colonization of American Indians.” Religious Theory (1 and 9 June 2020), available at: http://jcrt.org/religioustheory/2020/06/01/religious-studies-the-final-colonization -of-american-indians-part-1-tink-tinker-wazhazhe-udsethe.



Cases



National Instruments



International Instruments

European Court of Justice, Application no. 13470/87, Otto Preminger-Institute v. Austria, judgment of 20 September 1994.

Racial and Religious Hatred Act 2006, 2006 Chapter 1, available at: https://www .legislation.gov.uk/ukpga/2006/1/schedule [accessed 28 February 2022]. Singapore Penal Code 1871, as amended, available at: https://sso.agc.gov.sg/Act/PC1871 ?WholeDoc=1#pr298- [accessed 28 February 2022].

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950. League of Arab States, Arab Charter on Human Rights, 15 September 1994. Organization for American States, American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969. Organization of African Unity, African Charter on Human and Peoples’ Rights, “Banjul Charter”, 27 June 1981. UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981. UN General Assembly, International Covenant on Civil and Political Rights, 16 D ­ ecember 1966. UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965.

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UN General Assembly, Resolution 66/168 Adopted by the UN General Assembly: ­Elimination of all forms of intolerance and discrimination based on religion or belief, 11 April 2012, A/RES/66/168, available at: https://digitallibrary.un.org/record/724798 ?ln=en. UN General Assembly, Resolution 76/250 Adopted by the UN General Assembly: Holocaust denial, 20 January 2022, A/RES/76/250, available at: https://digitallibrary.un .org/record/3956241?ln=en. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948. UN General Assembly, United Nations Declaration on the Elimination of All Forms of Racial Discrimination, 20 November 1963. UN Human Rights Committee, CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6, available at: https://www.refworld.org /docid/453883fc11.html. UN Human Rights Committee, General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34, available at: https://www .refworld.org/docid/4ed34b562.html. UN Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights – Addendum – Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, 11 January 2013, A/HRC/22/17/Add.4, available at: https://www.ohchr.org /Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf. UN Human Rights Council, Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief, 12 April 2011, A/HRC/RES/16/18, available at: https://www .refworld.org/docid/4db960f92.html.

Others

Article XIX, Camden Principles on Freedom of Expression and Equality (London, April 2009), available at: https://www.article19.org/data/files/pdfs/standards/the-camden -principles-on-freedom-of-expression-and-equality.pdf. Lerner, Natan, “Freedom of expression and advocacy of group hatred: Incitement to hate crimes and religious hatred,” Conference room paper for the Office of the United Nations High Commissioner for Human Rights’ expert seminar on the links between Articles 19 and 20 of the International Covenant on Civil and Political Rights: “­Freedom of expression and advocacy of religious hatred that constitutes ­incitement to discrimination, hostility or violence” (2–3 October 2008): 89–96, ­available at: https://

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www.ohchr.org/Documents/Issues/Expression/ICCPR/Seminar2008/Compilation ConferenceRoomPapers.pdf. Medicins Sans Frontieres, “The Practical Guide to Humanitarian Law: Soft Law”, available at https://guide-humanitarian-law.org/content/article/3/soft-law/. Office of the UN High Commissioner for Human Rights, “One-pager on “incitement to hatred”, available at: https://www.ohchr.org/Documents/Issues/Opinion/Articles19 -20/ThresholdTestTranslations/Rabat_threshold_test.pdf. United Nations Strategy and Plan of Action on Hate Speech, May 2019, available at: https://www.un.org/en/genocideprevention/documents/advising-and-mobili zing/Action_plan_on_hate_speech_EN.pdf.

Chapter 10

Church Autonomy in the United States Christopher C. Lund 1 Introduction In this chapter, I will be exploring the idea of religious group autonomy (which I will shorten to ‘church autonomy’ throughout the chapter)1 by looking at how it has developed in American law. My perspective is that of an American lawyer and academic who has only modest familiarity with the European system. But even with that modest familiarity, it seems clear that America has developed a strikingly robust and fairly intricate concept of church autonomy. This should probably come as no surprise. America is both a highly religious society and a highly litigious society, so our system has many occasions to contemplate the idea of church autonomy and consider its rationales, scope, defects, and limits. This is not to say that America’s system is right or that it should be considered a model for other countries pondering what to do. In the American context, I have argued for a fairly vigorous notion of church autonomy.2 But others may see that as something best avoided. Moreover, regardless of whether it works well in America or not, it is an entirely different question how American concepts of church autonomy would function elsewhere—we should be careful about transplanting sociolegal concepts grown in the soil of one nation to the soil of others. Countries are different, after all. This chapter therefore contents itself with simply sketching out the ­American approach so that we can see more clearly what a thick conception of church autonomy looks like—the kinds of rights that it involves and the kinds of rationales that might justify those rights. As a result, this chapter will be more analytical than normative. It tries to help the reader understand how church autonomy has developed in America, but it leaves the reader to draw their own conclusions. Another thing largely left to the reader is how the American 1 By ‘church,’ I mean to include religious organisations of all denominations and of all kinds. I use the phrase ‘church autonomy’ only because phrases like ‘religious group autonomy’ are bulkier and more unwieldy. 2 See Christopher C. Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ Northwestern University Law Review 108, no. 4 (2014): 1183; Christopher C. Lund, ‘In Defense of the Ministerial Exception,’ North Carolina Law Review 90, no. 1 (2011). © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_011

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conception of church autonomy might illuminate what group autonomy, in general, might entail. Religious organisations are not the only groups that seek to live within, but still maintain some independence from, the nation-states in which they find themselves. A wide variety of other groups—indigenous peoples, private universities, political parties, even sub-national governmental units—often seek the right to operate autonomously of the nation-state. 2 History America is a unique country in many ways. American notions of church-state relations and of religious liberty differ from many countries—even the Western European democracies most similar to America in other respects. The reasons for that are, no doubt, complicated and multifaceted. But surely one reason must be America’s unique history. We are in a different place now, because we started in a different place then. The Protestant Reformation fractured Christianity in the West. With Westphalia’s insistence on congruence between religious boundaries and political ones, European countries frequently found themselves with a single dominant church—dominant both in a sociological sense as well as a political one. In France and Spain, it was the Catholic Church. In England, it was the ­Anglican Church. In Germany, regional provinces made regional choices— whether Catholic, Lutheran, or Calvinist. Again, I come at European churchstate relations as a relatively uninformed outsider. But it seems easy to see how these different starting arrangements naturally generate different ­structures of church-state relations. When a single faith looms so large, church-state ­relations end up being chiefly about the relations of one church and one state. There are still a variety of possible arrangements, of course. Depending on things like the relative strength of the church and the state, one might control the other, or they might cooperate, or they might conflict. But when one faith is sufficiently dominant, the primary question becomes the state’s relationship with that dominant faith, and the question of how other faiths should be treated becomes almost a relative afterthought. Here America has a different history, although the differences are nuanced and susceptible to overstatement. Unlike countries in Western Europe, A ­ merica never had a single dominant national faith. This should not be taken as a denial of the obvious fact that the country started off as a largely Protestant country. When the United States formed in the late 18th century, there were few Catholics (about 1% of the population), fewer Jews, and virtually no one else. Modern people tend to see this America as religiously homogenous, because

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it was in a real sense. But that is our view of them now, not their view of them then. This era of Americans did not see themselves as all agreeing on religious matters. Instead, fierce theological disagreements divided upstart Protestant denominations (Baptists and Presbyterians) and older, more established ones thought to be more orthodox (Congregationists and members of the Church of England).3 Yet while America, taken as a whole, was never a religiously homogenous country, individual American colonies (which later became individual American states) were often (at least initially) religiously homogenous and sometimes did have established churches. In America’s north, some states had Congregationalist establishments; in America’s south, some states had establishments associated with the Church of England. These state-level religious establishments survived America’s founding—while America’s Constitution forbade a national established church, it allowed individual states to keep their own established churches. But those state-level establishments, already in decline at the country’s founding in the 1780s, quickly faded from the scene. By the 1830s, all the individual states had abandoned their traditional established churches.4 America’s commitment to religious disestablishment had a variety of sources. It came from a particular understanding of religious liberty formed from interwoven strands of Enlightenment and Protestant thought. It came from a suspicion of government, a suspicion of hierarchical religious organisation, and especially a suspicion of the two combined. American Protestants disliked Catholicism, of course, but Catholicism was far away. Probably more important was their dislike of the Church of England, which was of course associated with England, against whom America had just fought a revolution. And, bearing on all of these, was the country’s striking and ever-increasing ­religious heterogeneity. As a result, America took a different approach to church-state relations from the very beginning. In other countries, the project of religious toleration was figuring out how to square an established national church while still being ­sufficiently accommodating toward minority faiths. This is still the goal in some places. Article 16 of Norway’s Constitution, for example, says that ‘[t]he Norwegian church, an Evangelical-Lutheran church, shall remain 3 Some of the largest conflicts are succinctly summarised in Michael W. McConnell, ‘The ­Origins and Historical Understanding of Free Exercise of Religion,’ Harvard Law Review 103, no. 7 (1990): 1422–24. 4 For a state-by-state recounting of disestablishment, see Carl H. Esbeck and Jonathan J. Den Hartog, Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833 (Columbia: University of Missouri Press, 2019).

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the Norwegian National Church and will as such be supported by the State,’ but the immediately preceding line says that ‘[a]ll inhabitants of the Realm shall have the right to free exercise of their religion.’ But America pursued the project of religious toleration in a different way. Our Constitution protects the free exercise of religion, but it forbids established churches.5 And rather than being contradictory or in tension, those twin commands—disestablishment and free exercise—were initially thought of as connected, as overlapping, and as mutually re-enforcing.6 In part because of this, early America was a place of relative religious equality. To be sure, all faiths were not in the same place—certainly not in the eyes of the citizenry, not even in the eyes of the law. Laws forbidding heresy and blasphemy defined these things in Christian terms, so did the laws forbidding work on the Sabbath. But even so, religious groups in America found themselves more equal in the eyes of the law than they did in other places. In part, this was because there were just so many different religious groups. ­America’s Second Great Awakening (from about 1790 to 1840) greatly increased the number and diversity of Protestant groups, and the future would bring a wide variety of new faiths to the America scene—Adventists, Catholics (largely by immigration), Mormons, and Jews. Early America was not devoid of interreligious conflict (e.g., the early Mormon Church in America).7 And we have interreligious conflict right now (e.g., Muslims in America today). But even so, for a religiously heterogenous country, America has avoided the kinds of violent religious conflict that have historically plagued other countries. In all this, the role of disestablishment remains mysterious, but I suspect certain connections between the two. When a country has an established church, members of that church have their free exercise vicariously protected by the existence of the establishment. But in a country with no established church, all faiths start off 5 The First Amendment to the Constitution says that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ U.S. Constitution, amend. I. Again, to be clear, the First Amendment only forbade the national legislature (­Congress) from establishing a church, but it left intact any religious establishments that a state (like Massachusetts or Virginia) might have. But again, formal disestablishment at the state level was already happening at the time the Constitution was created, and was basically complete in the early 19th century. 6 It is hard to understand America church-state relations without understanding this point. As Doug Laycock put it, ‘[the Religion Clauses were no compromise of conflicting interests, but the unified demand of the most vigorous advocates of religious liberty.’ Douglas Laycock, ‘Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century,’ Minnesota Law Review 80, no. 5 (1996): 1088. 7 See Sarah Barringer Gordon, Mormon Question: Polygamy and Constitutional Conflict in N ­ ineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002).

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knowing that their free exercise is somewhat precarious. Faiths must work with each other, and in America, often they did. 3

The Contrast with Europe

America has changed a lot in the past 200 years. But many parts of the story have remained the same. America has maintained, at least by European ­standards, a high level of religiosity, an astoundingly high degree of religious diversity, a relatively conservative social and political culture, and a relatively thick conception of individual rights across the board. For all these reasons, strong notions of church autonomy have come easily to American law. Indeed, for these same reasons, many of the disputes that have arisen in Europe do not arise in America (or at least in modern America).8 America has robust constitutional guarantees of religious nondiscrimination. The Swiss ban on minarets, upheld by the ECtHR on procedural grounds,9 is something that American courts would see as religiously discriminatory and unconstitutional.10 The same is true for the ECtHR’s cases involving bans on religious veils.11 8

9 10

11

Americans especially will appreciate the excellent overview of ECtHR and CJEU cases given in John Witte, Jr. & Andrea Pin, ‘Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts,’ Emory Law Journal 70, no. 3 (2021): 587. See European Court of Human Rights, Prohibition on Building Minarets in Switzerland: Applications Inadmissible, 2011. The important American case here is Lukumi, where the United States Supreme Court unanimously (by a vote of 9–0) allowed a Cuban religious group, Santeria, to continue sacrificing animals in their religious rituals, despite contrary city ordinances, because the Court believed the Santeria had been inappropriately targeted by those ordinances. See Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520 (1993). In recent years, the constitutional prohibition on religious discrimination has grown even more robust, although that has been controversial. See Tandon v Newsom, 141 S. Ct. 1294 (2021) (holding that California’s COVID-19 rule limiting gatherings in homes to three families discriminated against religious groups, even though California’s law applied to both religious gatherings and nonreligious ones, because California allowed certain businesses to open that posed the same health risks); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (holding that the city of Philadelphia discriminated against Catholic Social Services by refusing to exempt them from non-discrimination rules requiring them to serve gay couples, because the city’s own rules allowed for exemptions); Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018) (holding that certain aspects of the adjudicatory process showed Colorado had discriminated against a Christian baker who refused on grounds of religious conscience to make a wedding cake for a gay couple). Belcacemi v. Belgium, App. No. 37798/13 (July 11, 2017), http://hudoc.echr.coe.int /eng?i=001-175636; S.A.S. v. France, 2014-III Eur. Ct. H.R. 341, 353–54, ¶ 12; Lachiri v.

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Religious groups in America also enjoy a wide variety of secular civil liberties that backhandedly protect their religious freedom. The ECtHR’s cases about religious groups seeking rights to proselytise would be easily handled in America.12 Religion, in fact, is irrelevant; such cases would be treated as straightforward violations of our constitutional guarantees of free speech.13 The ECtHr has had a number of recent cases involving Jehovah’s Witnesses being attacked, intimidated, or denied the right to worship.14 But America has not really had such cases since the 1940s and 1950s, when the United States Supreme Court ruled for the Jehovah’s Witnesses in a set of important cases, some of which were resolved on the basis of free exercise and some on the basis of free speech.15 Even more fundamentally, America’s political process is such that some kinds of European conflicts will never arise here. The ECtHr once rejected a claim of parents to a right to religiously homeschool their children.16 But homeschooling (whether done for religious reasons or not) is protected by statute in all 50 American states.17 The ECtHR once rejected a claim that nations had to give legal effect to marriages conducted in religious ceremonies before B ­ elgium, App. No. 3413/09, ¶¶ 31–48 (Dec. 18, 2018), http://hudoc.echr.coe.int/eng?i=001 -186461. 12 See, e.g., Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993). 13 See, e.g., William P. Marshall, ‘In Defense of Smith and Free Exercise Revisionism,’ University of Chicago Law Review 58, no. 1 (1991): 313 (noting how, in America, ‘much of the core of religious exercise—prayer, proselytization, and preaching, for example—is expressive conduct covered by [America’s] Free Speech Clause’). 14 Ass’n for Solidarity with Jehovah’s Witnesses v. Turkey, App. Nos. 36915/10 & 8606/13, ¶¶ 3, 108 (Oct. 17, 2016), http://hudoc.echr.coe.int/eng?i=001-163107; Gldani Congregation v. Georgia, App. No. 71156/01, 46 Eur. H.R. Rep. 613, 649, ¶¶ 151–52 (2007); Valsamis v. Greece, 1996-VI Eur. Ct. H.R. 2312, 2315. 15 See Neil M. Richards, ‘The ‘Good War’ the Jehovah’s Witnesses, and the First Amendment,’ Virginia Law Review 87, no. 4 (2001): 782–83 (‘[B]etween 1937 and 1954, the [United States Supreme] Court decided a number of critical First Amendment cases that laid the doctrinal and conceptual foundation for much of modern free speech and free exercise of religion jurisprudence … It is remarkable that virtually all of these cases involved a single group of litigants—the Jehovah’s Witnesses.’) (reviewing Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (­Lawrence: University Press of Kansas, 2000)). 16 In Konrad v. Germany, 2006-XIII Eur. Ct. H.R. 355, the ECtHR rejected the claim of conservative Christian parents who sought to homeschool their children because of a variety of fears of the German public school system. 17 ‘After a long string of legislative and judicial victories, however, homeschooling is now recognized as legal in all fifty [American] states.’ Billy Gage Raley, ‘Safe at Home: Establishing a Fundamental Right to Homeschooling,’ Brigham Young University Education and Law Journal 2017, no. 1: 59.

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religious officials.18 But again all 50 American states already have ­statutes doing precisely that.19 The ECtHR cases about draft exemptions bear some similarity to early American cases.20 But the ECtHR cases are recent, while America has not had a military draft in 50 years and it is almost unthinkable that we would have one again. But it is not just that America finds easy certain questions that Europe finds hard. It is also that Europe asks questions that America does not have reason to ask. One of the most flummoxing ECtHr cases for Americans to understand is Fernández Martínez v. Spain.21 Fernández Martínez was an ordained Catholic priest. Without a dispensation from the Catholic Church, he married a woman and had five children. When his situation became public, he was fired from his job teaching religion at a state-run school (in America, we would use the term ‘public school’), and the ECtHR dismissed his claim. To Americans, this situation is hard even to understand. Why should the teacher at a public school be fired for failing to conform to Catholic rules of sexual morality? For ­Americans, the deep problem here is the agreement between Spain and the Catholic Church, under which the Catholic Church has the right to appoint the religion teachers in Spain’s public schools.22 That would never happen in America. In America, Fernández Martínez certainly has no right to continued employment at a private Catholic school—that is a core part of American notions of church autonomy.23 But Fernández Martínez would have every right

18 19 20 21 22

23

Serife Yiğit v. Turkey, App. No. 3976/05, ¶ 39 (Nov. 2, 2010), http://hudoc.echr.coe.int/eng ?i=001-101579. ‘Unlike many places in the world, statutes in every state of the United States authorize religious leaders to solemnize or perform legally binding marriages.’ Elijah L. Milne, ‘­Marriage and the Religion Clauses,’ St. John’s Law Review 85, no. 4 (2011): 1467. Bayatyan v. Armenia, 2011-IV Eur. Ct. H.R. 1.; Papavasilakis v. Greece, App. No. 66899/14 (Sept. 15, 2016), http://hudoc.echr.coe.int/eng?i=001-166850; Aydemir v. Turkey, App. No. 26012/11 (July 9, 2016), http://hudoc.echr.coe.int/eng?i=001-163940. Fernández Martínez v. Spain, 2014-II Eur. Ct. H.R. 449. As the American law professor Mark Movsesian puts it, the case ‘reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees … (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.).’ Mark Movsesian, ‘European Court Decides Church Autonomy Case,’ First Things, July 8, 2014, https://www.firstthings.com/blogs/firstthoughts/2014/07 /european-court-decides-church-autonomy-case. In America, religious schools can fire their religious teachers for any reason, and courts will uphold that action without any investigation into those reasons. These are, in fact, the United States Supreme Court’s most recent cases about church autonomy. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).

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to continued employment at a state-run public school. Again, because of our different starting places, we face different kinds of issues. 4

Church Autonomy in America Today

Let us now start in on the concept of church autonomy in America. We could focus on all the different kinds of legal protections given to religious organizations. By statute, American law exempts religious organizations from zoning rules, employment laws, pension requirements, labor laws, and other kinds of legal obligations.24 A detailed look at any one of those could easily fill this chapter. Instead, let us begin by looking at the origins of the more general constitutional principle of church autonomy, and then turn to how this principle has been operationalised in modern America by examining some recent illustrative cases. In America, the constitutional right of church autonomy dates back to a curious place—a set of 19th and early 20th century disputes about church ­factions in a schism fighting for control over the church’s real property. Schisms within a religious organisation can happen for a host of reasons. But in ­America, schisms have often happened when churches fracture over theological issues—often theological issues connected to the political issues of the day. In the 1960s and 70s, the movement for women’s equality raised questions about women’s ordination that led to church splits.25 As we speak, the movement for gay equality is raising questions about gay ordination that are leading to church splits.26 In late 19th century America, the omnipresent political issue was slavery. And in 1871, slavery split a Presbyterian Church in Kentucky into two factions. Each faction could claim some support. The anti-slavery side had the support of a majority of the congregation as well as the national church, while the 24 25

26

Details about these are given in William W. Bassett, W. Cole Durham, & Robert T. Smith, Religious Organizations and the Law, 2nd ed. (Eagan: Thomson West, 2015). In the United States Supreme Court’s decision in Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969), a Presbyterian church in the state of Georgia split over a variety of issues, but the first listed one was the ‘ordaining of women as ministers and ruling elders.’ Ibid. at 443 n.1. The United States Supreme Court has not had one of these cases. But there have been several cases in the lower courts. For a representative example, see Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013), where the Texas Supreme Court considered the rights of a conservative breakaway Episcopal congregation over the Episcopal Church’s increasing acceptance of gay clergy.

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pro-slavery side had the support of a majority of the church trustees (who held legal title to the property) and the Session (who governed the church). Both sides claimed to be the true church, entitled to all the church’s property. In Watson v. Jones,27 the Supreme Court addressed this dispute and laid ­general rules for these kinds of disputes. Churches had rights of self-­ governance, the Court said, so courts had to do their best to stay out of ­internal church ­controversies. To describe this, the Court came with an idea about ‘implied consent’28—the basic concept being that when one joins a church, one consents to the church making its own decisions. From this idea sprang Watson’s legal regime, which centered around church structure. For hierarchical churches—those churches that recognised a higher church authority— courts would generally defer to the will of that hierarchy in resolving schism ­questions. For congregational churches, courts would generally defer to the will of the majority of the congregation. Respecting a church’s autonomy, the Court thought, was a matter of respecting a church’s established pre-­commitments about who was in ultimate control. The principle evolved from there. One crucial case came in 1976, with a schism in the Serbian Eastern Orthodox Church.29 Milivojevich had been the presiding bishop for the Church in America, when the Mother Church in Yugoslavia purported to remove him and appoint someone else. Milivojevich challenged his removal in court, arguing that it was procedurally invalid—that the Mother Church had removed him in violation of its own rules. This was a dispute about church personnel but, like the Court’s earlier cases, it simultaneously implicated church property—whoever the true bishop was, everyone realised, that person would have legal title to all the church’s property in North America. When the Supreme Court stepped in, it ruled against Milivojevich. This was a hierarchical church, the Court said, so the courts had to accept Yugoslavia’s decision to remove him. For a long time, the principle of church autonomy remained obscure—a striking principle in the abstract, but lacking practical significance outside the 27 28

29

Watson v. Jones, 80 U.S. 679, 729 (1871). For more detailed factual accounts and evaluative assessments of Watson and its successor cases, see Lund, ‘In Defense of the Ministerial Exception,’ 12–23. The full line is this: ‘All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.’ Watson v. Jones, 80 U.S. 679, 729 (1871). See Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976).

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narrow context of church schisms. But that changed in two cases—an older cryptic case about labour law, and a newer clearer one about employment law. The labor law case happened in 1979, when teachers in Catholic parochial schools sought to create a labor union that would bargain with the Catholic Church.30 In a cryptic but unanimous decision, the Supreme Court said they could not—assuming that Congress would not so lightly intrude on the principle of church autonomy, the Court read the federal labour laws as not to apply to churches.31 The newer case happened in 2012, Hosanna-Tabor v. EEOC.32 American employment law generally forbids discrimination on the basis of various characteristics—race, sex, religion, disability, age, and sexual orientation. By statute, religious institutions are exempt from the ban on religious discrimination.33 But in Hosanna-Tabor, the Supreme Court said religious institutions could not be sued for any kind of discrimination by their ‘ministers,’ and then went on to define ‘ministers’ broadly to include any parochial school teacher whose duties include teaching the faith.34 What connects these cases? In an early case, the Supreme Court phrased the principle this way: ‘[R]eligious organizations,’ the Court said, have ‘power to decide for themselves, free from state interference, matters of church ­government as well as those of faith and doctrine.’35 This is a right of self-­ determination—a right to general autonomy from the state. 30 31

32 33

34

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See NLRB v. Catholic Bishop, 440 U.S. 490 (1979). The Court’s decision was thus a matter of statutory interpretation. The Court did not say that churches were entitled to an exemption as a matter of constitutional right. Instead, ‘[a]ll we have are nine Justices cryptically agreeing that the case presents “‘difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.’” Lund, ‘In Defense of the Ministerial Exception,’ 20 (quoting NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979)). Hosanna-Tabor v. EEOC 565 U.S. 171 (2012). See 42 U.S.C. § 2000e–1. The United States Supreme Court unanimously upheld this exemption, concluding that it was not favoritism for religion that violated the Establishment Clause, in Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). This conclusion is actually the combination of several cases. Hosanna-Tabor held a Lutheran teacher that both taught religion and had a ministerial position in the church to be a ‘minister’ for these purposes. But in a later case, Our Lady of Guadalupe Sch. v. Morrissey-Berru, the Court said that merely teaching religion to students was sufficient to make the teacher a minister and thus to bar the teacher’s legal claims. 140 S. Ct. 2049 (2020). See Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012) (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am. (1952).) The Court has also put it other ways. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (‘The independence of

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Of course, one could ask why religious organisations should have this kind of autonomy from the state. No doubt one could go searching for answers to this question in a wide variety of places. Reflecting its general methodological perspective, the United States Supreme Court has grounded it largely in historical terms—religious organisations should have autonomy now, because they had similar kinds of autonomy throughout American history (and before it).36 But when one reads the opinions closely, one also sees a recurring theme that also goes to justification—the theme of religious voluntarism. Most people accept religious voluntarism as a reason for religious freedom at the individual level. Each person gets to make their own decisions about religion. Each ­person chooses what to believe, and—though this is constrained by the ­communal nature of society—also gets to decide how to practice their chosen faith as well. But when we move from individuals to groups, the voluntary principle ­obviously becomes more complicated. Groups should also have right to practice religion. But unlike individuals, groups sometimes disagree. When those disagreements arise, groups often split into factions. When a faction bring suit in court, it is essentially attempting to impose its choices about religion on the other factions within the church. This is what makes voluntarism in the group context so difficult—and, in a deep way, the Court’s church autonomy cases are the Court’s attempts to deal with those difficulties. Maybe one sees this principle at play most clearly in an old church-property dispute, P ­ resbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church.37 There lower courts had applied the old English property rule about where church property goes in the event of theological schism. Under that rule, courts were to give the property to the faction whose views the courts believed were closest to the original views of the church. But the obvious problem with the English rule was that it greatly undermined established religious authorities, preventing them from making theological changes without risk of losing their property. Even a single dissenter that wanted things the old way could

36 37

religious institution … protect[s] their autonomy with respect to internal management decisions that are essential to the institution’s central mission.’); Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012) (Alito, J., concurring) (‘The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.’). See Hosanna-Tabor v. EEOC, 565 U.S. 171, 182–90 (2012) (turning to history); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060–62 (2020) (same). See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969).

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claim a departure-from-religious-doctrine and sue for legal control of the church’s property. Finding this an easy case, the United States Supreme Court ­unanimously held the old English rule incompatible with the constitutional principle of church autonomy. All of the United States Supreme Court’s church autonomy cases can be seen through this lens of religious group voluntarism. Take again the recent cases establishing the ‘ministerial exception’—the notion that churches have immunity from employment discrimination claims brought by their ministers. Those cases always begin with an assertion of right by the minister: I have a legal right to be their minister, no matter what they want. But it is easy to see how this threatens the idea of religious group voluntarism. In a system where religion is voluntary, your right to practice religion with other people runs in tension with their right not to practice religion with you. So far, the United States Supreme Court has had few occasions to reflect deeply on the concept of church autonomy. Outside the ministerial exception cases, the United State Supreme Court has not addressed church autonomy in more than 40 years.38 Only the most basic contours are clear, and the details have been left almost completely undefined. Even so, we can get a sense of how church autonomy works in modern America by looking at a few disputes in the lower courts. And when we look there, church autonomy looks like a strikingly powerful principle with wide application. If one were to summarise what church autonomy there looks like in a single sentence, it would be this: religious dissenters cannot sue their religious organisations to compel changes in those organisations’ beliefs, practices, or governance. Let’s start with beliefs. A representative case here involves a Jehovah’s ­Witness who got marital counseling from her church.39 Believing that marriage is permanent and divorce is immoral, the church encouraged her to stay with her abusive husband. When she later left him, she sued the church. In her view, if it hadn’t been for the church’s counseling, she would have left him years ago. But the Connecticut court here dismissed the claim, for understandable reasons. She might be right that the church caused those extra years of abuse. But allowing her claim to go forward would nevertheless mean the church does not have a right to hold and to teach its religious beliefs about marriage. As we move from beliefs to practices, the counterarguments to church autonomy grow stronger. After all, it is one thing to say that religious organisations 38 39

See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012). See DeCorso v. Watchtower Bible & Tract Society of New York, 829 A.2d 38 (Conn. App. 2003).

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can believe whatever they want, but a quite different thing to say that they can do whatever they want. Even so, courts have maintained a fairly robust view of church autonomy. Courts in the United States regularly dismiss claims brought by members who claim that church practices caused them emotional or spiritual harm—suits challenging a church’s practice of excommunication or shunning, for example, are routinely dismissed.40 One striking case from Kansas involved a man who brought suit against his former wife for things she disclosed to the Catholic Church about him (namely that he had been diagnosed as bi-polar) when the Catholic Church was deciding whether to annul their marriage.41 Reasoning that liability would too greatly interfere with the internal operations of the Catholic Church, the Court dismissed the case. Indeed, even suits alleging physical injuries incurred in religious practices have been dismissed. One case involved the happenings at a Catholic charismatic healing service, where congregants would ‘rest in the spirit’ and fall back into someone else’s arms.42 During one service, however, a long-time member fell back, was not caught property, and hit her head badly. She brought a negligence claim against the church, arguing that the church had failed to exercise ‘reasonable care’ and that she was physically injured as a result. But the Court dismissed the claim, on the theory that the government could not set legal requirements for religious services.43 Tied in with the issue of religious practices is the issue of religious governance. Selection of church personnel, courts have said, is beyond j­ udicial purview—this was the Supreme Court’s conclusion in the ministerial e­ xception cases, mentioned above.44 But just as significant is how courts have protected the process of church governance. For example, just as fired m ­ inisters cannot bring employment discrimination suits challenging their terminations, they also cannot bring defamation suits claiming something false was said about them during the termination process.45 And courts have rebuffed other 40 41 42 43

44 45

See Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ 1214 & n.177 (collecting cases). See Purdum v. Purdum, 301 P.3d 718 (Kan. Ct. App. 2013). See Kubala v. Hartford Roman Catholic Diocesan Corp., 41 A.3d 351 (Conn. Super. Ct. 2011), aff’d summarily, 38 A.3d 1252 (Conn. App. Ct. 2012). The court said the negligence claim was ‘based on the defendants’ allegedly negligent ­performance of the healing ritual,’ and that ‘[t]he performance of a religious healing ­ritual certainly falls under the types of doctrines and practices which the first amendment is designed to protect.’ Ibid. at 358. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). See Ira C. Lupu & Robert W. Tuttle, ‘Courts, Clergy, and Congregations: Disputes Between Religious Institutions and Their Leaders,’ Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 155 (discussing defamation claims in this context, and concluding that to allow

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attempts by church members to attack church decisions in the courts. In a typical case of this sort, a church member brought suit in court because he did not like it when his church changed its name. He claimed that the church had improperly allowed people to vote on this issue—people who were not members of the church under the church’s established rules. Yet the court that heard this case swiftly dismissed it, reasoning that it could neither second-guess a church’s decision about who was a member, nor adjudicate claims that a church had failed to follow its own rules.46 Yet these cases also prompt a sense that there must be lines somewhere— that there must be limits to this principle of church autonomy. Those limits come from different directions. We have said that church autonomy prevents church insiders from legally contesting the internal operations of a church. But this phrasing itself suggests limits. For one thing, it suggests church autonomy should only bind insiders. Outsiders—those with no connection to the church in question—should not be bound by the principle of church autonomy. Moreover, the insider/outsider line has another important corollary in the constitutional right of exit—every insider should have a right to leave the church and effectively become an outsider. And for another thing, church autonomy should only preclude claims relating to the internal operations of a church. So claims outside that category should go forward. We see both of these limits when we look at defamation claims brought against churches. Those cases sometimes fail, but they are most likely to succeed when the ­plaintiff has left the church (i.e., is no longer an insider), or when the communications go outside the church (i.e., the matter no longer relates to the church’s internal operations). Church autonomy also faces other kinds of limits. It can be waived. Religious organizations can waive their autonomy either by not raising it as a defence,47 or sometimes by contract.48 Church autonomy should also only come into play when liability would affect some distinctively religious interest of the religious organisation. Earlier this chapter mentioned the Kubala case, where the court these claims would be to allow ‘a collateral attack on a decision that is otherwise solidly protected by the ministerial exception’). 46 See Gunn v. First Baptist Church, No. W201702382COAR3CV, 2018 WL 2749639 (Tenn. Ct. App. June 7, 2018). 47 This is one of the more obscure holdings of the United States Supreme Court in Hosanna-Tabor, the ministerial exception case. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012) (concluding that the ministerial exception ‘operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar,’ and is thus waivable). 48 Contract claims are more difficult. For more on them, see Lund, ‘Free Exercise ­Reconceived: The Logic and Limits of Hosanna-Tabor,’ 1221–29.

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held that a woman could not recover money from the Catholic Church for injuries sustained when she fell and was not caught during a prayer service.49 But it would be an entirely different thing if she fell in the church’s icy parking lot after the service. This is also a way of understanding the clergy sex abuse cases (of which there are legion in America). In part because the actions sued about in those cases are never formally sanctioned, liability does not threaten to change the religious operations of the church.50 Finally, there is a simple reality. In America, as in other places, rights are usually defeasible—that is, subject to balancing and thus subject to exception when they infringe on other important interests. And in some church autonomy cases, the rights on the other side are simply more compelling, especially in cases of physical danger and especially in cases of minors. Famous early cases in America involved the Protestant practice of snakehandling.51 A more recent, and more controversial, case from Texas involved a seventeen-year-old girl, who sued her Pentecostal church for forcibly restraining her during a church exorcism.52 There were some indications in the record that she consented to the exorcism. But the relevance of that consent is open to question (as she was a minor), and she clearly suffered serious injuries. Nevertheless, the Texas Supreme Court dismissed her case.53 An even more alarming case is now working its way through the Utah courts, where a fourteen-year-old girl who was a Jehovah’s Witness started seeing an eighteen-year-old in her congregation.54 But the relationship eventually changed, and he began physically and sexually assaulting her. When all this was discovered, instead of simply recognising this as abuse, the church investigated the girl to find out her moral culpability—questioning her for nearly an hour about the details of their sexual encounters, and forcing her to listen to an audio recording of her own sexual assault. Church autonomy is an important principle. But some things will

49 50

51 52 53 54

See supra note 43 and accompanying text. For fuller consideration of the clergy sex-abuse cases, see Ira C. Lupu & Robert W. Tuttle, ‘Sexual Misconduct and Ecclesiastical Immunity,’ Brigham Young University Law Review 2004: 1789, and Douglas Laycock, ‘Church Autonomy Revisited,’ Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 253. See State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975). For more on this, see Matthew M. Ball, ‘Targeting Religion: Analyzing Appalachian Proscriptions on Religious Snake Handling,’ Boston University Law Review 95, no. 4 (2015): 1425. See Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008). For more on the facts of Pleasant Glade, and a fuller analysis of why the Court might have been wrong, see Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-­ Tabor,’ 1217–19. See Williams v. Kingdom Hall of Jehovah’s Witnesses, 491 P.3d 852 (Utah 2021).

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be beyond the pale, and defining church autonomy’s limits is as important as defining its scope. 5 Conclusion Church autonomy is a relatively new concept everywhere, even in the United States where it may be most fully developed. Everything about it is uncertain— its rationales and counter-rationales, its scope and its limits, its benefits and its costs. Yet the principle has firm roots in American history and doctrine, so its haziness suggests we need to consider it more deeply. Later on, I would like to explore more analogies to the rights that other organizations enjoy—analogies with Native American tribes, political parties, universities, and other entities. But such matters are, for now, future work. Acknowledgments I would like to thank Chad Flanders for helpful comments on an earlier draft. Bibliography Books

Barringer Gordon, Sarah. Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002. Bassett, William W., W. Cole Durham, and Robert T. Smith. Religious Organizations and the Law. 2nd ed. Eagan: Thomson West, 2015. Esbeck, Carl H., and Jonathan J. Den Hartog. Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833. Columbia: University of Missouri Press, 2019.



Journal Articles

Ball, Matthew M. “Targeting Religion: Analyzing Appalachian Proscriptions on ­Religious Snake Handling.” Boston University Law Review 95, no. 4 (2015): 1425. Gage Raley, Billy. “Safe at Home: Establishing a Fundamental Right to Homeschooling.” Brigham Young University Education and Law Journal 2017, no. 1: 59. Laycock, Douglas. “Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century.” Minnesota Law Review 80, no. 5 (1996): 1088.

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Lund, Christopher C. “Free Exercise Reconceived: The Logic and Limits of Hosanna-­ Tabor.” Northwestern University Law Review 108, no. 4 (2014): 1183. Lund, Christopher C. “In Defense of the Ministerial Exception.” North Carolina Law Review 90, no. 1 (2011). Lupu, Ira C., and Robert W. Tuttle. “Courts, Clergy, and Congregations: Disputes Between Religious Institutions and Their Leaders.” Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 155. Lupu, Ira C., and Robert W. Tuttle. “Sexual Misconduct and Ecclesiastical Immunity.” Brigham Young University Law Review 2004: 1789. Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” University of Chicago Law Review 58, no. 1 (1991): 313. McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103, no. 7 (1990): 1422–24. Milne, Elijah L. “Marriage and the Religion Clauses.” St. John’s Law Review 85, no. 4 (2011): 1467. Richards, Neil M. “The ‘Good War’ the Jehovah’s Witnesses, and the First Amendment.” Virginia Law Review 87, no. 4 (2001): 782–83. Witte, John, Jr., and Andrea Pin. “Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts.” Emory Law Journal 70, no. 3 (2021): 587.

Cases

Ass’n for Solidarity with Jehovah’s Witnesses v. Turkey, App. Nos. 36915/10 & 8606/13, ¶¶ 3, 108 (Oct. 17, 2016), http://hudoc.echr.coe.int/eng?i=001-163107. Aydemir v. Turkey, App. No. 26012/11 (July 9, 2016), http://hudoc.echr.coe.int/eng?i=001 -163940. Bayatyan v. Armenia, 2011-IV Eur. Ct. H.R. 1. Belcacemi v. Belgium, App. No. 37798/13 (July 11, 2017), http://hudoc.echr.coe.int/eng?i =001-175636. Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520 (1993). Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). DeCorso v. Watchtower Bible & Tract Society of New York, 829 A.2d 38 (Conn. App. 2003). Fernández Martínez v. Spain, 2014-II Eur. Ct. H.R. 449. Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). Gldani Congregation v. Georgia, App. No. 71156/01, 46 Eur. H.R. Rep. 613, 649, ¶¶ 151–52 (2007). Gunn v. First Baptist Church, No. W201702382COAR3CV, 2018 WL 2749639 (Tenn. Ct. App. June 7, 2018). Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).

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Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993). Konrad v. Germany, 2006-XIII Eur. Ct. H.R. 355. Kubala v. Hartford Roman Catholic Diocesan Corp., 41 A.3d 351 (Conn. Super. Ct. 2011), aff’d summarily, 38 A.3d 1252 (Conn. App. Ct. 2012). Lachiri v. Belgium, App. No. 3413/09, ¶¶ 31–48 (Dec. 18, 2018), http://hudoc.echr.coe .int/eng?i=001-186461. Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018). Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013). NLRB v. Catholic Bishop, 440 U.S. 490 (1979). Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020). Papavasilakis v. Greece, App. No. 66899/14 (Sept. 15, 2016), http://hudoc.echr.coe.int /eng?i=001-166850. Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008). Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969). Purdum v. Purdum, 301 P.3d 718 (Kan. Ct. App. 2013). S.A.S. v. France, 2014-III Eur. Ct. H.R. 341, 353–54, ¶ 12. Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976). Serife Yiğit v. Turkey, App. No. 3976/05, ¶ 39 (Nov. 2, 2010), http://hudoc.echr.coe.int /eng?i=001-101579. State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975). Tandon v Newsom, 141 S. Ct. 1294 (2021). Valsamis v. Greece, 1996-VI Eur. Ct. H.R. 2312, 2315. Watson v. Jones, 80 U.S. 679, 729 (1871). Williams v. Kingdom Hall of Jehovah’s Witnesses, 491 P.3d 852 (Utah 2021).



Legal Instruments



Website Content

U.S. Constitution, amend. I. (1789). 42 U.S.C. § 2000e–1 (1972).

Movsesian, Mark. “European Court Decides Church Autonomy Case.” First Things. July 8, 2014. https://www.firstthings.com/blogs/firstthoughts/2014/07/european-court -decides-church-autonomy-case.

Reports

European Court of Human Rights, Prohibition on Building Minarets in Switzerland: Applications Inadmissible, 2011.

Chapter 11

Religious Freedom and the Business Corporation Ronald J. Colombo Introduction The twenty-first century has witnessed, particularly in the United States, the advent of the ‘religiously expressive business corporation.’ By that term, I refer to for-profit companies that embrace an articulated religious identity and strive to conform their operations to such identity. The religiously expressive business corporation is controversial because, among other things, it conjoins to one controversial subject a second controversial subject. More specifically, this entity brings together (1) the perennially problematic puzzle of balancing the individual’s right to religious freedom within a society ostensibly predicated upon ordered liberty; and (2) the role, nature, rights and responsibilities of the business corporation. Exacerbating the controversy over the religiously expressive business ­corporation has been the widening gulf between American citizens who maintain traditional religious beliefs and perspectives, and those who have adopted more secularised views in conformity with much of the modern West.1 As the former group wanes in number while the latter group waxes, regulation – even regulation of business entities – has commonly taken on a character that increasingly reflects and effectuates progressive, secularised views on ‘social 1 Studies within the past decade have demonstrated that non-affiliation to an organized religion is more prevalent among younger Americans, particularly second generation American youth; those who do identify with an organized religion tend to consider themselves to be “orthodox” or more conservative than their non-religiously affiliated peers. The share of U.S. adults who say they believe in God, while still remarkably high by comparison with other advanced industrial countries, has declined modestly, from approximately 92% to 89%, since Pew Research Center conducted its first Landscape Study in 2007. The share of Americans who say they are “absolutely certain” God exists has dropped more sharply, from 71% in 2007 to 63% in 2014. And the percentages who say they pray every day, attend religious services regularly and consider religion to be very important in their lives also have ticked down by small but statistically significant margins. See Ammerman, Nancy T. “The many meanings of non-affiliation.” Empty churches: Non-affiliation in America (2021): 27–55; See also Smith, Gregory A., and Sandra Stensel. “U.S. Public Becoming Less Religious.” Edited by Alan Cooperman. Pew Research Center’s Religion & Public Life Project. Pew Research Center, November 3, 2015. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_012

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issues’ such as contraception, abortion, and sexual orientation. A conflict of rights invariably ensues when a business corporation asserts its religious liberty interests against acquiescence to entitlements and protections granted by legislation to its customers and employees. Simultaneously, the concept of ‘corporate social responsibility’ has never been more widely and vigorously embraced. Coupled with pervasive ­professions of pluralism being preferred (oftentimes by ‘diversity, equity, and inclusion’ initiatives), one would expect the religiously expressive corporation to receive a welcomed embrace by society. It generally has not. Paradoxically (and to paraphrase George Orwell), it would seem that although all differences are valued, some differences are more valued than others. This chapter will examine the issue of corporate religious liberty in four parts. Part 1 will provide a brief overview of the history of the business corporation in the United States, with a focus on conceptualisations of its nature. Part 2 will discuss religious liberty jurisprudence in the United States in general, and Part 3 will discuss corporate assertions of religious liberty in particular. Part 4 will point out the cognitive dissonance of a society that simultaneously embraces a robust understanding of corporate social responsibility yet an enervated appreciation of corporate religious liberty rights. Part 1: A Primer on the Business Corporation Evidence of business undertakings pursuant to structured, organised forms can be found in some of the earliest annals of recorded history.2 Blackstone has “attributed the invention of private corporations to … Numa Pompilius,” the second king of Rome.3 I suggest that this lineage, coupled with the ­corporation’s persistence in one form or another throughout the millennia, bears upon the fundamental nature of the entity (a point with repercussions to which we will return later).4 2 Skeel, David A. “Christianity and the Large Scale Corporation.” Public Law Research Paper 314–15 (2007). 3 See Arner, Douglas. “Development of the American Law of Corporations to 1832.” SMUL Rev. 55 (2002): 23; see also Colombo, Ronald J. “The Naked Private Square.” Hous. L. Rev. 51 (2013): 1. (‘Numa Pompilius was the second king of Rome (following Romulus, Rome’s first king and founder), reigning from 715 to 673 B.C.’) (citing “Numa Pompilius. (1994). In Encyclopedia B ­ rittanica (13th ed., Vol. 8, p. 825). “Other scholars have posited that the corporation first came into existence in ancient Greece.” (Colombo, 2013, 48). 4 See Berle, Adolf Augustus, and Gardiner Coit Means. “Modern corporation and private property.” (1932); Hager, Mark M. “Bodies politic: The progressive history of organizational real

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With regard to the American experience, the European colonialisation of North America was famously accomplished, in part, by the efforts of joint stock companies (close forerunners to the modern corporation)5 such as the Virginia Company of London6 and the Dutch West India Company.7 Great Britain’s success in the Seven Years’ War (1755–1763) cemented British dominance in North America, with one of the results being that the United States inherited not only much of its culture from Great Britain, but its law and jurisprudence as well.8 Thus, at the dawn of the American Republic in the 1780s, the law and ­understanding of corporations in the United States was that of Great Britain.9 Theoretically, the corporation was conceptualised as a mere “concession of the state” at this time.10 This understanding comported well with the legal regime in which the corporation operated; corporate charters were granted on a c­ ase-by-case basis, subject to the sovereign’s approval (which, in ­America, meant the state legislatures).11 In its assessment of a corporate charter ­application, the sovereign would look for evidence that the proposed entity would “benefit the public good,” and consequently “mainly awarded charters for enterprises [such as] building public works like bridges and supplying public transport like operating a ferry.”12 Over time, however, society’s conceptualisation of the corporation changed. Whether this was a result of the changing landscape of corporate law, or whether the changing landscape of corporate law prompted the reconceptualization, is



entity theory.” U. Pitt. L. Rev. 50 (1988): 575–80; Ripken, Susanna K. “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” Fordham J. Corp. & Fin. L. 15 (2009): 97; Tsuk, Dalia. “Corporations without labor: The politics of progressive corporate law.” University of Pennsylvania Law Review 151, no. 6 (2003): 1861–73. 5 The primary difference between a joint stock company and a modern corporation is that the former “derives its existence from a contract of individuals” whereas the latter “derives its existence from the sovereign power of the state.” Nature and status of jointstock companies; as distinguished from corporation (American Jurisprudence, 2021). Indeed, “in some jurisdictions, joint-stock companies have the powers and characteristics of corporations to such an extent that the differences between the two forms of organization are matters of degree, rather than of kind. Accordingly, joint-stock companies may be found which are corporations in the strictest sense of the word.” Ibid. 6 See Morison, Samuel Eliot. “The Oxford history of the American people.” (1965). 7 See ibid., 56–57 see also Davies, Kenneth G. “Joint-stock investment in the later ­seventeenth century.” The Economic History Review 4, no. 3 (1952): 296–97. 8 See ibid., 163–169. 9 Colombo, Ronald J. The first amendment and the business corporation. Oxford University Press, 2015. 10 Ibid., 38. 11 Pollman, Elizabeth. “Reconceiving corporate personhood.” Utah L. Rev. (2011): 1629. 12 Ibid., 1634.

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an interesting question, but it need not detain us.13 What is fairly clear, however, is that these changes occurred concurrently and, I submit, were mutually reinforcing. By the mid-19th century, the case-by-case approach to chartering corporations “gave way to general incorporation statutes.”14 Pursuant to these general incorporation statutes, the act of incorporation “was merely a formality of filing” the requisite paperwork with state authorities,15 somewhat analogous to the process by which most individuals today obtain licenses and other such approvals from governmental bureaucracies.16 This new approach was revolutionary, and made it untenable to maintain a conceptualisation of the corporation as a mere concession of the state.17 Replacing the concessionary perspective came the ‘aggregation theory,’ of the corporation, under which the corporation is conceived of in terms ­similar to that of a partnership: largely an aggregation of individuals, joining together to run a business enterprise for profit.18 But as corporations grew in size and complexity, the role of their governing bodies—their boards of d­ irectors—became the object of increasing attention.19 For the existence of a board of directors, with robust powers and responsibilities, helps distinguish the corporation from a partnership or other aggregate undertakings. The board of directors’ unique role serves to underscore the distinctive ‘separation of ­ownership and control’ that characterises the corporation.20 Thus, with this attention on boards of directors came an abandonment of the aggregation theory and an embrace of the ‘real entity theory’ of the ­corporation – a concept with medieval roots.21 Real entity theory posits that 13 14

Padfield, Stefan J. “Rehabilitating concession theory.” Okla. L. Rev. 66 (2013): 327. Ripken, Susanna K. “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” Fordham J. Corp. & Fin. L. 15 (2009): 97. 15 Ibid. 16 Weidner, Donald J. “A Perspective to Reconsider Partnership Law.” Fla. St. UL Rev. 16 (1988): 1. (“Creating a corporation is similar to what the process for obtaining a driver’s license would be if competency testing were stripped away.”). 17 See Ripken, “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” 18 See Joo, Thomas W. “The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurispurdence.” Wash. ULQ 79 (2001): 1. 19 See generally Berle, Adolf Augustus, and Gardiner Coit Means. “Modern corporation and private property.” (1932). 20 The shareholders own the company, but the board of directors controls the company. Tsuk, Dalia. “Corporations without labor: The politics of progressive corporate law.” ­University of Pennsylvania Law Review 151, no. 6 (2003): 1861–73. 21 See ibid.; see also Hager, Mark M. “Bodies politic: The progressive history of o­ rganizational real entity theory.” U. Pitt. L. Rev. 50 (1988): 575–80.

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the corporation is a sui generis phenomenon, with a whole greater than (and distinct from) the sum of its parts.22 As Susanna Kim Ripken eloquently explained: Under the real entity view, a corporation can have its own will and pursue its own goals in a way that cannot be equated with the will and goals of each individual member. The corporation has a “collective consciousness” or “collective will” that results from discussion and compromise among the individual members, and may not reflect the particular preferences of any one person. Actions of the corporation are qualitatively different from those of its individual constituents, who each may have contributed some part to the act, but no one person can be said to be responsible for the unified corporate action.23 Contrary to concessionary theory, real entity theory resonates well with the human experience, as alluded to at the beginning of this part: real entity t­ heory reflects the “‘natural’ tendency of human beings to organize themselves into productive groups.”24 The corporation does not appear to truly owe its existence to the sovereign’s acquiescence, but rather to natural human initiative. Indeed, the state’s approval of a corporate charter might be compared, roughly, to its issuance of a birth certificate: this action more properly can be said to constitute government’s recognition of a creature – not the government’s ­creation thereof. As Morton Horwitz explained, real entity theory conceptualises the corporation as an “entity whose existence is prior to and separate from the state.”25 Alas, the tsunami of the ‘law and economics’ movement in the latter half of the Twentieth Century washed away – at least for most of the legal ­academy – the real entity understanding of the corporation, replacing it with the ‘nexus of contracts’ model.26 Pursuant to this ‘contractarian’ approach, the corporation is little more than a legal fiction employed to represent the myriad of

22 See Ripken, “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” 23 Ibid., 114. 24 Blair, Margaret M. “Corporate personhood and the corporate persona.” U. Ill. L. Rev. (2013): 805. 25 Horwitz, Morton J. “Santa Clara revisited: The development of corporate theory.” W. va. l. rev. 88 (1985): 173. 26 Phillips, Michael J. “Reappraising the real entity theory of the corporation.” Fla. St. UL Rev. 21 (1993): 1061.

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contracts (both explicit and implicit) that, taken collectively, give rise to the corporation.27 John Dewey famously decried the indeterminacy of corporate theory.28 He posited that practically any theory could be used to support any particular opinion on corporate law.29 Although there may be some truth in that, it nevertheless seems fair to recognise that certain uses of corporate theory to support or undermine a given proposition can be labeled ‘more reasonable’ or ‘less reasonable.’ Some theoretical conceptualisations of the corporation genuinely lend themselves to support particular approaches to the corporation and corporate law better than others. Thus, cognizant of Dewey’s protestations, it would benefit us to consider the implications of corporate theory to the question of corporate religious liberty. We should also consider the implications of corporate theory to the question of ‘shareholder primacy’ – the widely embraced norm that the primary objective of a corporation’s board of directors should be to maximise corporate profits for the benefit of corporate shareholders.30 For the degree to which shareholder primacy can be abandoned, assertions of corporate social responsibility can more plausibly be pressed.31 This is significant because this same rationale, used to justify displacement of shareholder primacy to make room for corporate social responsibility, also justifies a corporation’s embrace of religious values and principles,32 and for reasons which we become clear later, this is relevant to our inquiry.33 Concessionary theory, which posits that the corporation exists only because the state deems it an expedient means of serving the common good,34 does not furnish much support at all for shareholder primacy. For similar reasons, it fails to provide a basis upon which the corporation may persuasively assert constitutional rights and privileges.35 It is no surprise, therefore, that modern-day 27 Ibid. 28 See ibid., 1079–81. 29 See ibid. 30 See Smith, D. Gordon. “The shareholder primacy norm.” J. Corp l. 23 (1998): 277. 31 See Wells, C. A. “Cycles of corporate social responsibility: An historical retrospective for the twenty-first century.” U. Kan. l. rev. 51 (2002): 77. 32 See Bodie, Matthew T. “The Next Iteration of Progressive Corporate Law.” Wash. & Lee L. Rev. 74 (2017): 739. 33 See Demkovich v. St. Andrew the Apostle Par., Calumet City, 3 F.4th 968, 975–77 (7th Cir. 2021); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 341 (1987) (Brennan, J., concurring) 34 See Colombo, Ronald J. The first amendment and the business corporation. Oxford ­University Press, 2015; Pollman, Elizabeth. “Reconceiving corporate personhood.” Utah L. Rev. (2011): 1629. 35 See Padfield, Stefan J. “Rehabilitating Concession Theory.” Okla. L. Rev. 66 (2014): 327.

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proponents of concessionary theory are typically those who seek to de-­ emphasise the primacy of shareholders in order to emphasise the ­importance of corporate social responsibility,36 as well as seek to rein in corporate assertions of constitutional rights.37 For reasons discussed previously,38 concessionary theory no longer holds much sway over corporate theorists – such that this theory can be deemed a “marginaliz[ed]” one.39 Although the implications of real entity theory are not as clear as those flowing from concessionary theory, some certainly can be discerned. Given its natural law heritage and trappings, real entity theory well supports the notion that the corporation itself is entitled to certain rights and privileges on account of its very nature.40 For “if the corporation is viewed as a real and natural entity, much like an individual person, the corporation should be entitled to the same rights and privileges that are afforded to natural persons.”41 With regard to the question of shareholder primacy, it bears noting that the modern manifestation of real entity theory arose as a reaction to the untrammeled individualism of Nineteenth Century America.42 Indeed, the real entity theory posits “the existence of a sharp distinction between the corporate entity and the shareholders.”43 Of course, the complete abandonment of shareholder primacy does not ineluctably follow from this, but it does suggest a devaluation of the corporation’s shareholders: the shareholders are considered part of the corporation, not synonymous with the corporation. The corporation has values and a will of its own – separate and apart from those of the shareholders.44 Conversely, to paraphrase King Louis XVI’s famous quip “L’état, c’est moi,”45 under aggregation theory the shareholders are the corporation.46 As such, 36 See, e.g., Padfield, Stefan J. “Corporate Social Responsibility & Concession Theory.” Wm. & Mary Bus. L. Rev. 6 (2015): 1. 37 See Padfield, Stefan J. “Rehabilitating Concession Theory.” Okla. L. Rev. 66 (2014): 327. 38 See Padfield, Rehabilitating Concession Theory.” 39 Padfield, Stefan. “Rehabilitating Concession Theory.” Oklahoma Law Review 66, no. 2 (2014): 327. 40 Horwitz, Morton J. “Santa Clara Revisited: The Development of Corporate Theory.” West Virginia Law Review 88, no. 2 (1986): 5. 41 Ripken, Susanna K. “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” Fordham J. Corp. & Fin. L. 15 (2009): 97. 42 See Horwitz, Morton J. “Santa Clara Revisited: The Development of Corporate Theory.” West Virginia Law Review 88, no. 2 (1986): 5. 43 Ibid., 214. 44 See Ripken, “Corporations are people too: A multi-dimensional approach to the corporate personhood puzzle.” 45 Ye v. Zemin, 838 F.3d 620 (7th Cir. 2004). 46 See “Corporations are people too: A multi-dimensional approach to the corporate ­personhood puzzle.”

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aggregate theory would seem best to support the concept of shareholder primacy, given its understanding of the corporation as something quite similar to a partnership.47 Similarly, it would seem to support a robust understanding of corporate constitutional rights, because people do not ordinarily lose their rights when they band together and act as a group.48 Although not as discredited as concessionary theory, aggregation theory has generally given way to real entity theory for reasons previously discussed.49 We finally return to the contractarian model, and if ever there was a theory that Dewey’s criticism applied to, it would be contractarianism. For of all the conceptualizations of the corporation discussed, the contractarian model is the most indeterminate when it comes to justifying shareholder primacy, and the least helpful in assessing claims to corporate constitutional rights.50 This is because the content of the various ‘implicit’ contracts constituting the ­corporation appear largely to be in the eyes of the beholder. For example, the shareholder primacy norm has been both defended and attacked by scholars on contractarian grounds.51 Similarly, the legitimacy of a corporation’s assertion of constitutional rights – such as those protected by the Free Exercise Clause – has been both asserted on contractarian grounds52 and challenged on those same grounds.53 Perhaps on account of these and other difficulties, 47 See Morton, “Santa Clara Revisited: The Development of Corporate Theory.” 48 See Magpantay, Glenn D. “Associational Rights and Standing: Does Citizens United Require Constitutional Symmetry between the First Amendment and Article III.” NYUJ Legis. & Pub. Pol’y 15 (2012): 667. 49 See Berle, Adolf Augustus, and Gardiner Coit Means. “Modern corporation and private property.” (1932); Joo, Thomas W. “The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurispurdence.” Wash. ULQ 79 (2001): 1; Tsuk, Dalia. “Corporations without labor: The politics of progressive corporate law.” University of Pennsylvania Law Review 151, no. 6 (2003): 1861–73. 50 See Sugin, Linda. “Theories of the Corporation and the Tax Treatment of Corporate Philanthropy.” NYL Sch. L. Rev. 41 (1997): 835. 51 See Eisenberg, Melvin A. “The conception that the corporation is a Nexus of contracts, and the dual nature of the firm.” Journal of Corporation Law 24, no. 4 (1999): 819. 52 Hutchison, Harry G. “Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Chief Justice Strine.” Harv. JL & Pub. Pol’y 39 (2016): 703.(“within the nexus-of-contract framework, the structure of governance is contingent and contractual, enabling shareholders to unify ownership and control and thus exercise the same prerogatives as owners of non-corporate businesses, all while maintaining limited liability and without adhering strictly to separation of ownership and control. As a result of this custom-tailored ­process, shareholders regularly impose their religion on corporations.”). 53 Mohapatra, Seema. “Time to lift the veil of inequality in health-care coverage: Using corporate law to defend the Affordable Care Act.” Wake Forest L. Rev. 50 (2015): 137. (“Under the nexus of contracts theory, the government’s argument concerning the contractual

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the real entity theory continues to hold sway – especially outside of the legal academy.54 Part 2: Religious Liberty in the United States The United States Constitution recognises the right to the “free exercise” of ­religion.55 Although framed in the First Amendment as a restriction on ­Congress’s power (and therefore only upon the federal government), the ­Fourteenth Amendment has been interpreted as subjecting the actions of state and local governments to the strictures of the Constitution’s religious liberty protections as well.56 The protection of religious liberty rights was added to the United States for a variety of reasons, some theological and some practical.57 Of particular relevance for our purposes is James Madison’s famous defence of religious liberty on explicitly pluralistic grounds: “It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.”58 In other words, religious liberty must be protected because “every man” owes a duty to God that supersedes his duties to the State. This profound assertion captures well the incredible importance of America’s “first freedom”59 in the minds of its drafters. The operative constitutional text is remarkably terse: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise obligations of an employer to an employee is more compelling than the corporation’s argument that its religious beliefs … are offended”). 54 Vischer, Robert K. “Do For-Profit Business Have Free Exercise Rights.” J. Contemp. Legal Issues 21 (2013): 369. Silvestri, Elizabeth M. “Free Speech, Free Press, Free Religion: The Clash between the Affordable Care Act and the For-Profit, Secular Corporation.” Suffolk UL Rev. 48 (2015): 266–7. 55 U.S. Const. amend. I. 56 Cantwell v. State of Connecticut, 310 U.S. 296 (1940). 57 See McConnell, Michael W. “Why is Religious Liberty the First Freedom.” Cardozo L. Rev. 21 (2000): 1243. 58 Ibid., 1246 (quoting Madison, James., “Memorial and Remonstrance Against Religious Assessments” (1785) (citing Everson v. Board of Educ., 330 U.S. 1 (1946) (Rutledge, J., ­dissenting). It bears in mind to recall that James Madison has been given the title “Father of the Constitution.” E.g. Hart, James. “James Madison; Father of the Constitution, 1787– 1800. By Irving Brant (New York: The Bobbs-Merrill Company, Inc. 1950. Pp. 520. $6.00.).” American Political Science Review 44, no. 3 (1950): 755–756. 59 McConnell, “Why is Religious Liberty the First Freedom.”

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thereof…”60 The first half of this text is known as the “Establishment Clause,” and its primary purpose has been to police the relationship between Church and State.61 Of relevance to our inquiry is the second half of this text, known as the “Free Exercise Clause.” Any momentary reflection upon the Free Exercise Clause immediately brings to mind important questions, such as: What is the definition of ‘religion?’ What constitutes ‘free exercise?’ What qualifies as a ‘prohibition?’ The Supreme Court has struggled mightily over these and related concerns over the past two centuries.62 As to the first of these questions, it appears as though the Supreme Court has adopted a modestly broad definition of what constitutes religion. In what has been called a ‘functional’ approach, the Court suggests that in assessing whether a particular belief is “religious” in nature, one must examine the “role [it] plays in the individual’s or group’s life,” and compare it to the role that traditional religious beliefs play in the lives of traditional religious believers.63 The Supreme Court has added that for a belief to qualify as religious, it may not be “[p]urely secular.”64 Equally vexing had been the question of what constitutes an impermissible ‘prohibition’ upon the ‘free exercise’ of one’s religion. Clarity had been achieved with regard to two matters related to this: (1) that the government may in no way attempt to coerce a person with regard to his or her religious beliefs per se,65 and (2) that the government may in no way target the conduct of a particular sect, or of religious believers in general, for special circumscription – in other words, the government may not engage in “intentional discrimination” against religion generally or a particular religion.66 What remained incredibly confusing was the degree to which a person could challenge a law or regulation that infringed upon his religiously motivated conduct – especially if said law or regulation were not targeting religious

60 U.S. Const. amend I. 61 See Tribe, L. H. (1988). §14–3. In American Constitutional Law (2nd ed.). essay. 62 See ibid., §14–8, §14–13. 63 Ibid., §14–6. 64 Frazee v. Illinois Dep’t of Emp. Sec., 489 U.S. 829 (1989) (quoted in Colombo, Ronald J. “Corporate Entanglement with Religion and the Supression of Expression.” Seattle ­University Law Review 45 (2022). 65 Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) (citing Torcaso v. Watkins, 367 U.S. 488 (1961)). 66 Erickson v. Bd. of Governors of State Colleges & Universities for Ne. Illinois Univ., 207 F.3d 945 (7th Cir. 2000).

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conduct per se.67 Put differently: the degree to which a religious adherent could seek an exemption from a law of general applicability. The U.S. Supreme Court attempted to resolve the issue in Employment Division v. Smith,68 holding that ordinarily, no such exemption is constitutionally required in such cases.69 Thus, for example, a law prohibiting the use of peyote (a controlled substance) is as applicable to Native Americans who wish to use peyote in religious observances as it is to anyone else.70 The Court in Smith hastened to add that although the Free Exercise Clause does not require judicial recognition of an exemption to a law of generally applicability, the First Amendment permits the promulgation of legislative accommodations to laws of general applicability for the benefit of religious believers.71 Congress swiftly acted upon this acknowledgment, passing the Religious Freedom Restoration Act (“RFRA”) which grants religious believers the right to challenge any government action that infringes upon the exercise of their religion, even if the action in question is a neutral law of general applicability.72 More specifically, pursuant to RFRA, if a person’s exercise of religion is “substantially burdened” by the government (“even if the burden results form a rule of general applicability”) the government must prescind from enforcement of the law or continuation of the action in question unless it is able to demonstrate that its burden-producing activity (1) “is in furtherance of a compelling governmental interest,” and (2) “is the least restrictive means of furthering that compelling government interest.”73 This is known as ‘strict scrutiny,’ and affords claimants a powerful means by which to challenge ­governmental activity that infringes upon the practice of religion.74 Due to the federalist nature of American legal system, including the l­ imited power of the U.S. Congress to enact legislation binding upon state governments, the Religious Freedom Restoration Act was held unconstitutional as applied to the states.75 This sparked the promulgation of ‘state RFRA s’ –

67 See Tribe, “American Constitutional Law.” 68 Employment Div. v. Smith, 494 U.S. 872 (1990). 69 See ibid., 878–79. 70 See ibid., 874–76. 71 See ibid., 890. 72 Religious Freedom Restoration Act (2006). 73 Ibid. 74 Rhodes, John. “Up in Smoke: The Religious Freedom Restoration Act and Federal ­Marijuana Prosecutions.” Okla. City UL Rev. 38 (2013): 319. 75 See City of Boerne v. Flores, 521 U.S. 507 (1997).

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s­ tate-by-state legislative enactments typically mirroring the federal Religious Freedom ­Restoration Act.76 Thus, where things stand with regard to religious liberty in the United States in the third decade of the Twenty-First Century is as follows: 1. The Free Exercise Clause of the First Amendment to the U.S. Constitution prohibits the government (state or federal) from undertaking any action that would target religious belief or practice per se; its prohibitions do not extend to neutral laws or actions of general applicability that only encroach upon religious belief or practice happenstantially. 2. The Religious Freedom Restoration Act provides a means by which neutral laws of general applicability that encroach upon religious beliefs or practices can be challenged; such challenges are resolved via the ‘strict scrutiny’ test. If the law in question has been promulgated by a state or local government, the challenger would need to invoke his or her stateRFRA for protection. Part 3: Corporate Free Exercise Before turning to the religious liberty rights of business corporations, let us first examine the religious liberty rights of ‘corporate’ entities generally: that is, groups and organisations, whether for-profit or nonprofit. As Alexis de Tocqueville so eloquently observed almost two centuries ago, associations serve an indispensable role in any nation that purports to be free.77 They occupy a critical middle ground between citizen and state, providing a means by which individuals can join together to fulfill important needs and pursue valuable objectives.78 De Tocqueville stated that “the right of association is almost as inalienable as the right of personal liberty. No legislator can attack it without impairing the very foundations of society.”79 When an association is religious in nature, I submit that its significance is magnified, as it serves to simultaneously further a citizen’s right to exercise

76

As of this writing, 21 states have adopted a Religious Freedom Restoration Act. See Baumgardner, Paul, and Brian K. Miller. “Moving from the Statehouses to the State Courts: The Post-RFRA Future of State Religious Freedom Protections.” Alb. L. Rev. 82 (2018): 1385. 77 See Colombo, Ronald J. “The Corporation as a Tocquevillian Association.” Temp. L. Rev. 85 (2012): 1. (citing Alexis de Tocqueville, Democracy in America 224 (Henry Reeve trans., Bantam Books 2000) (1835)). 78 See ibid. 79 Ibid. (quoting Alexis de Tocqueville, Democracy in America (Bantam Books, 2000) 224.

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his religion.80 This suggests that religious associations be afforded the highest level of protection that a society can muster in recognition of the inalienable rights they serve to effectuate. Therefore, it should come as no surprise to learn that nonprofit religious organisations, such as schools, hospitals, societies, and other entities, have long enjoyed the protections of the Free Exercise Clause.81 Indeed, churches themselves are typically organised as nonprofit corporations,82 and churches naturally receive extremely strong protection under the First Amendment.83 Were this not the case, it is difficult to envision how religious liberty could be genuinely protected, given that so much of what constitutes religion is communal in nature.84 But what about for-profit corporations that are predicated upon particular religious values and attempt to operate in accordance with them? As I have detailed elsewhere, the rise of such corporations has been an undeniable and noteworthy development in the American business landscape.85 Is their categorisation as ‘for-profit’ instead of ‘nonprofit’ constitutionally relevant for purposes of the Free Exercise Clause? Regarding other constitutional provisions, the Supreme Court has clearly ruled that business corporations 80

The main parts of religious liberty are, in their elemental form, twofold: 1) the autonomy of the individual in his or her choice of religion and the freedom to put a chosen faith into practice; and 2) protection against interference or prohibition of the exercise of any faith. The Supreme Court has routinely demonstrated that non-interference and non-preferential treatment for one religion over another are paramount considerations of the First Amendment and have incorporated these rules against the states through placing their imprimatur on various government and private actions. See McConnell, Michael W. “Accommodation of religion.” The Supreme Court Review 1985 (1985): 1–59; see, e.g., Torcaso v. Watkins 367 U.S. 488 (1961) (finding that the First Amendment was violated by a Maryland requirement that a candidate for public office declare a belief in God to be eligible for the position by giving preference to candidates who believed in God and were willing to state their beliefs); Sherbert v. Verner 374 U.S. 398 (1963) (finding that the state of South Carolina violated the Free Exercise Clause of the First Amendment in denying unemployment benefits to a person for turning down a job, because it required him or her to work on the Sabbath). 81 See Bassett, William W. “Private religious hospitals: Limitations upon autonomous moral choices in reproductive medicine.” J. Contemp. Health L. & Pol’y 17 (2001): 455. see also Cordish, Melissa Fishman. “A Proposal for the Reconciliation of Free Exercise Rights and Anti-Disrimination Law.” UCLA L. Rev. 43 (1996): 2113. 82 See Jackson, Bruce B. “Secularization by Incorporation: Religious Organizations and ­Corporate Identity.” First Amend. L. Rev. 11 (2012): 90. 83 See Demkovich v. St. Andrew the Apostle Par., Calumet City, 3 F.4th 968 (7th Cir. 2021). 84 See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) (Brennan, J., concurring). 85 See Colombo, “The first amendment and the business corporation.”

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enjoy the same standing and rights as nonprofit corporations and individuals, stating in 1978, for example, that, “[i]t has been settled for almost a century that [business] corporations are persons within the meaning of the Fourteenth Amendment.”86 The Court has not, however, specifically addressed the applicability of the Free Exercise Clause to business corporations, and lower courts have split on this question.87 Nevertheless, the Supreme Court’s decision in Burwell v. Hobby Stores, Inc.88 provides a rather strong indication of how the Court would rule. Burwell concerned objections raised by three closely held, for-profit business corporations against the U.S. Department of Health and Human Services’ (HHS) demand that they provide health insurance coverage “for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.”89 The corporate claimants asserted their objections under both the Free Exercise Clause of the First Amendment and RFRA. As is its custom, the Supreme Court declined to address the constitutional (First Amendment) issue, deeming that the case could be decided upon statutory (RFRA) grounds.90 By its terms, RFRA applies to “a person’s” exercise of religion.91 The Act’s definitional section does not address the term “person,”92 which requires the reader to consult the Dictionary Act “unless the context indicates otherwise.”93 The Court noted that there is “nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition” of “person.”94 Consequently, for the scope of RFRA’s protections, it turned to the Dictionary Act. As per the Dictionary Act, a “person” is defined to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”95 This readily dispensed with the issue: the corporate plaintiffs were entitled to bring claims against the government pursuant to RFRA.96 Nevertheless the government (HHS) persisted in arguing that the corporate plaintiffs lacked standing to bring suit under RFRA. As the Supreme 86 First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765 n.15 (1978). 87 See Lyle, John. “Contraception and Corporate Personhood: Does the Free Exercise Clause of the First Amendment Protect for-Profit Corporations that Oppose the Employer ­Mandate.” U. Dayton L. Rev. 39 (2013): 137. 88 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). 89 Ibid., 688. 90 See ibid., 736. 91 Religious Freedom Restoration Act (2006). 92 See ibid. 93 Burwell, 573 U.S. at 707 (2014). 94 Ibid., 708. 95 Dictionary Act (2012). 96 Burwell, 573 U.S. at 707–709.

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Court adroitly observed, “the principal argument advanced by HHS … focuses not on the statutory term ‘person’ but on the phrase ‘exercise of religion.’”97 In response, the Court proceeded to consider the question of whether a business corporation could exercise religion, dismantling one-by-one the arguments asserted to the contrary.98 First, the Court observed that the mere fact that the plaintiffs were o­ rganised as corporations could not be dispositive, as it was conceded that non-profit corporations enjoy standing under RFRA.99 Second, the Court stated that a profit-making objective could not disqualify plaintiffs from RFRA’s protections, as Supreme Court precedent had long recognised the ability of for-profit enterprises to assert Free Exercise Claims (such as those brought by sole proprietors).100 Third, the Court rejected the notion that business corporations are invariably organised to maximise shareholder profits “at the expense of everything else.”101 Echoing some of what we discussed in Part 1 of this Chapter and will address further in Part 4, the Court observed that: For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and ­charitable aims might organize as for-profit corporations because of 97 Ibid., 709. 98 See ibid., 709–717. 99 See ibid., 709. 100 See ibid., 709–10. 101 Burwell, 573 U.S. at 711–12.

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the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.102 Fourth, the Court showed little patience for the argument that RFRA’s reach was beholden to that of Free Exercise Clause jurisprudence prior to its enactment (during which time no business corporation had yet asserted a Free Exercise claim).103 As the Court appropriately stated, this argument was particularly “absurd” and marked by a certain degree of obvious “weakness.”104 Finally, the Court rejected the contention that “it is difficult as a practical matter to ascertain the sincere ‘beliefs’ of a corporation.”105 The Court noted that “HHS has … provided no evidence” that there exists a “purported problem of determining the sincerity of an asserted religious belief” on the part of a business corporation.106 Not surprisingly, the Court concluded that the corporate plaintiffs had standing to bring suit under RFRA.107 I suggest that the decision in Burwell foreshadows any decision the Court may ultimately render on the question of corporate standing under the First Amendment. Recall that the text of the First Amendment does not mention “person,” but rather is framed entirely as a prohibition on the powers of ­Congress: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…”108 In other words, the First Amendment is written in a way keyed to the protection of conduct, not persons, individuals, or other potential claimants. Since the conduct that cannot be prohibited is the “free exercise” of religion, and since the Burwell decision quite clearly held that for profit corporations (or at least closely held for profit corporations) can indeed engage in the exercise of religion, it naturally follows that business corporations can avail themselves of the protections of the Free Exercise Clause.

102 Ibid., 712–13. 103 Ibid., 713–15. 104 Ibid., 715–16. 105 Ibid., 717. 106 Burwell, 573 U.S. at 718. 107 See ibid., 719. The Court also proceeded to rule in favor of the corporate claimants on the merits, holding that application of the strict scrutiny test requires the government to exempt plaintiffs from the offending provisions of the HHS regulations. See ibid., 719–36. 108 U.S. Const. amend I.

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Part 4: Corporate Social Responsibility and the Religiously Expressive Corporation It can be argued that the widespread embrace of ‘corporate social ­responsibility’ across businesses in America has never been more pronounced.109 Pursuant to this embrace, it is understood and expected that corporations will undertake “activities for reasons other than simply enhancing profits.”110 It would seem as though the religiously expressive corporation – the corporation that is guided by religious principles and values conjoined to an eye toward profit – should fit comfortably into this new era of American business. And with the exception of abandoned corporate conceptualizations (concessionary theory of the firm),111 the advent of the religiously expressive corporation is readily justifiable on theoretical grounds as well. Yet, curiously, the religiously expressive corporation has not been warmly embraced by modern society.112 Despite the long history of religion as being at the forefront of positive social change in America,113 and despite the fact that few corporations exemplify the concept of putting principle (if not people) over profits more concretely than the religiously expressive corporation.114 109 See Driebusch, C. (2021, September 8). For Allbirds, Warby Parker, Other Fall IPO s, Greed is Out. Do-Gooding is In. The Wall Street Journal. Retrieved from https://www.wsj.com/articles /for-chobani-allbirds-other-coming-ipos-greed-is-out-do-gooding-is-in-11631093400; Herren Lee, A. (2021, June 28). You Cannot Direct the Wind, But You Can Adjust Your Sails. SEC.gov. Retrieved from https://www.sec.gov/news/speech/lee-climate-esg-board-of -directors; Kraik, Alexander T. “Environmental, Social, and Governance Issues: An Altered Shareholder Activist Paradigm.” Vt. L. Rev. 44 (2020): 493. 110 Berger‐Walliser, Gerlinde, and Inara Scott. “Redefining corporate social responsibility in an era of globalization and regulatory hardening.” American Business Law Journal 55, no. 1 (2018): 167–218. 111 See Part 1. 112 E.g., Strine Jr, Leo E. “A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications.” J. Corp. L. 41 (2015): 71. 113 See McConnell, Michael W. “Five reasons to reject the claim that religious arguments should be excluded from democratic deliberation.” Utah L. Rev. (1999): 639. (“Indeed, virtually every important movement for social and political reform that was to appear in America would be led by people with religious motivations making religious arguments,” including the “abolition of slavery,” “labor reform,” “social welfare legislation,” and “civil rights.”). But see Lipkin, Robert Justin. “Reconstructing the Public Square.” Cardozo L. Rev. 24 (2003): 2025.(“Abolitionism and the civil rights movements, for instance, fought against slavery and segregation, both of which were vigorously defended on religious grounds. Similarly, the movement for women’s suffrage and equal rights came about in reaction to a religiously grounded patriarchy.”). 114 See Primrose, Nicholas A. “Has Society Become Tolerant of Further Infringement on First Amendment Rights.” Barry L. Rev. 19 (2014): 324–30.

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Why might this be so? Perhaps an examination of the plight of Trinity Western University (TWU) can help provide an explanation. Although this case does not involve a for-profit business corporation, I suggest it illustrates well what is giving rise to the cognitive dissonance referred to above. In 2013, TWU undertook the creation of “the first faith-based law school in Canada.”115 Consistent with TWU’s undergraduate standards, the proposed law school would have included as a condition of admission a matriculant’s pledge to TWU’s “community covenant.” This required an agreement to (among other things) “voluntarily abstain from … sexual intimacy that violates the sacredness of marriage between a man and a woman.”116 The community covenant was deemed a discriminatory affront to Canada’s LGBTQ population, and on account of this TWU’s proposed law school was denied accreditation by some of the relevant Canadian authorities.117 TWU brought suit, ultimately losing its case before the Supreme Court of Canada.118 Of particular interest is one of the rationales relied upon by the Canadian Supreme Court in its decision against TWU. The Court noted that denying accreditation to TWU’s proposed law school furthered the accreditation organisations’ interest in “supporting diversity” within the legal profession.119 In other words, as per the Court’s logic, denying accreditation to what would have been Canada’s first and only faith-based law school, specifically on account of its faith-based admission standards, would justifiably “support[] diversity.” This underscores profoundly divergent views on how to define diversity and the related concept of pluralism. One view of pluralism and diversity is broad, embracing differences of opinion and belief that are deep and fundamental in nature. This view can fairly be characterised as the “liberal” view of pluralism and diversity (understanding

115 Smith, G. A., & Stensel, S. (2015, November 3). U.S. Public Becoming Less Religious. Pew Research Center’s Religion & Public Life Project. Retrieved from https://www.pewforum .org/2015/11/03/u-s-public-becoming-less-religious/. 116 Community covenant agreement – TWU. (n.d.). Retrieved from https://www.twu.ca/sites /default/files/community_covenant_june_25_2019.pdf. In 2018, TWU made signature of the Community Covenant optional. See Ferguson, D. (2018, August 14). B.C. School’s pledge to ban sex outside of heterosexual marriage now optional for students. TheProgress.com. Retrieved from https://www.theprogress.com/news/breaking-trinity-western-university -changes-controversial-covenant/. 117 See Boersma, John. “The Accreditation of Religious Law Schools in Canada and the United States.” BYU L. Rev. (2016): 1081. 118 See Marzano, Vito John. “Canadian Supreme Court Rejects Religious Exceptionalism to Discriminate Against Lgbtq Law Students.” LGBT L. Notes. (2018): 372. 119 Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (Can. 2018).

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“liberal” in its classical American sense).120 Pursuant to the liberal worldview, “toleration, mutual respect, observing the rights of others” are deemed civic virtues.121 Consequently, a liberal understanding of pluralism and diversity would compel toleration (and, most likely, defence) of the right of corporations to embrace and advance whatever particular agenda or worldview they elected to, whether secular or religious in nature. A second view of pluralism is more qualified.122 This view can fairly be ­characterised as the ‘progressive’ view of pluralism and diversity (understanding ‘progressive’ in its modern American sense).123 The progressive does not necessarily deem virtuous the same qualities as does the liberal – questioning, for example, even that most quintessential of liberal values, freedom of speech. Other values, such as “equity, inclusion, redistribution, and social justice” are prioritised.124 Consequently, a dethroned toleration need not extend to ideas or beliefs that are deemed inimical to progressive aims and values – and ­especially not to those found to be intrinsically intolerant or illiberal.125 120 See Movsesian, Mark L. “Markets and morals: The limits of Doux Commerce.” Wm. & Mary Bus. L. Rev. 9 (2018): 449. (“[C]lassical liberalism and pluralism are related. In fact, they mutually reinforce one another: classical liberalism promotes pluralism, and pluralism, in turn, promotes classical liberalism.”) (internal citations omitted). Or, as per John Inazu, a “confident pluralism.” Inazu, John D. “A confident pluralism.” S. Cal. L. Rev. 88 (2014): 587. 121 Sandel, Michael J. “The constitution of the procedural republic: Liberal rights and civic virtues.” Fordham L. Rev. 66 (1997): 1. 122 See Hinkle, A. B., Binion, B., Boehm, E., Sullum, J., Doherty, B., & Harrigan, F. (2017, O ­ ctober 11). Diversity is Not Enough. We Need Pluralism. Reason.com. Retrieved from https://reason .com/2017/10/11/diversity-is-not-enough-we-need-pluralis/. 123 Inazu, John D. “A confident pluralism.” S. Cal. L. Rev. 88 (2014): 587.; Weiner, G. (2018, April 14). When Liberals Become Progressives, Much is Lost. The New York Times. Retrieved from https://www.nytimes.com/2018/04/13/opinion/moynihan-liberals-progressives-lost .html. 124 See Davidson, Nestor M. “The dilemma of localism in an era of polarization.” Yale LJ 128 (2019): 954. 125 Inazu, John D. “A confident pluralism.” S. Cal. L. Rev. 88 (2015): 587.(“Progressives in ­California and Tennessee are able to rid their campuses of conservative religious groups with traditional beliefs about sexuality. We can readily multiply the list of examples: the suspension of the star of Duck Dynasty, the threats by local officials to deny Chick-fil-A permits, the forced resignation of Mozilla’s CEO, and the legislative efforts in Arizona have also made headlines in recent months.”) (internal citations omitted); Smith, G. A., & Stensel, S. (2015, November 3). U.S. Public Becoming Less Religious. Pew Research Center’s Religion & Public Life Project. Retrieved from https://www.pewforum.org/2015/11/03/u-s -public-becoming-less-religious/ (“Because progress is an unadulterated good, it super�sedes the rights of its opponents. This is evident in progressive indifference to the rights of those who oppose progressive policies in areas like sexual liberation.”); Thro, ­William E. “No Angels in Academe: Ending the Constitutional Deference to Public Higher E ­ ducation.”

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To date, religiously expressive corporations have been characterised by ­traditional understandings of religion that do not conform to modern ­progressive values.126 As such, their existence, their active participation in society, and especially their assertion of religious liberty rights against those who would otherwise enjoy some of the benefits afforded by progressive legislative ­measures, are unwholesome and viewed with suspicion (if not disdain) by American commentators in the media and the academy (which are predominantly progressive).127 In turn, the progressive capture of what it means to promote diversity and pluralism has largely contributed to the narrative that the religiously expressive corporation undermines, rather than contributes to, these societal values. Consequently, it appears that opposition to the ­religiously expressive corporation is not justifiable on neutral principles of corporate law or theory (which are readily invoked to defend other manifestations of the mission-driven, socially responsible corporation),128 but, rather more likely, the product of ideological animus.

Belmont L. Rev. 5 (2018): 27. (“On many public university campuses, the aspirations of social justice progressives conflict with the fundamental principles of classical liberalism. Wishing to satisfy the often vocal social justice progressives, university officials ignore or diminish the principles of classical liberalism. Such an approach is constitutionally problematic and, ultimately, leads to totalitarianism.”); Cf. Morgan, Gay. “Searching for Common Ground.” J. Contemp. Legal Issues 12 (2002): 757, 769–70. (“Therefore, liberalism’s failure to promote and to protect the existence of those social groups adhering to normative traditions to which liberal individualism is inimical results in the liberal paradox. Individuals comprising those illiberal groups are denied their fundamental liberal right to construct their individual identity within their group’s normative context by their group’s illiberal (but not necessarily evil) normative social ordering’s inevitable inability to flourish in a liberal environment, hence the paradox.”); Blackman, Josh. “Collective Liberty.” Hastings LJ 67 (2016): 623. (“[F]or the left, a robust freedom of speech and religion – no longer serving progressive causes of social justice – can now more easily be subordinated to the “generalized conception of the public good.”). 126 See Crane, Daniel A. “Faith, Reason, and Bare Animosity.” Campbell L. Rev. 21 (1999): 125. 127 See Ryn, Claes G. “Unleashing the Will to Power: Neo-Jacobin Exceptionalism as a Justification for American Global Supremacy.” U. St. Thomas LJ 3 (2005): 211.; Media Bias: Pretty Much All of Journalism Now Leans Left, Study Shows. Investor’s Business Daily. (2018, November 16). Retrieved from https://www.investors.com/politics/editorials/media-bias -left-study/; Gross, N. (2016, May 20). Op-Ed: Professors are overwhelmingly liberal. Do universities need to change hiring practices? . Los Angeles Times. Retrieved from https://www .latimes.com/opinion/op-ed/la-oe-gross-academia-conservatives-hiring-20160520-snap -story.html (college campuses are “bastions of progressivism”). 128 See Bodie, Matthew T. “The Next Iteration of Progressive Corporate Law.” Wash. & Lee L. Rev. 74 (2017): 739; Wells, C. A. “Cycles of corporate social responsibility: An historical retrospective for the twenty-first century.” U. KaN. l. rev. 51 (2002): 77.

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Conclusion Few monuments mark the American experiment in ordered liberty more than the First Amendment to the U.S. Constitution, and few phenomena characterise American society as much as the proliferation of associations. It was ­perhaps inevitable, therefore, that the rights protected by the First ­Amendment would eventually come to be claimed by business associations, including forprofit corporations. Among these rights has been that to religious liberty.129 Although some commentators have decried this development, it is justifiable under the most plausible theoretical conceptualisations of the business corporation. Moreover, this development is in keeping with America’s commitment to religious freedom and pluralism. Separate and apart from the question of constitutional and liberty interests, commentators, including scholars and media pundits across the political spectrum, have long recognised the benefits of affording people the ability to work for, invest in, and patronise businesses that share their values—such as the opportunity of those who identify as environmentalists to gravitate towards “green” companies in their dealings. Society’s commitment to pluralism and diversity should be sincere enough to recognise and respect these same ­benefits when derived from religious values. Bibliography Ammerman, Nancy T. “The Many Meanings of Non-Affiliation.” Empty Churches: Non-affiliation in America, 2021, 27–55. Arner, Douglas. “Development of the American Law of Corporations to 1832.” SMUL Rev 55 (2002): 23. Bassett, William M. “Private Religious Hospitals: Limitations upon Autonomous Moral Choices in Reproductive Medicine.” J. Contemp. Health L. & Pol’y 17 (2000): 455. Baumgardner, Paul, and Brian K. Miller. “Moving from the Statehouses to the State Courts: The Post-RFRA Future of State Religious Freedom Protections.” Alb. L. Rev. 82 (2018): 1385. 129 As has been previously discussed, the right to religious liberty, when asserted against a law of general applicability, is more commonly protected by statute rather than the First Amendment per se. See Employment Div. v. Smith, 494 U.S. 872 (1990); Rhodes, John. “Up in Smoke: The Religious Freedom Restoration Act and Federal Marijuana Prosecutions.” Okla. City UL Rev. 38 (2013): 319.

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Lyle, John. “Contraception and Corporate Personhood: Does the Free Exercise Clause of the First Amendment Protect for-Profit Corporations That Oppose the Employer Mandate.” U. Dayton L. Rev. 39 (2013): 137. Magpantay, Glenn D. “Associational Rights and Standing: Does Citizens United Require Constitutional Symmetry between the First Amendment and Article III.” NYUJ Legis. & Pub. Pol’y 15 (2012): 667. Marzano, Vito John. “Canadian Supreme Court Rejects Religious Exceptionalism to Discriminate Against Lgbtq Law Students.” LGBT L. Notes, 2018, 372. McConnell, Michael W. “Accommodation of Religion.” The Supreme Court Review 1985, 1985, 1–59. McConnell, Michael W. “Five Reasons to Reject the Claim That Religious Arguments Should Be Excluded from Democratic Deliberation.” Utah L. Rev., 1999, 639. McConnell, Michael W. “Why Is Religious Liberty the First Freedom.” Cardozo L. Rev. 21 (1999): 1243. Means, Gardiner. “The Modern Corporation and Private Property.” Routledge, 2017. Meyer, Howard N. “Samuel Eliot Morison, the Oxford History of the American People.” The Journal of Negro History 50, no. 4 (1965): 288–90. Mohapatra, Seema. “Time to Lift the Veil of Inequality in Health-Care Coverage: Using Corporate Law to Defend the Affordable Care Act.” Wake Forest L. Rev. 50 (2015): 137. Movsesian, Mark L. “Markets and Morals: The Limits of Doux Commerce.” Wm. & Mary Bus. L. Rev. 9 (2017): 449. “Op-Ed: Professors Are Overwhelmingly Liberal. Do Universities Need to Change ­Hiring Practices?” Los Angeles Times. Los Angeles Times, May 20, 2016. https:// www.latimes.com/opinion/op-ed/la-oe-gross-academia-conservatives-hiring -20160520-snap-story.html. Padfield, Stefan J. “Corporate Social Responsibility & Concession Theory.” Wm. & Mary Bus. L. Rev. 6 (2015): 1. Panfield, Stefan J. “Rehabilitating Concession Theory.” Okla. L. Rev. 66 (2013): 327. Phillips, Michael J. “Reappraising the Real Entity Theory of the Corporation.” Fla. St. UL Rev. 21 (1993): 1061. Pollman, Elizabeth. “Reconceiving Corporate Personhood.” Utah L. Rev., 2011, 1629. Primrose, Nicholas. “Has Society Become Tolerant of Further Infringement on First Amendment Rights?” Barry Law Review 19, no. 2 (2014): 4. Religious Freedom Restoration Act (2006). Rhodes, John. “Up in Smoke: The Religious Freedom Restoration Act and Federal ­Marijuana Prosecutions.” Okla. City UL Rev. 38 (2013): 319. Ripken, Susanna K. “Corporations Are People Too: A Multi-Dimensional Approach to the Corporate Personhood Puzzle.” Fordham J. Corp. & Fin. L. 15 (2009): 97.

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Ryn, Claes G. “Unleashing the Will to Power: Neo-Jacobin Exceptionalism as a Justification for American Global Supremacy.” U. St. Thomas LJ 3 (2005): 211. Sandel, Michael J. “The Constitution of the Procedural Republic: Liberal Rights and Civic Virtues.” Fordham L. Rev. 66 (1997): 1. Sherbert v. Verner 374 U.S. 398 (1963). Silvestri, Elizabeth M. “Free Speech, Free Press, Free Religion: The Clash between the Affordable Care Act and the For-Profit, Secular Corporation.” Suffolk UL Rev. 48 (2015): 257. Skeel, David A. “Christianity and the Large Scale Corporation.” SSRN, November 1, 2007. Smith, Gordon D. “The Shareholder Primacy Norm.” Journal of Corporation Law 23 (1998): 277. Strine, Leo E. “A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications.” J. Corp. L. 41 (2015): 71. Sugin, Linda. “Theories of the Corporation and the Tax Treatment of Corporate ­Philanthropy.” NYL Sch. L. Rev. 41 (1996): 835. Thro, William E. “No Angels in Academe: Ending the Constitutional Deference to ­Public Higher Education.” Belmont L. Rev. 5 (2018): 27. Torcaso v. Watkins 367 U.S. 488 (1961). Tribe, L. H. (1988). §14–3. In American Constitutional Law (2nd ed.). essay. Tsuk, Dalia. “Corporations without Labor: The Politics of Progressive Corporate Law.” U. of Penn. L. Rev. 151, no. 6 (2003): 1861–1912. U.S. Const. amend. I. “U.S. Public Becoming Less Religious.” Pew Research Center’s Religion & Public Life Project, May 30, 2020. https://www.pewforum.org/2015/11/03/u-s-public-becoming -less-religious/. Vischer, Robert K. “Do For-Profit Business Have Free Exercise Rights.” J. Contemp. Legal Issues 21 (2013): 369. Weidner, Donald J. “A Perspective to Reconsider Partnership Law.” Fla. St. UL Rev. 16 (1988): 1. Weiner, Greg. “When Liberals Become Progressives, Much Is Lost.” The New York Times. The New York Times, April 14, 2018. https://www.nytimes.com/2018/04/13 /opinion/moynihan-liberals-progressives-lost.html. Wells, C.A. “Cycles of Corporate Social Responsibility: An Historical Retrospective for the Twenty-First Century.” U. Kan. L. Rev. 51 (2002): 77. Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005). Ye v. Zemin, 838 F.3d 620 (7th Cir. 2004).

Chapter 12

Legal Approaches to the Individual Manifestation of Religion in the Workplace: A Study of England and Wales Andrew Hambler 1 Introduction Perhaps the most widely publicised example of an employee seeking to express religious convictions in the face of employer hostility is that of Nadia Eweida, a practicing Christian and a part-time employee at British Airways, working at the check-in desk. Miss Eweida wore a small cross on top of her uniform as ‘a personal expression of her faith.’1 In 2004, British Airways introduced a new dress code which allowed employees to wear items such as jewellery under their uniform, provided it was not visible. There were exceptions for religious items but only those considered ‘mandatory’ for a particular religion. In defiance of the new dress code, Miss Eweida continued to wear her cross visibly and, after a warning, was suspended from duties without pay. Although the policy was later amended, and Miss Eweida returned to work, she lodged a claim before an employment tribunal for religious discrimination. The claim, after rejection in first instance and on appeal, progressed to the European Court of Human Rights2 and became something of a causecélèbre. However, the fundamental issues are quite simple and representative of a whole class of individual religious discrimination claims. In brief, the employee with religious beliefs wishes to express these beliefs in the workplace in some specific way. The employer responds negatively on the basis of some underlying imperative. Either the employee acquiesces or refuses to do so and is disciplined or dismissed as a result. In Eweida, an employee wanted to express her faith by wearing a visible cross. In turn, the employer resisted this on the basis of what the domestic courts considered a legitimate aim – ‘brand uniformity … [which] served an important purpose in giving BA a consistent, professional and reassuring image world wide.’3 Faced with these unattractive 1 Eweida v British Airways [2008] UKEAT 0123/082011 [1]. 2 Eweida and Ors v United Kingdom (2013) 57 EHRR 8. 3 Eweida v British Airways (EAT) [13]. © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_013

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alternatives, in this case the religious employee refused to acquiesce and was disciplined by way of an unpaid suspension. What inspires religious employees to express their religious beliefs at work may seem obscure to some observers. Sometimes such employees are characterised by commentators as stubborn, even troublemakers, who disrupt the workplace by accident or design.4 Others are more critical still, seeing religious expression, at least in some forms, as a proxy for chauvinistic and intolerant behaviours.5 Of course motivations are likely to vary, but, given the potential sacrifices that the case law demonstrates some are prepared to make, many employees clearly have strong convictions in this area. Looked at more positively, the basis of these convictions is likely to be either that the employee feels obliged (or mandated) by his or her religion to engage in specific forms of religious expression,6 or, as in Eweida, has a strong personal desire in this direction. It is also possible that employees from minority religions may wish to wear religious dress as an important statement of collective identity, particularly where cultural and religious identity are strongly interlinked.7 Based on an analysis of the available case law, it has been proposed that the way employees with religious convictions express their religious convictions in the workplace can be classified into four key domains:8 1. Dress and personal grooming – like Nadia Eweida, employees with ­religious convictions may express their beliefs through the wearing of religious symbols or other forms of dress and grooming.9 2. Working time – some employees may object to working on particular days or at particular times because of religious obligations.10 Such employees are likely to consider their duties to employers to be eclipsed at these times by their higher obligations to their God. 4 5 6 7 8

9 10

For example, Terry Sanderson, “Paying to be discriminated against,” Guardian, London, July 11, 2008. Aileen McColgan, “Class Wars? Religion and (In)equality in the Workplace”, Industrial Law Journal 38, no. 1 (2009): 1. Leyla Sahin v Turkey (2005) 41 EHRR 8. Sikhs are perhaps the clearest example of this, Sikhism being regarded in English law as ­having the status of both a religion and a race: see Mandla v Dowell Lee [1983] 2AC 548 (HL). See Andrew Hambler, “Managing workplace religious expression within the legal constraints,” Employee Relations 38, no. 2 (2016): 406. A similar typology is also presented in Andrew H ­ ambler, Religious Expression in the Workplace and the Contested Role of Law (Abdingdon: Routledge, 2015). Erica Howard, Law and the Wearing of Religious Symbols (Abingdon: Routledge, 2012). Ruth Gavison and Nahshon Perez, “Days of rest in multicultural societies: private, public separate,” in Law and Religion in Theoretical and Historical Context, ed. Peter Cane, Caroline Evans and Zoe Robinson (Cambridge: Cambridge University Press, 2008), 186–213.

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3.

Conscientious objection – some employees may be reluctant or unwilling to carry out aspects of their normal job role because of conflicts with conscience inspired by religious beliefs.11 4. Religious speech – some employees may consider their workplaces a mission-field,12 in which they should seek to influence their co-workers and possibly customers through offers of prayer, giving out copies of sacred texts, confronting people who are perceived to have adopted sinful lifestyles, and by proselytising with a view to making conversions.13 It is not suggested here that this classification reflects the approach of t­ ribunals or courts but rather that is it useful for the purposes of academic analysis as the four domains throw up slightly different challenges. The four domains will be explored in turn later in this chapter, after the relevant legislation has been first considered. Although the term used so far in this discussion has been ‘religious expression’, an alternative term, ‘manifestation’, is employed within the framework of the European Convention of Human Rights (ECHR);14 it has also been adopted at times in relation to claims under domestic law, including discrimination law.15 ‘Manifestation’ was initially afforded a restricted meaning by the European Court (and Commission), as it did not include actions considered to be merely ‘motivated by’ religious beliefs but only those necessary to, or mandated by, religious beliefs.16 However, in its judgment in Eweida, the European Court of Human Rights overturned its previous approach declaring that ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.17 The Court concluded rather that ‘a sufficiently close and direct nexus between the act and the underlying belief’,18 is enough to engage Article 9. Thus, religious practises such as the wearing of ‘non-compulsory’ religious dress or symbols are now recognised as ‘manifestations’ of religion.

11 12 13 14 15 16 17 18

Erik Litwak, “Conscientious Objection in Public Service Ethics: A Proposed Procedure for Europe,” European Journal of Law Reform 7, no. 1/2 (2005): 79, 85. Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State, 2nd ed. (Oxford: Oxford University Press, 2013). Thomas Berg, “Religious Speech in the Workplace: Harassment or Protected Speech?,” Harvard Journal of Law and Public Policy 22 (1999): 959. At Article 9, see discussion below. See for example Grace v Places for Children [2013] UKEAT 0217/13 [6]. Arrowsmith v United Kingdom (1978) 3 EHRR 218 (Commission Decision). Eweida and Ors v United Kingdom, para 82. Eweida and Ors v United Kingdom, para 82.

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Employers, for their part, may have various reasons for resisting the manifestation of religion by individual employees. One imperative, as in Eweida, may be the desire of an organisation to present a particular corporate image which it fears might be compromised by overt religious expression. Another imperative might result from concerns that either hygiene,19 or health and ­safety,20 might be imperiled by the wearing of religious dress. Equally, there may be concerns that religious expression could hamper effective working,21 or impose ­additional costs on either the employer,22 or other workers.23 Depending on the type of religious expression in play, there may also be concerns about potential actionable harassment of other actors such as co-workers24 or clients.25 2

The Relevant Legal Provisions

Unlike some jurisdictions (e.g. the USA and Canada), there is no binding duty on employers within England and Wales to ‘reasonably accommodate’ religious practices at work.26 What protections there are largely result from the introduction of the Employment Equality (Religion and Belief) Regulations 2003,27 now consolidated into the Equality Act 2010. Under that Act, religion (alongside belief) is classed as a ‘protected characteristic.’28 As a result, employers may not expose employees (or other workers) to ‘less favourable treatment’ (i.e. direct discrimination)29 because of their religious beliefs; nor subject them to a ‘provision, criterion or practice which is discriminatory’ (i.e. 19 20 21 22 23 24 25 26

27 28 29

Singh v Rowntree Mackintosh [1979] IRLR 199 (EAT Sc) and Panesar v Nestlé [1980] ICR 60 (EAT), 64 (CA). Chaplin v Royal Devon and Exeter NHS Foundation Trust (2010) ET Case No. 1702886/09. Azmi v Kirklees Metropolitan Borough Council (2007) EAT 0009/07. Mba v Merton BC [2013] EWCA Civ 1562, [2013] WLR (D) 474 (CA). Copsey v Devon Clays Ltd [2005] EWCA Civ 932. Wasteney v East London NHS Foundation Trust [2016] UKEAT 0157/15. Chondol v Liverpool City Council [2009] UKEAT 0298/08. Some commentators consider this would be desirable within the United Kingdom ­jurisdictions, see for example Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-­ Discrimination Legislation (Oxford: Hart, 2000) SI No.1660. These regulations put into effect in domestic law the relevant provisions of EC Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. Equality Act 2010, s 4. Equality Act 2010, s 13(1).

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indirect discrimination)30 on the same basis; nor subject them to harassment31 or victimisation.32 With regard to these legal provisions, the most obvious avenue for redress for employees (or workers) who have been penalised for manifesting their religious beliefs is indirect discrimination. Under the doctrine of indirect discrimination, it is unlawful for employers to impose an apparently neutral work rule (‘provision’ or ‘criterion’) or practice which is apparently neutral in its application but in fact puts a group with a protected characteristic to a ‘particular disadvantage’.33 Returning to the example of Eweida, the employer imposed a rule applicable to all customer-facing staff (forbidding the wearing of visible jewellery) which might have been inconvenient for some people with a taste for wearing jewellery but which put employees wearing jewellery with religious significance at a particular disadvantage. However, an employer can provide a justification for its rule or practice if it can demonstrate that it is ‘a proportionate means of achieving a legitimate aim’.34 Again, in Eweida, British Airways were able to satisfy this before the domestic courts on the basis of the desirability of presenting a uniform image to the public (before this was effectively over-ruled by the decision of the ECtHR).35 In practice, however, whatever the merits of pursuing an indirect discrimination claim, it is not unusual for religious claimants to put forward claims in different ways and on the basis of the various available heads of claim,36 including Article 9 of the European Convention on Human Rights which states that: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and ­observance.37 30 31 32 33 34 35 36

37

Equality Act 2010, s 19. Equality Act 2010, s 26. Equality Act 2010, s 27. Equality Act 2010, s. 19(2)(b). Equality Act 2010, s. 19(2)(d). Which essentially held that the domestic courts’ decision was incompatible with Article 9. For example, in Wasteney the judge commented that the Claimant ‘slipped between different ways of putting her claims … and between different potential statutory bases of claim … [arguing that] that once Article 9 is engaged, the obligation on the Court is to find a route for a claim to be pursued in domestic law without being overly technical as to how this is done’ [58] (Eady J). ECHR, art 9(i).

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This right is, however, a qualified one and can be subjected to limitations ‘in the interests of public safety, for the protection of public order, health or ­morals, or for the protection of the rights and freedoms of others.’38 In addition to religious discrimination and Article 9 claims, religious employees may sometimes rely on more general freedom of expression claims.39 There are also enhanced statutory protections specifically for Sikhs who successfully won exemptions from the mandatory requirement on construction sites,40 or when riding motorcycles,41 to wear a hard hat. There are also a small number of statutory provisions which, whilst not exclusively available to religious claimants, are likely to be of particular benefit to them. An example of some longstanding is the right of medical staff under the Abortion Act 1967 not to participate in ‘any treatment authorised [by the legislation]’, to which they have ‘a conscientious objection.’42 This right of conscientious objection was later extended to include embryo research.43 There is another conscience clause specifically applying to doctors who work as ­General Practitioners (GP s) and who object to referring patients for abortion procedures – they need not do so although they are required to refer the patient to another GP who would not have such a conscientious objection.44 Outside of the medical field, there is another example in the form of a statutory exemption for retail and betting workers who were employed before ­specific dates in 1994 (when Sunday trading laws were relaxed)45 and who are not required to work on a Sunday.46

38 39 40 41

42

43 44 45 46

ECHR, art 9(ii). Under Article 10 ECHR (freedom of expression). Employment Rights Act 1996 Part IV. Road Traffic Act 1988 s 16(2). As a result of the decision in Mandla, Sikhs are also able to bring claims under the provisions now found in the Equality Act 2010 for race ­discrimination (as are Jews as a result of the decision in Seide v Gillette Industries Ltd [1980] IRLR 427). Abortion Act 1967, s 4(1). However, the exemption has been narrowly defined in case law as applying to medical treatment only; see R v Salford AHA ex parte Janaway [1988] 3 All ER 1079. It has also been held in Scotland only to apply to direct involvement in abortion procedures (rather than wider patient care); see Doogan & Anor, Re Judicial Review [2020] ScotsCS CSOH_32 (29 February 2012). Human Fertilisation and Embryology Act 1990, s 38. The National Health Service (General Medical Services Contracts) Regulations 2004, s 3(e). Sunday Trading Act 1994. Employment Rights Act 1996 Part IV.

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241

Dress and Personal Grooming

The case of Eweida was cited in the introduction. As well as a representative of religious manifestation claims in general, it is also a strong example of a ­situation of a claimant seeking to assert a right to wear a religious symbol. Alongside religious dress and personal grooming, this forms a particular category of claims (at least for analytical purposes). What differentiates these claims from others is that they involve what might on one level be viewed as a passive form of manifestation in the sense that other actors only experience the manifestation visually.47 Clearly if symbols contained images which shock or offend others, then the analysis is different, but this is likely to be relatively uncommon when connected to religious manifestation.48 This exception aside, for some, particularly reflecting a Western worldview, passive symbols may be considered relatively unimportant and less of a challenge at work than other forms of manifestation.49 However, others are likely to disagree. Psychology suggests that symbols in particular are invested with deep meaning at both an individual and a collective level.50 Under this analysis, some symbols are very powerful and can exert a strong influence over others. This influence can be seen as subversive if it represents, in some way, a challenge to prevailing cultural or religious norms – this is particularly likely if the symbols are considered ‘ostensible’.51 It is clear from the case law that some employees invest symbols with strong meaning. The desire of the claimant in Eweida was to testify to her religious convictions visually by way of the wearing of a Christian cross as an item of jewellery. Others, from different religious traditions, may feel under a religious obligation to do similarly. Sikhs, for example, may adopt the five ‘K’s of the Khalsa, from one of which (uncut hair) arose the tradition of the wearing of a turban.52 Many Muslim women wear the hijab (the Islamic headscarf), 47 48 49 50 51 52

See, for a fuller discussion, Hambler, Religious Expression in the Workplace, 179–200. A rare example being the US case, of Wilson v US West Communications, 58 F.3d 1337 (8th Cir. 1995) in which a Roman Catholic employee objected to being asked to remove a lapel badge showing an aborted foetus. Alison Renteln,. “Visual religious symbols and the law,” American Behavioral Scientist 47, no. 12 (2004): 1573. Carl Jung, Marie-Luise Von Franz, Joseph Henderson, Aniela Jaffé, and Jolande Jacobi, Man and his Symbols (New York: Dell Publishing, 1964). Cecile Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford: Oxford University Press, 2008), 53. William McLeod, “The Turban: Symbol of Sikh Identity,” in Sikh Identity: Continuity and Change, ed. Pashaura Singh and Gerald Barrier (New Delhi: Manohar, 1999).

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­particularly in the company of men, often because of strong religious convictions that they should do so (in response to the Quranic injunction to preserve modesty).53 Some, for the same reason, wear clothing in which their faces are fully covered such as the burqa or niqab. Although the claimant in Eweida was ultimately successful, the ECtHR’s judgment was limited in its application with regard to the wearing of a cross. It was significant that Eweida’s cross was ‘discreet’ for example and the claimant was successful because the employer’s justification (the desire for a uniform image) was so weak.54 In a parallel decision concerning a very similar challenge, in this case to the policy of an NHS trust which forbade the wearing of jewellery (including the cross worn on a chain by a Christian nurse), the ECtHR dismissed the application. It did so on the basis that health and safety was a more weighty justification than public image (and an area in which it would not over-rule national authorities). The problem with this reasoning is that it allows scope for employers to use ‘health and safety’ as a trump card to extinguish other rights, potentially without proper scrutiny. In a recent employment tribunal decision, the potential for discriminatory bans on the wearing of crosses in hospitals without proper justification was recognised when a nurse, banned from wearing what the tribunal called a ‘Cross-Necklace’, won her claim against her employer, Croydon Health Services NHS.55 The tribunal found that other staff were not disciplined for wearing jewellery,56 given the employer’s justification defence that this was a health and safety risk, and indeed other items of clothing and adornment (including religious dress) were permitted which might equally have posed a hazard to health and safety.57 Within England and Wales, there were some early cases where Sikhs unsuccessfully challenged their exclusion from particular roles because of a refusal to shave beards,58 or cut hair.59 This was justified by employers on the basis of the necessity to be clean-shaven and wear short hair for hygiene reasons, although it seems likely that, following advances in hygienic face and hair coverings, such arguments may now be less acceptable to tribunals and courts.

53 54 55 56 57 58 59

Quran 24:31; Surah 24:31. Eweida and Ors v UK, para 94. Onuoha v Croydon Health Services NHS Trust (2022) ET 2300516/2019. Onuoha v Croydon [272]. Onuoha v Croydon [270]. Although this decision is to be welcomed it was made at first instance and is arguably very dependent on its particular facts and cannot be said to ­represent a change in approach by the courts. Panesar v Nestle; Singh v Rowntree. Singh v Lyons Maid Ltd [1975] IRLR 328.

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With regard to the Islamic headscarf, bans have been upheld in parts of Europe due to the potential negative impact on customer preferences,60 or because seeing it worn by a carer might have negative effects on vulnerable patients,61 or because of a possible proselytising effect on children in an educational setting.62 However, there is no evidence that such justifications would carry much weight within England and Wales. An illustrative example in relation to one of these imperatives, is Noah v Desrosiers t/a Wedge.63 In this case, a Muslim hairdresser who wanted to wear a headscarf won her claim for religious discrimination when she was rejected at a job interview on the assumption (which could not be demonstrated with evidence) that customers might not want to come to a hair salon where they could not see their hairdresser’s own hairstyle. The burqa or niqab is another matter. The possibility that a full face veil might interfere with effective working has been acknowledged by tribunals. The key example is Azmi v Kirklees Metropolitan Borough Council,64 where a Muslim teaching assistant working with children for whom English was a second language in a primary school was instructed to take off her niqab. The justification for this stance was the need to see a speaker’s facial and mouth movements for effective language learning. Azmi was unsuccessful in her claims for religious discrimination, the tribunal accepting the respondent’s arguments, which could be evidenced. 4

Working Time

As noted in the introduction, some employees with religious convictions, chiefly from Abrahamic faith traditions, seek to avoid working at specific times or days because of the higher claims of religious obligation. In this section, the major religious claims on employees’ time are briefly identified before the discussion moves to the case law, which in turn offers insights on how clashes between the rival imperatives of employers and employees are dealt with by courts and tribunals.

60 Achbita and Anor v G4S Solutions NV, Case C-157/15, judgment of 14 March 2017. 61 Ebrahimian v France App no 64846/11 (ECtHR 26 November 2015). 62 Dahlab v Switzerland App no 42393/98 (ECtHR, 15 Feb 2001). 63 (2008) ET Case No. 2201867/07. 64 (2007) EAT 0009/07.

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For Jews, there is a rest day known as the Sabbath and to refrain from w ­ orking on that day is required as one of the Ten Commandments.65 It is on the seventh day (when God himself rested after completing his creation work).66 The Sabbath is observed from sunset on Friday evening until nightfall on Saturday.67 Thus Jews, and in particular Orthodox Jews, are unlikely to be prepared to work during the Sabbath. For mainstream Christians, after the death and resurrection of Jesus, ­Sunday, the first day of the week, became a day for communal worship and this practice has continued over two millennia. Some Christians see Sunday as the continuation of the Jewish Sabbath with an absolute interdiction on working; others take the view that it is not directly connected to the Jewish Sabbath and so need not be observed as strictly; rather it is seen as more of an occasion for spiritual refreshment.68 Regardless of which view is taken, Sunday is of course a day for Christians to spend in part attending church services and Christians are likely to be reluctant to work on Sunday and some will refuse absolutely. For Muslims, there is the practice of the daily Salah of saying individual prayers five times daily facing Mecca (although there are variations on this pattern, accepted by some, which require less interference with mainstream working).69 They may therefore desire facilities in the workplace, including ritual washing facilities where practicable, as well as short breaks in order to undertake the Salah. Many Muslims also desire, or feel under an obligation, to meet together in community with others on a Friday lunchtime (between 1 and 2 pm) – for the Jumuʿah congregational prayer.70 Thus, many Muslims are likely to ask for an extended lunchtime break as the Jumuʿah usually takes place in a mosque. At specific times of the year, Muslims are unlikely to wish to work, specifically during the festivals of Eid-ul-Fitr, Eid-ul-Adha and Yawm Al Ashura (the timing of which is governed by the lunar cycle). Muslims are also required to undertake the Hajj, a pilgrimage to Mecca, at least once in a lifetime. It is

65 66 67 68 69 70

Exodus 20 v 7–10; Deuteronomy 5 v 11–14. Genesis 2 v 3. Yosef Green, “When Does the Day Begin?” Jewish Bible Quarterly 36, no. 2 (2008): 81. See for example, James Boice, Foundations of the Christian Faith (Downers Grove IL: ­InterVarsity Press, 1986), 234. Muslim Council of Britain, Muslims in the Workplace: A Good Practice Guide for Employers and Employees (MCB/DTI, 2005), 14. There is a mandate for this – Quran 62 v 9: ‘… when the Salat is announced on Friday, you shall hasten to the commemoration of God and drop all business.’

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estimated that this takes between two and three weeks to achieve,71 and some Muslims may seek extended leave as a one-off request to accomplish it.72 There have been some significant claims brought by employees who wished to establish a right under Article 9 to avoid work when it conflicted with religious obligations, initially before the ECtHR73 and also, in Copsey v Devon Clays,74 before the Court of Appeal. In these cases, the courts followed the ­pre-Eweida approach of declaring that Article 9 rights were not exercisable in the workplace on the basis that the employee is able to resign in order to secure these rights. Following the extension of discrimination law to cover religion and belief in 2003, early tribunal claims recognised the potential for discrimination, in particular indirect discrimination, if religious employees were forced to work at times conflicting with religious obligation. In Williams-Drabble v Pathway Care Solutions Ltd and anor,75 for example, a Christian shift worker, who had been originally employed on the basis that she would not be required to work on Sundays, was required to do so some months after starting work and resigned as a result. Her claim for indirect discrimination was successful as the employer could not demonstrate that the changes to the shift pattern represented ‘a proportionate means of achieving a legitimate aim’ (the employer’s justification defence in such claims).76 In a parallel case, Edge v Visual Security Services L­ imited,77 this time involving a Christian security guard, originally hired on the basis that he would not work on Sundays but later dismissed after refusing to do so, the tribunal reached the same conclusion. There were other positive outcomes for religious claimants, including one dismissed for extending his leave to undertake the Hajj78 and another who was refused permission without sufficient justification to undertake Salah prayer.79 However, tribunals clearly focused on the extent to which an employer could justify requirements for working in circumstances where there is a clash with

71 72

Muslim Council of Britain, Muslims in the Workplace, 17. For a fuller discussion of these issues, see Hambler, Religious Expression in the Workplace, 132–146. 73 Ahmad v UK (1982) 4 EHRR 126; Stedman v UK (1997) 23 EHRR CD; Konttinen v Finland Appl No. 24949/94 (3 December 1996). 74 [2005] EWCA Civ 932. 75 (2005) ET Case No. 2601718/04. 76 Equality Act 2010, s 19(2)(d). 77 (2006) ET Case No. 1301365/06. 78 Khan v G and J Spencer Group plc t/a NIC Hygiene Ltd (2005) ET Case No. 1803250/04. 79 Abdulle v River Island Clothing Company (2011) ET Case No. 2346023/2010.

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religious obligations. Thus, in Cherfi v G4S Security Service Ltd,80 a security guard denied time to attend the Jumuʿah was unsuccessful in demonstrating that he had suffered indirect discrimination given the impracticality of temporarily replacing him and his refusal to accept an accommodation which would have reduced his overall working hours. Similarly in Patrick v IH Sterile Services Ltd,81 a lab technician who was also a Jehovah’s Witness was unsuccessful in his discrimination claim when required to work on a Sunday following an initial agreement that this would not be required. In a marked departure from the decisions at the same level in Williams-Drabble and Edge, the tribunal ruled that the employer met the justification test because the requirement to work on Sunday had been ‘shared out equally’ across the available staff.82 It was in the case of Mba v Merton BC,83 which progressed to the Court of Appeal that a fairly clear, if rather unsatisfactory, precedent was set with regard to this type of manifestation. In brief, Ms Mba was a care worker in a children’s home. At first, her employer accommodated her desire to avoid Sunday working which Mba assumed to be a contractual agreement. After two years, the employer attempted to roster her to work Sundays. Mba refused and, after receiving a final written warning, she resigned and lodged a claim for religious discrimination. This was rejected by the employment tribunal. It also rather controversially suggested that ‘the belief that Sunday should be a day of rest was not a core component of the Christian religion’, a statement the EAT later regarded as inelegant whilst downplaying its significance.84 The EAT rejected the appeal, ruling that accommodating Mba was disruptive for the children in and costly for the employer (who relied on agency staff to plug any gaps in the schedule). The Court of Appeal affirmed what it called ‘Sabbatarianism’ as a bona fide manifestation of religion. However, it refused to overturn the earlier judgment, finding that Ms Mba had not established that she had a contractual exemption from Sunday working and that a need had been established for Mba to work on Sundays for the organisation to work effectively.85 The problem with this decision is that accommodating Mba was clearly highly practicable; it had been done for two years. It would seem therefore that, despite this evidence, the courts in Mba were prepared to accept that the

80 (2011) UKEAT/0379/10. 81 (2011) ET Case No. 3300983/2011. 82 Patrick v IH Sterile Services Ltd [33]. 83 [2013] EWCA Civ 1562, [2013] WLR (D) 474 (CA). 84 Mba v Merton BC (2012) UKEAT/0332/12 [41]. 85 Mba v Merton BC (CA) [24].

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burden of relatively modest costs and equally modest inconvenience are sufficient to provide an acceptable justification defence. There is something of a postscript to this section. Since the Mba precedent was set, there has been a significant development in the form of the extension of a statutory right, which was originally provided for parents of young ­children (or older disabled children)86 and later expanded to be inclusive of people with wider caring responsibilities.87 This is the right for an employee, with at least 26 weeks’ service, to make a formal request to his employer to vary his overall contractual hours of work, pattern of working time, or place of work. This right was extended to all employees in 2014.88 What this ‘right to request flexible working’ does, for the purposes of the discussion in this chapter, is to create a formal mechanism for religious employees to request permanent changes to their contractual hours to exclude working at times where there is a clash with their religious obligations. Whereas employers have a number of available justifications for turning down such requests,89 they are obliged ‘to deal with the application in a reasonable manner’.90 It may be that in practice the employer’s burden to justify refusing such requests is greater than the rather minimal analogous burden expected of the employer (to successfully defend an indirect discrimination claim) in Mba, particularly if the employer has routinely accepted similar requests from other employees, albeit for different reasons. 5

Conscientious Objection

It was noted earlier that the law offers accommodation for specific and ­limited types of conscientious objection, largely in the field of medical ethics. It should be noted however, that conscientious objections may also arise in other areas of work. A fairly straightforward example of this might be an objection by some Muslim supermarket check-out staff to handling alcohol. It is also possible to envisage circumstances where employees with religious convictions might object to undertaking certain tasks which they find ethically questionable. However, conscience claims which have perhaps had the highest profile have been in the area of conscientious objection by public servants in areas 86 87 88 89 90

Employment Rights Act 1996, as amended by the Employment Act 2002. Work and Families Act 2014 s 131. Children and Families Act 2014. Employment Rights Act 1996, s 80G (1)(b). Employment Rights Act 1996, s 80G (1)(a).

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where religious convictions lead to opposition to the perceived endorsement of particular sexual relationships or lifestyles, most notably same-sex relationships. An early example of this under the Religion and Belief Regulations, was the case of McClintock v Department for Constitutional Affairs,91 in which a Christian magistrate had objected to sitting in cases where he might be called on to place a child for adoption with a same-sex couple. He argued this initially on the basis of a conflict between this obligation and his legal duty to act in the best interests of children.92 McClintock’s request was refused and he subsequently resigned from the family bench and brought a claim for religious discrimination. The claim was unsuccessful, substantively because of the perceived reach of his judicial oath to administer the law impartially and ‘without fear or favour’. However, his claim was also considered to be outside of the application of the Religion and Belief Regulations, because his initial stated objection had not been on the grounds of religion but rather his interpretation of the best needs of children. More recently, in Page v Lord Chancellor & Anor,93 a Christian magistrate, opposed to placing children for adoption with same-sex couples, was similarly unsuccessful in challenging his removal from the Bench. The Court of Appeal concluded that as ‘he declared publicly that in dealing with cases involving adoption by same-sex couples he would proceed not on the basis of the law or the evidence but on the basis of his own preconceived beliefs’, then his removal was lawful.94 Perhaps the most significant conscience claim involving a public officeholder (and which progressed to the ECtHR) is that of Ladele v Islington BC.95 Ladele was a Christian who worked as a Registrar of Births, Deaths and ­Marriages in the London Borough of Islington. Following the passage of the Civil Partnerships Act 2005, which instituted same-sex civil unions, Ladele was formally designated a civil partnerships registrar against her wishes (this designation was at the discretion of the local authority) and she formally objected. For a time, Islington BC turned a blind eye as she swapped shifts with colleagues to avoid civil partnerships work, but, following complaints by some staff, she was required to undertake civil partnerships work. During the course 91 [2007] UKEAT 0223/07/3110, [2008] IRLR 29 [62]. 92 McClintock v Department for Constitutional Affairs [9]. 93 [2021] EWCA Civ 254 (CA). 94 [83] (Underhill LJ). The Claimant was also unsuccessful in his claim against an NHS Trust which has dismissed him an a non-executive director after he had participated in a radio phone-in about his stance; in this case the dismissal was because of the public expression of his views rather than a conscientious objection; see Page v NHS Trust Development Authority [2021] EWCA Civ 255 (CA). 95 [2009] EWCA Civ. 1357 (CA), [2010] IRLR 211.

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of a protracted dispute, and under threat of dismissal, she lodged a claim for direct discrimination, indirect discrimination and harassment on the grounds of religion and belief. Her claim was successful at first instance, but this was overturned on appeal, the EAT opining that Islington BC had the right to ‘require all registrars to perform the full range of services’ and that ‘the claimant could not pick and choose what duties she would perform depending on whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on the grounds of sexual orientation.’96 An appeal to the Court of Appeal was unsuccessful, the Court rather controversially (and without any apparent expertise in the matter) opining that Ladele’s objection ‘was based on her view of marriage, which was not a core part of her religion’.97 Ladele lodged an application under Article 9 before the ECtHR, which was conjoined to three other applications.98 Her application was rejected on the basis that deciding how to balance what was framed as competing rights under the Convention was within the scope of the margin of appreciation of the national authorities.99 6

Religious Speech

‘Religious speech’ is the term adopted in this chapter to refer to overt, verbalised forms of religious manifestation.100 This is potentially inclusive of quite a range of practices, such as the following (non-exhaustive): i. attempts to persuade others to convert to a particular religion (often known as ‘proselytism’); ii. the invocation of a divine blessing; iii. an offer to pray for others; 96 97 98 99

Islington BC v Ladele [2008] UKEAT 0453/08, [2009] ICR 387 [111] (Elias LJ). Ladele v Islington BC (CA)[52] (Neuberger LJ). Eweida v United Kingdom. A similar conscience application (also conjoined to Eweida) brought by a Christian sexual relationships counsellor, who objected to offering this type of counselling to same-sex couples, was also unsuccessful for the same reason. What distinguished this claim from Ladele was that the Applicant had applied for the role (and knew or ought to have known that some aspects if it might cause a conflict for him). The domestic claim reached the Court of Appeal as McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 872 . 100 It is therefore used in a much narrower way than in the USA where the term tends to be inclusive of a wider range of manifestations.

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iv. v.

the use of religious terminology in everyday discourse; and attempts to persuade others to adopt different lifestyle choices (perhaps to avoid ‘sin’). Religious employees who adopt this form of manifestation may be motivated by a desire to share with co-workers and others what the claimant in Mbuyi v Newpark Childcare (Shepherd’s Bush) Ltd described as her ‘gift’.101 Alternatively (or furthermore) they may feel under a religious obligation to do so and to ignore this would risk displeasing God.102 Religious speech may arise reactively (in response to others); or proactively (where the religious employee is the initiator); it may arise within the workplace or outside of it; or somewhere in-between.103 Proselytism has been recognised as a manifestation of religion by both the European Court of Human Rights (ECtHR)104 and the Court of Justice of the European Union (CJEU).105 As well as enabling the religious individual to exercise his religious rights, it has been noted that proselytism is an important facilitator of the right of others to change religion. The ECtHR has identified examples of ‘improper proselytism’, for example where financial inducements are offered to potential proselytes,106 or where there is a misuse of positions of seniority in specific environments.107 Improper proselytism would not be regarded as a legitimate manifestation of religion. Courts have not historically offered the same status to religious speech which may be offensive to others – this has tended to be regarded as ‘religiously motivated’ rather than a protected manifestation.108 The employment claim in Wasteney v East London NHS Foundation Trust109 represents the former group of cases. This case involved allegations 101 (2015) ET Case number 3300656/2014 [56]; [77]. 102 Kimball Gilmer and Jeffrey Anderson, “Zero Tolerance for God: Religious Expression in the Workplace after Ellerth and Faragher” Howard LJ 42, no. 2 (1999): 327, 344. 103 See discussion in Virginia Mantouvalou, “Human Rights and Unfair Dismissal: Private Acts in Public Spaces” Modern Law Review 71, no. 6 (2008): 912. 104 Kokkinakis v Greece (1993) 17 EHRR 397. 105 Proceedings brought by Tietosuojavaltuutettu, Case C-25/17, Opinion of AG Mengozzi (1 February 2018); Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite, Case C-56/17, Opinion of AG Mengozzi (25 July 2018). 106 Kokkinakis v Greece. 107 Larissis and Ors v Greece (1999) 27 EHRR 329. 108 For example, R (Ngole) v University of Sheffield [2019] EWCA Civ 1127. It should be noted however that there may be situations where there is ‘a sufficiently close and direct nexus between the act [of provocative religious speech] and the underlying belief’ for this to be considered a manifestation. 109 [2015] ET 3200658/2014.

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of ­proselytism by a supervisor towards a more junior staff member. A claim of religious discrimination (direct, indirect and harassment) and breach of Article 9 ECHR was brought by a senior Occupational Therapist and Christian, Victoria Wasteney, who had been given a final written warning following a protracted disciplinary investigation, for the ‘bullying and harassment’ of a junior colleague, a young Muslim woman and newly-qualified Occupational Therapist. The alleged bullying and harassment arose from a series of incidents in which Ms Wasteney invited her junior colleague to Church services; gave her literature (including a book about Muslim conversion to Christianity); and prayed with her, which included (on one occasion) the laying on of hands.110 Her eventual final disciplinary warning was influenced (significantly) by the fact that the issue was not ‘just a one off incident’ and the disciplinary panel was ‘particularly worried about the laying on of hands’.111 The panel also suggested that Ms Wasteney’s seniority, and her inability to respect ‘personal boundaries’ was a relevant factor.112 Although the tribunal did note (significantly) that: ‘… there were some mixed messages in the texts [sent from the Muslim junior colleague] in that they suggest in parts that [she] welcomed discussion of religion’,113 nevertheless it rejected the allegation of direct discrimination, concluding that her conduct had ‘blurred professional boundaries and placed improper pressure on a junior employee.’114 On appeal, the tribunal judgment and its ratio were upheld.115 Chondol v Liverpool City Council116 is a case involving the alleged proselytism of clients or customers. In brief, this case concerned a social worker who was dismissed for promoting his religious views to ‘service users’ by giving a Bible to a service user and by talking to another about Christianity. His subsequent proceedings before an employment tribunal for unfair dismissal and religious discrimination were unsuccessful and the Employment Appeals Tribunal upheld that finding. Chondol appeared to be aware that promoting his religious beliefs was not permitted by the Council. However, Chondol argued in mitigation that in respect of the first incident, he was merely reacting to a request; and in respect of the second, he had simply asked whether or not the service user 110 Wasteney (ET) [60, 77]. 111 Wasteney (ET) [85]. 112 Wasteney (ET) 113 Wasteney (ET) [64]. 114 Wasteney (ET) [108]. 115 Wasteney v East London NHS Foundation Trust (EAT). 116 (2009) EAT/0298/08.

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believed in God or attended church.117 The employment tribunal (followed by the EAT) was unpersuaded and determined that Chondol had been dismissed for ‘improperly foisting [his beliefs] on service users’118 especially those in ‘a fragile mental state’,119 rather than for holding those beliefs himself and that this dismissal was fair. A case involving potentially offensive religious speech is Haye v Lewisham BC.120 In this case, a local authority worker, Denise Haye, unsuccessfully claimed religious discrimination and unfair dismissal, following her dismissal after sending a work email to the Chief Executive of the Lesbian and Gay Christian movement accusing her of being possessed by an evil sexual spirit and urging her ‘to repent and turn from [her] sinful ways before it is too late’.121 7 Conclusion The discussion in this chapter has been occupied with issues of different forms of manifestation of religion in the face of potential hostility from employers and how courts and tribunals have responded to such manifestation. It may be suggested that courts have moved positively, if sometimes reluctantly, in the direction of certain forms of manifestation. In the area of prohibitions on religious dress and grooming, for example, it seems that courts are increasingly unpersuaded by the justifications offered by employers, particularly where these are bound up with corporate image in customer-facing roles (thanks in large part to the decision in Eweida) but also, perhaps, with regard to some health and safety arguments, where these are seen as lacking merit. This is ­perhaps because religious dress can be accommodated quite effectively into uniforms or dress codes, requiring only small adaptations or exceptions, as long as the religious dress is discreet. Ostensible or unusual religious dress, such as the burqa, may be more problematic, albeit as much for potential interference with operations than with its potential to be off-putting to customers. With regard to time off for religious obligations, courts seem to attach less weight to religious obligation than employer inconvenience and appear prepared to support justification arguments where even de-minimis cost is involved at the expense of the employer. Conscientious objection to work-related tasks has 117 Chondol [10]. 118 Chondol [23]. 119 Chondol [16]. 120 (2010) UKET 2301852/09. 121 Haye v Lewisham BC [6].

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not been strongly supported, some courts taking the view that conscience is less central to religious practice ‘than, say,’ worshiping with others. They have shown a marked reluctance to support claimants who might have a conscientious objection which in some way invokes other rights connected with individual identity, in particular sexual orientation. In the Ladele case, even though accommodating a religious based objection was highly practicable, the domestic courts were prepared to accept a justification for not so doing based on what were effectively abstract rights connected with the principles of inclusivity.122 Employer restrictions on proselytism, and religious speech generally, have been largely supported by courts and tribunals, particularly if clients, or more junior staff, are the ‘targets’. It is strongly arguable that, despite positive movement in some areas, the current approach by courts and tribunals tilts too far towards acceptance of employer restrictions. This could be because courts tend to continue to see religious practices as involving an element of ‘choice’ – and where choice is in play then, logic would suggest, employees can relatively easily exercise self-­ restraint. There is likely to be some truth in this – some religious practices may involve choice. However, for some individuals there is simply no choice – for them the manifestation of religion is a matter of obligation and as such is not easily negotiable. If courts showed a more sympathetic understanding of that position, then competing rights might be assessed more carefully and, it may be argued, fairer outcomes would be more likely to result for employees who manifest their religion in the workplace. Bibliography Books

Ahdar, Rex, and Ian Leigh. Religious Freedom in the Liberal State. 2nd edn. Oxford: Oxford University Press, 2013. Boice, James. Foundations of the Christian Faith. Downers Grove IL: InterVarsity Press, 1986. Hambler, Andrew. Religious Expression in the Workplace and the Contested Role of Law. Abdingdon: Routledge, 2015. Hepple, Bob, Mary Coussey and Tufyal Choudhury. Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation. Oxford: Hart, 2000. 122 See discussion in Ian Leigh and Andrew Hambler, “Religious Symbols, Conscience and the Rights of Others” Oxford Journal of Law and Religion 3, no. 1 (2014): 2.

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Howard, Erica. Law and the Wearing of Religious Symbols. Abingdon: Routledge, 2012. Jung, Carl Marie-Luise Von Franz, Joseph Henderson, Aniela Jaffé, and Jolande Jacobi. Man and his Symbols. Vol. 5183. Dell, 1964. Laborde, Cecile. Critical Republicanism: The Hijab Controversy and Political Philosophy. Oxford: Oxford University Press, 2008. Muslim Council of Britain. Muslims in the Workplace: A Good Practice Guide for Employers and Employees. MCB/DTI, 2005.



Book Chapters

Gavison, Ruth and Nahshon Perez. “Days of rest in multicultural societies: private, public separate.” In Law and Religion in Theoretical and Historical Context, edited by Peter Cane, Caroline Evans and Zoe Robinson, 186–213. Cambridge: Cambridge University Press, 2008. McLeod, William. “The Turban: Symbol of Sikh Identity.” In Sikh Identity: Continuity and Change, edited by Pashaura Singh and Gerald Barrier. New Delhi: Manohar, 1999.

Articles

Gilmer, Kimball and Jeffrey Anderson. “Zero Tolerance for God: Religious Expression in the Workplace after Ellerth and Faragher.” Howard Law Journal 42, no. 2 (1999): 327–345. Green, Yosef. “When Does the Day Begin?” Jewish Bible Quarterly 36, no. 2 (2008): 81–87. Hambler, Andrew. “Managing workplace religious expression within the legal constraints.” Employee Relations 38, no. 2 (2016): 406–419. Leigh, Ian and Andrew Hambler. “Religious Symbols, Conscience and the Rights of Others.” Oxford Journal of Law and Religion 3, no. 1 (2014): 2–24. Litwak, Erik. “Conscientious Objection in Public Service Ethics: A Proposed Procedure for Europe.” European Journal of Law Reform 7, no. 1/2 (2005): 79–87. Mantouvalou, Virginia. “Human Rights and Unfair Dismissal: Private Acts in Public Spaces.” Modern Law Review 71, no. 6 (2008): 912–939. McColgan, Aileen. “Class Wars? Religion and (In)equality in the Workplace.” Industrial Law Journal 38, no. 1 (2009): 1–29. Renteln, Alison. “Visual religious symbols and the law.” American Behavioral Scientist 47, no. 12 (2004): 1573–1596.



National Cases

Abdulle v River Island Clothing Company (2011) ET Case No. 2346023/2010. Azmi v Kirklees Metropolitan Borough Council (2007) EAT 0009/07. Chaplin v Royal Devon and Exeter NHS Foundation Trust (2010) ET Case No. 1702886/09. Copsey v Devon Clays Ltd [2005] EWCA Civ 932.

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Cherfi v G4S Security Service Ltd (2011) UKEAT/0379/10. Chondol v Liverpool City Council [2009] UKEAT 0298/08. Doogan & Anor, Re Judicial Review [2020] ScotsCS CSOH_32 (29 February 2012). Edge v Visual Security Services Limited (2006) ET Case No. 1301365/06. Eweida v British Airways [2008] UKEAT 0123/082011. Grace v Places for Children [2013] UKEAT 0217/13. Haye v Lewisham BC (2010) UKET 2301852/09. Islington BC v Ladele [2008] UKEAT 0453/08, [2009] ICR 387. R v Salford AHA ex parte Janaway [1988] 3 All ER 1079. Khan v G and J Spencer Group plc t/a NIC Hygiene Ltd (2005) ET Case No. 1803250/04. Ladele v Islington BC [2009] EWCA Civ. 1357 (CA), [2010] IRLR 211. Mandla v Dowell Lee [1983] 2AC 548 (HL). Mba v Merton BC (2012) UKEAT/0332/12. Mba v Merton BC [2013] EWCA Civ 1562, [2013] WLR (D) 474 (CA). Mbuyi v Newpark Childcare (Shepherd’s Bush) Ltd (2015) ET Case number 3300656/2014. McClintock v Department for Constitutional Affairs [2007] UKEAT 0223/07/3110, [2008] IRLR 29. McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 872. Noah v Desrosiers t/a Wedge (2008) ET Case No. 2201867/07. R (Ngole) v University of Sheffield [2019] EWCA Civ 1127. Onuoha v Croydon Health Services NHS Trust (2022) ET 2300516/2019. Page v Lord Chancellor & Anor [2021] EWCA Civ 254 (CA). Page v NHS Trust Development Authority [2021] EWCA Civ 255 (CA). Panesar v Nestlé [1980] ICR 60 (EAT), 64 (CA). Patrick v IH Sterile Services Ltd (2011) ET Case No. 3300983/2011. Seide v Gillette Industries Ltd [1980] IRLR 427. Singh v Lyons Maid Ltd [1975] IRLR 328. Singh v Rowntree Mackintosh [1979] IRLR 199 (EAT Sc). Wasteney v East London NHS Foundation Trust [2016] UKEAT 0157/15. Wasteney v East London NHS Foundation Trust [2015] ET 3200658/2014. Williams-Drabble v Pathway Care Solutions Ltd and anor (2005) ET Case No. 2601718/04. Wilson v US West Communications, 58 F.3d 1337 (8th Cir. 1995).



European Cases

Achbita and Anor v G4S Solutions NV, Case C-157/15, judgment of 14 March 2017. Ahmad v UK (1982) 4 EHRR 126. Arrowsmith v United Kingdom (1978) 3 EHRR 218 (Commission Decision). Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite, Case C-56/17, ­Opinion of AG Mengozzi (25 July 2018). Dahlab v Switzerland App no 42393/98 (ECtHR, 15 Feb 2001).

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Ebrahimian v France App no 64846/11 (ECtHR 26 November 2015). Eweida and Ors v United Kingdom (2013) 57 EHRR 8. Kokkinakis v Greece (1993) 17 EHRR 397. Konttinen v Finland Appl No. 24949/94 (3 December 1996). Larissis and Ors v Greece (1999) 27 EHRR 329. Leyla Sahin v Turkey (2005) 41 EHRR 8. Stedman v UK (1997) 23 EHRR CD. Proceedings brought by Tietosuojavaltuutettu, Case C-25/17, Opinion of AG Mengozzi (1 February 2018).



National Instruments



European Instruments

Abortion Act 1967. s 4(1). Children and Families Act 2014. Civil Partnerships Act 2005. Employment Equality (Religion and Belief) Regulations 2003 (SI No.1660). Employment Act 2002. Employment Rights Act 1996. s 80G (1)(a). s 80G (1)(b). Part IV. Equality Act 2010. s 4. s. 19(2)(b). s. 19(2)(d). Human Fertilisation and Embryology Act 1990. s 38. The National Health Service (General Medical Services Contracts) Regulations 2004. s 3(e). Road Traffic Act 1988. s 16(2). Sunday Trading Act 1994. Work and Families Act 2014. s 131.

Article 9 ECHR (freedom of religion). Article 10 ECHR (freedom of expression). EC Directive 2000/78/EC (equal treatment framework directive).

Chapter 13

Walking on a High Wire

The European Court of Human Rights and the Challenge of Balancing the Rights to Freedom of Expression and the Protection of Religion/ Belief under the ECHR Peter Cumper and Tom Lewis 1 Introduction The English actor and comedian Stephen Fry, whilst on Irish television in 2015, asked why he should “respect a capricious, mean-minded, stupid God” who is “utterly evil, capricious and monstrous”.1 His comments provoked widely contrasting responses. These ranged from an Irish police investigation into his alleged blasphemy,2 to the shortlisting of the programme for a broadcasting award.3 Fry’s case neatly illustrates the very different reactions that such cases typically evoke, and demonstrates how broadcasters, as well as law and policy makers more generally, must effectively walk a ‘high wire’ in balancing the free expression rights of those who wish to attack religion/belief, and the rights of those who object to their religion/beliefs being so condemned. This ‘high wire’ challenge is the subject matter of our chapter. In it we focus on the European Convention on Human Rights (ECHR/Convention)

1 Henry McDonald, “Stephen Fry calls God an ‘evil, capricious, monstrous maniac,’” The Guardian, February 1, 2015, https://www.theguardian.com/culture/2015/feb/01/stephen-fry-god-evil -maniac-irish-tv. 2 Pádraig Collins, “Stephen Fry investigated by Irish police for alleged blasphemy,” The G ­ uardian, May 7, 2017. https://www.theguardian.com/culture/2017/may/07/stephen-fry-investigated-by-irish-pol ice-for-alleged-blasphemy Proceedings were never brought against Fry under Ireland’s (now repealed) Defamation Act 2009. 3 Kevin Rawlinson, “Stephen Fry ‘God is evil’ interview up for religious broadcasting award,” The Guardian, March 21, 2016. https://www.theguardian.com/media/2016/mar/21/stephen-fry-god-evil-interview-reli gious-broadcasting-award.

© Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_014

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and examine how the European Court of Human Rights (ECtHR/Court) has protected ‘beliefs’ (rather than believers per se) from ridicule, vilification and attack.4 The structure of this chapter is as follows. We start by examining, briefly, some possible reasons for the recent increase in ‘freedom of expression/­ religious sensibilities’ disputes. Next, we turn to the case-law of the ECtHR, focusing on the main cases that have come to the attention of Europe’s p ­ rimary human rights court in this area. Finally, this chapter ends with our conclusion, in which we critique the metaphorical ‘high wire’ walking strategy of the ECtHR. 2 Freedom of Expression and the Protection of Religion/Belief – The Current Context Today, barely a month seems to pass in Europe without complaints in the press that the religious feelings of some have been offended by the words or conduct of others. Such disputes typically generate more heat-than-light. They arouse strong passions in those who claim that appropriate respect has not been afforded to the sanctity of their beliefs. Half a century ago, few sociologists would have anticipated this state of affairs. Back then many subscribed to the ‘secularisation’ theory, whereby it was assumed that, with modernity, ‘religious institutions, actions and consciousness [would] lose their social ­significance’,5 and that ‘religion was doomed to fade away’.6 As recent history demonstrates, such assumptions were mistaken, and the secularisation thesis has now been consigned ‘to the graveyard of failed theories’.7 Indeed, rather than secularisation leading to the demise of religion, scholars such as Olivier Roy point to its contribution in the revitalisation and transformation of religion, with the emergence of ‘new forms of religious visibility’ being evident in public, and the refusal of some religious groups to

4 This distinction between attacks of ‘beliefs’ and ‘believers’, which admittedly is often less than clear, means that we exclude from this chapter the issue of hate speech and other forms of incitement to hatred against people on the grounds of religion/belief, race, ethnicity or nationality. 5 Bryan Wilson, Religion in Secular Society (London: Penguin, 1966), 14. 6 Michael Cook, Ancient Religions, Modern Politics: The Islamic Case in Comparative Perspective (Princeton: Princeton University Press, 2014), 443. 7 Rodney Stark and Roger Finke, Acts of Faith: Explaining the Human Side of Religion (Berkeley: University of California Press, 2000), 79.

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confine their faith to the private sphere.8 This increasing visibility of faith in the public arena perhaps helps explain why battles between those who wish to attack certain religious beliefs, and those who so object, have attained much greater public prominence in recent decades. There are, of course, a multitude of other possible explanations for the increase in the number of disputes involving the right to freedom of expression and the protection of religious sensibilities. These include: the transformation of Europe into a multi-faith continent, with the adherents of minority religions (for whom faith may be linked to notions of individual and collective identity) often keen to use the law to resist attacks on their religious traditions; the tendency of some xenophobic groups to disguise their true racist motives, by couching their vilification of minority traditions in religious (rather than racial) terms; the influence of militant atheist scholars, who attack religious beliefs, using pejorative language to suggest that, for example, ‘religion poisons everything’;9 the willingness of some violent groups to use the satirising of their beliefs as a pretext for acts of terrorism;10 and finally, in relation to some Eastern European nations and Russia in particular, the close links between important state and religious institutions, so that vilification of such institutions is criminalised on the ground that it constitutes ‘blasphemy’.11 Various other possible explanations could be adduced, but one thing seems clear – there has been a significant increase in the number of cases pitting those invoking the right to freedom of expression against others arguing from the perspective of a right to protect the feelings of religious believers. In recent decades many of these have made their way to the ECtHR. As a result, the ECtHR plays an important role in the setting of standards for the continent in this area, and it is therefore to Article 10 of the Convention, and the relevant jurisprudence of the Court, that we now turn.

8 9 10

11

Olivier Roy, Holy Ignorance: When Religion and Culture Part Ways (New York: Columbia University Press, 2010), 3. Christopher Hitchens, God is Not Great: How Religion Poisons Everything (Toronto: ­McClelland & Stewart, 2008). An obvious example is the terrorist attack on the offices of Charlie Hebdo in 2015. See, e.g., Jeroen Temperman and András Koltay, eds. Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge: Cambridge University Press, 2017). See, Jeroen Temperman, “‘Mother of God, Drive Putin Away’: On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights,” in Temperman and Koltay, ibid, 294.

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Article 10 and the Influence of Otto-Preminger-Institut v. Austria

3.1 Article 10 and the Right to Freedom of Expression The starting point for any discussion of the right to freedom of expression is Article 10 of the ECHR. It provides that: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Freedom of expression is thus a ‘qualified right’, in that it is afforded protection under Paragraph 1 of Article 10 but may be limited under Paragraph 2. However any such restriction, for it not to constitute a violation of the Article, must be in pursuit of one of the legitimate aims listed, so it must be ‘prescribed by law’12 and ‘necessary in a democratic society’. This final requirement has been held by the Court to mean that any restriction must ‘correspond to a pressing social need’, must be proportionate to whichever legitimate aim is being pursued, and the reasons given for the interference must be ‘relevant and sufficient’.13 As a consequence of Article 10’s structure the ECtHR is required, one way or another, to perform a balancing exercise in which the right is weighed against the reasons for restriction. Indeed, the Court has said that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights’.14 It is this search for a fair balance between competing values – this striving for a safe traverse of the high wire – that lies 12

This means that any restriction must be both accessible, and sufficiently precise to enable the individual “to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”. See Sunday Times v. UK, Application no. 6538/74, judgment of 26 April 1979, at para. 49. 13 Ibid. 14 See, e.g., Soering v. UK, Application no. 14038/88, judgment of 7 July 1989, at para. 89.

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at the heart of the most influential case in this area – Otto-Preminger-Institut v. Austria. 3.2 Otto-Preminger-Institut v. Austria15 This case concerned the banning of Werner Schroeter’s 1981 film Das Leibeskonzil (‘Council in Heaven’). Based on an 1894 play by Oskar Pannizar, the film tells the story of God, Jesus and Mary conspiring to punish humankind for its immorality. Together, with the support of the Devil, they come up with the idea of a sexually transmitted disease (syphilis) and the Devil then sends his daughter, Salome, to spread the infection by sexual contact, primarily with Church leaders.16 The Otto-Preminger-Institut (OPI), a non-profit-making organisation promoting creativity, scheduled six showings of the film at an art-house cinema in Innsbruck, with entrance limited to those who were over the age of seventeen. However, plans to show the film generated controversy and, at the request of the Innsbruck Diocese of the Roman Catholic Church, statutory charges for ‘disparaging religious doctrines’ were brought. The Austrian authorities seized the film which, after judicial proceedings, was subject to forfeiture. The OPI, having exhausted domestic remedies without success, then applied to the ECtHR claiming a breach of Article 10 of the ECHR. Given that Austria’s seizure and forfeiture of the film clearly interfered with the OPI’s right to freedom of expression, the issue facing the Court was whether this interference could be justified under Article 10(2). In other words, for the state’s actions to be lawful, the Court had to determine whether they satisfied the three Article 10(2) criteria of being prescribed by law, in pursuance of a legitimate aim, and necessary in a democratic society. Whereas the first criterion was uncontroversial (i.e., the film had clearly been banned under domestic law), the other two were less so. Thus, the ECtHR was tasked with first determining whether the state’s measures had pursued a legitimate aim and, second, whether these measures were necessary in a democratic society. On the first question, the Court held that Austria’s actions pursued the legitimate aim of protecting the rights of others, in relation to respect for their religious feelings. In so doing it affirmed that whilst the right to freedom of 15 16

Otto-Preminger-Institut v. Austria, Application no. 13470/87, ECtHR judgment of 20 ­September 1994. On the play and attempts to ban it see Peter D.G. Brown, “The Continuing Trials of Oskar Panizza: A Century of Artistic Censorship in Germany, Austria, and Beyond,” German Studies Review 24 (2001): 533.

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religion/belief, guaranteed under Article 9 of the ECHR, does not protect religious believers from all criticism, nonetheless: the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, ­notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.17 The ECtHR stated that the opposition to, or denial of, another person’s beliefs might, in extreme cases, inhibit their freedom to hold such beliefs, and it added that the ‘respect for the religious feelings of believers’ as guaranteed by Article 9 of the ECHR,18 could ‘legitimately be thought to have been violated by provocative portrayals of religious veneration’.19 Thus, Article 10(2) was held to provide a right not to be insulted in one’s religious sensibilities that were part and parcel of the Article 9 right to freedom of religion or belief. In relation to the second question of whether the measures taken by Austria had been necessary in a democratic society, the majority of the ECtHR held that there had been a ‘pressing social need for the preservation of religious peace’ given that the film attacked Catholicism in a region (the Tyrol) where the ‘overwhelming majority’ of people were Roman Catholics. In this regard the Court stated that Article 10 includes an important obligation: to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering ­progress in human affairs.20 The ECtHR asserted that a ‘certain margin of appreciation’ had to be left to the national authorities since it was ‘not possible to arrive at a comprehensive 17 18



19 20

Otto-Preminger (n 15), para. 47. ‘Everyone has the right to freedom of thought, conscience and religion; the right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public and private, to manifest his religion or belief, in worship, teaching, practice and observance.’ ECHR, Article 9(1). ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ ECHR, Article 9(2). Otto-Preminger (n 15), para. 47. Ibid., para. 49.

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definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others’.21 Putting it another way, the Court held that the authorities, knowing far better the local conditions, needed to be given a degree of leeway in acting to ‘ensure religious peace in that region’ and preventing what some people would perceive as ‘unwarranted and offensive’ attacks on their religious beliefs.22 In Otto-Preminger we can see the Court ‘walking the high wire’, construing the case as one necessitating a balance two equally important Convention rights (religion and expression), rather than one in which freedom of expression had presumptive priority. As the majority put it, the case involved: weighing up … two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views and, by implication, the right of interested persons to take cognisance of such views, on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand.23 A characteristic of ECtHR case-law is its tendency, in cases of rights-­balancing where neither right has putative priority over the other and no pan-­European consensus exists, to afford states a wide margin of appreciation.24 This is on the basis that, in these circumstances (which are often controversial or highly emotive in nature), national authorities are best placed to judge how an appropriate balance should be struck.25 In such cases judges sitting in an international court evidently feel less confident about adjudicating because the metaphorical ‘wire’ is treacherous and difficult to cross, so they proceed slowly, ­making sure they are covered by the ‘safety-net’ of a wide margin of ­appreciation – in contrast to other areas such as contempt of court, where judges stride

21 22 23 24

25

Ibid., para. 50. Ibid., para. 56. Ibid., para. 55. The margin of appreciation gives the state a ‘certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action in the area of a Convention right…’: David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley, The Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2018), 14. See, e.g., Von Hannover v. Germany (No. 2), Application no. 40660/08, ECtHR judgment of 7 February 2012, paras. 104–107.

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confidently ahead and are willing to make bold judgments in defence of freedom of expression, notwithstanding restrictive measures imposed by states.26 The wide margin of appreciation afforded to the state in Otto-Preminger led to strikingly low levels of scrutiny of the proportionality of its actions.27 The ECtHR’s approach in this regard is questionable for a number of reasons. To begin with, it was improbable that anyone likely to be offended would have viewed the film,28 for any offence that might potentially have been caused to believers was almost certain to have been a kind of ‘secondary offence’ (i.e., offence at the knowledge that others were seeing the film, rather than direct offence caused by seeing themselves), so the Court’s assertion that the insulting portrayals of objects of religious veneration might inhibit the exercise of the right to freedom of religion seems less than tenable.29 What is more, the facts of Otto-Preminger reveal that this was a case of prior restraint – a form of restriction that, certainly in journalistic-speech contexts, the Court regards as being especially dangerous, and therefore requiring its ‘most careful scrutiny’.30 And finally, the ECtHR made the bold assertion that ‘gratuitously offensive’ remarks could constitute an ‘infringement’ of other’s rights, and ‘therefore’ could ‘not contribute to any form of public debate capable of furthering progress in human affairs’.31 This claim, which is arguably the most controversial element of the Otto-Preminger ruling, can be challenged on three grounds. First, the ECtHR’s ‘gratuitous offense’ dictum has major implications for artistic freedom, especially because it risks affording the state ‘wide and vaguely defined powers to prescribe the manner in which ideas and opinions are expressed’.32 To categorise any kind of artistic expression as gratuitous is 26

See, e.g., Sunday Times v. UK, Application No. 6538/74 [1979] ECHR 1 (26 April 1979), where, in balancing the right to freedom of expression (Article 10) and the right to a fair hearing (Article 6) – and affording the state a narrow margin of appreciation – the ECtHR held the UK to be in violation of Article 10. 27 The same point can also be made about the cases of Wingrove and İ.A (see n 40 and n 41 respectively). 28 See Otto-Preminger (n 15), dissents of Judges Palm, Pakkanen and Makarczyk, paras. 9–11. 29 For criticism of restricting behaviour on the grounds of secondary offence see Joel ­Feinberg, The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford ­University Press, 1985), 33. 30 Observer and Guardian v. UK, Application no. 13585/88, ECtHR judgment of 26 ­November 1991, para. 60. See also Eric Barendt, Freedom of Speech, 2nd edition (Oxford: Oxford ­University Press, 2005), 118–153. 31 Otto-Preminger (n 15), para. 49. 32 Ian Cram, “The Danish Cartoons, Offensive Expression and Democratic Legitimacy” in Ian Hare and James Weinstein (eds.) Extreme Speech and Democracy (Oxford: Oxford ­University Press, 2009), 327.

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problematic especially given the importance of art to human flourishing and social criticism.33 In particular, the role of satire has long been important in the development of European liberal democracies, as a way of critiquing entrenched elites, abuse of power and the status quo.34 Thus, to characterise a satirical film like Das Liebeskonzil, with its long artistic genealogy, as gratuitously offensive is concerning, and risks leading to a ‘radical loss of freedom’.35 Secondly, the Court’s assertion that gratuitously offensive expression must be an infringement of the rights of others is questionable. Of course, a strong case can be made for outlawing forms of expression that abuse or denigrate a class of people on the grounds, say, of their race or religion. After all, persuasive arguments have been made that such hate speech constitutes an attack on fundamental Convention values (e.g., dignity), and that its criminalisation is necessary to safeguard pluralism and protect minorities.36 But there is a significant difference between speech/conduct that would constitute incitement to discrimination, hostility or violence (e.g., the advocacy of religious hatred), and merely risking the causing of offence through the mockery or ridicule of objects of religious veneration. Thirdly, the ‘gratuitous offence’ dictum is problematic because of the ECtHR’s supposition that it cannot contribute to any form of public debate leading to progress in human affairs. It is hard to see how a court, composed of mere mortals, can predict in advance how particular forms of expression will contribute to human progress.37 As David Pannick, sagely observes: ‘No doubt Galileo, Copernicus and Spinoza offended religious feelings in their day, and were regarded as making no useful contribution to human knowledge.’38 Thus, the ECtHR’s assumption that gratuitous speech is not capable of contributing to the public discourse is deeply problematic.

33 34

See, e.g., Barendt (n 30), 13. See, e.g., Jonathan Swift, Gulliver’s Travels (1726) (Ware: Wordsworth, 1992); and Voltaire, Candide, or Optimism (1759) trans. Theo Cuffe (London: Penguin, 2005). 35 Claudia Lieb, “Freedom of Satire? Oskar Panizza’s Play Das Liebeskonzil in a Series of Trials in Germany and Austria” in Ralf Grüttemeier, ed. Literary Trials: Exceptio Artis and Theories of Literature in Court (New York: Bloomsbury, 2016), 107, 120. 36 See, e.g., Belkacem v. Belgium, Application no. 34367/14, ECtHR judgment of 27 June 2017; and Norwood v. UK, Application no. 2131/03, ECtHR judgment of 16 November 2004. 37 John Stuart Mill (1859) On Liberty (London: Penguin, 2006). See further Niraj Nathwani, “Religious cartoons and human rights,” European Human Rights Law Review (2008): 489, 499. 38 David Pannick, “Religious feelings and the European Court,” Public Law (1995): 7, 8.

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3.3 ECtHR Caselaw – the Immediate Legacy of Otto-Preminger In view of the above criticisms, it is perhaps hardly surprising that the ECtHR’s decision and reasoning in Otto-Preminger has generated much (often critical) comment.39 Furthermore, the Otto-Preminger ruling has cast a long shadow over the Court’s subsequent jurisprudence in this area. A case in point is ­Wingrove v. UK,40 where a wide margin of appreciation was afforded to the state, when the ECtHR held that the UK’s refusal to award a certificate permitting the distribution of a film about a nun’s erotic visions of Christ on the cross was justified by the need to protect the sensibilities of Christians. Likewise, in İ.A. v. Turkey,41 the Court held that there had been a ‘pressing social need’ for a ban on a novel which claimed (inter alia) that the prophet Mohammad ‘did not forbid sexual intercourse with a dead person or a live animal’. The Court held that the Turkish authorities had not overstepped their margin of appreciation because the book had offended Turkey’s majority Muslim population being an ‘abusive attack on the Prophet of Islam’ that had led believers to feel that they were the ‘object of unwarranted and offensive attacks’.42 In the last decade or so, however, there have been suggestions that the shadow of Otto-Preminger may be receding. Indeed, in İ.A. v. Turkey, the P ­ resident of the Court Judge Costa, in a dissenting opinion with others, submitted that the time had come to ‘revisit’ the case-law in this area which seemed ‘to place too much emphasis on conformism or uniformity of thought’ and reflected an ‘overcautious and timid conception’ of free speech.43 Although the ECtHR has not expressly repudiated its decision and reasoning in Otto-Preminger, there have been signs (admittedly not conclusive) that it has reappraised its earlier approach, and be less deferential to states in regard to attacks on spiritual leaders or religious doctrines. The essence of the Court’s apparent new approach has been for it to make every possible effort to identify a ‘public debate’ within the factual matrix of the case before it, thereby bringing the expression/speech in question within the sphere of ‘political’ or ‘public interest’ debate-speech. This category of ‘political’ or ‘public interest’ debate-speech has long been afforded considerable 39

40 41 42 43

For views in turn justificatory and critical of Otto-Preminger see, e.g., Paul Mahoney, “­Universality versus subsidiarity in the Strasbourg case-law on free speech: Explaining some recent judgments” European Human Rights Law Review (1997): 364; and Lord L­ ester of Herne Hill, “Universality versus subsidiarity: A reply,” European Human Rights Law Review (1998): 73. Wingrove v. UK, Application no. 17419/90, ECtHR judgment of 25 November 1996. İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 September 2005. Ibid., para. 29. Ibid., dissent of Judges Costa, Cabral Barreto and Jungwiert, para. 8.

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protection by the ECtHR,44 with only a narrow margin of appreciation being accorded to states that restrict such utterances.45 Moreover, in relation to the metaphorical ‘high wire’, the ECtHR’s willingness to embrace the ‘public interest’ characterisation of cases in this area has emboldened judges who, seemingly more confident of their footing, have felt able to subject state restrictions to meaningful proportionality analyses. This new approach has also allowed the ‘gratuitous offence’ doctrine to be side-lined. After all, if gratuitously offensive expression, as per the Otto-Preminger test, cannot ‘contribute to any form of public debate capable of furthering progress in human affairs’, then, according to the same logic, expression that does contribute to public debate cannot be gratuitously offensive. The influence of this reasoning on the jurisprudence of the ECtHR, and the extent to which the shadow of Otto-Preminger still lingers, will now be explored, starting with the first case that hints at this possible change in direction: Giniewski v. France.46 3.4 ECtHR Case-Law – Emerging from the Shadow of Otto-Preminger In Giniewski v. France a journalist named Giniewski challenged his defamation conviction, for having written a newspaper article that explored links between a doctrine developed by the Catholic Church and the origins of the Holocaust. The domestic courts held Giniewski’s article had ‘undermined the honour and character’ of Christians generally and Catholics in particular.47 However, the ECtHR took a different view when it ruled (unanimously) that there had been a violation of Article 10. The Court accepted that the article might offend, shock or disturb some people, but that it was ‘not “gratuitously offensive”, or insulting’, nor did it ‘incite disrespect or hatred’.48 Crucially, the Court found that by advancing an argument about a possible connection between the origins of the Holocaust and Catholic doctrine, Giniewski had contributed to ‘a wide-ranging and on-going debate without sparking off any controversy that was gratuitous or detached from the reality of contemporary thought.’49 Thus, because Giniewski’s article could be read as part of an on-going debate of ­public 44

See, e.g., Roland Dumas v. France, Application no. 34875/07, ECtHR judgment of 15 July 2010, para. 43, where comments on the functioning of the judiciary constituted a matter of public interest. 45 See e.g., Sürek v. Turkey (no. 1), Application no. 26682/95, ECtHR judgment of 8 July 1999, para. 61; and Axel Springer AG v. Germany, Application no. 39954/08, ECtHR judgment of 7 February 2012, para. 90. 46 Giniewski v. France, Application no 64016/00, ECtHR judgment of 31 January 2006. 47 Ibid., paras. 17–22. 48 Ibid., para. 52. 49 Ibid., para 50.

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interest, this enabled the ECtHR to narrow the margin of appreciation, and subject the restrictions to far higher levels of scrutiny than in Otto-Preminger. The ECtHR adopted a similar approach in Klein v. Slovakia.50 In this case the applicant (Klein), a journalist and film-critic, had published a magazine article strongly criticising the Catholic Archbishop of Slovakia for his opposition on television to the showing of a film, The People vs Larry Flint. The article also alluded to the Archbishop’s alleged involvement with the secret police of the former Communist regime and invited Catholics (who constituted 69 per cent of Slovakia’s population) to renounce their faith. Following its publication, Klein was convicted of publicly defaming and offending the religious feelings of members of the Catholic Church and fined 375 euros. However, when he challenged this before the ECtHR, it unanimously found a breach of Article 10, rejecting the domestic court’s conclusions that the rights of Christians had been violated,51 and holding that his ‘article neither unduly interfered with the right of believers to express and exercise their religion, nor did it denigrate the content of their religious faith’.52 Moreover, the Court emphasized the fact that the article had been a reaction to the Archbishop’s original statement that had been broadcast on the main TV evening news so, albeit without making the point as clearly as it did in Giniewski, the Court deemed the article to be part of an on-going public debate.53 More recently, in Tagiyev and Huseynov v. Azerbaijan,54 the Court adopted a similar approach, indicating possible signs of a desire to emerge from the shadow Otto-Preminger. The case involved two Azerbaijani journalists challenging their conviction and imprisonment for incitement to religious hatred under Article 10 of the ECHR. It followed their publication of a newspaper article that was part of a series on ‘East-West studies’, which covered a wide range of issues including the role of religion in Azerbaijan and (more generally)

50 51 52 53

54

Klein v. Slovakia, Application no. 72208/01, ECtHR judgment of 31 October 2006. Ibid., para. 49. Ibid., para. 52. Another example of a difference of approach was the fact that in Klein the ECtHR stressed that, when assessing proportionality, ‘the potential impact of the medium of expression’ was ‘an important factor’. This was because Klein’s article had been published in a weekly journal with a limited circulation (about 8,000) and was aimed at intellectually oriented readers who were intended to see it as a ‘literary joke’, paras. 47–48. This approach is in marked contrast to that of the European Court in Otto-Preminger, Wingrove and İ.A where the Strasbourg judges ignored the limited potential and actual impact of the publications. Tagiyev and Huseynov v. Azerbaijan, Application no. 13274/08, ECtHR judgment of 5 December 2019.

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Europe.55 Parts of the article were particularly critical of Islam, which it described as ‘a type of Eastern despotism’, while it also claimed that ‘[i]n comparison with Jesus Christ, the father of war fatwas… the Prophet Muhammad is simply a frightful creature’.56 Before the ECtHR the Government argued that the applicants’ criminal convictions had ‘met a pressing social need’ because the newspaper article had offended and insulted religious feelings, and that, as a result, ‘the domestic courts had struck the right balance between the rights protected under articles 9 and 10 of the Convention’.57 The Court however disagreed, holding that Tagiyev and Huseynov’s criminal convictions had been ‘disproportionate’ and therefore in violation of Article 10. In reaching this conclusion the Court reiterated the principle that, when it comes to matters such as ‘political speech or debates or questions of public interest’, efforts to place limits on these issues afford states a much narrower margin of appreciation.58 Moreover, on the facts of the case, the ECtHR held that a ‘reading of the whole text’ revealed that the publication in question ‘mainly dealt with the comparison between Western and Eastern values’ and ‘the role of religion in society’, so it should not have been banned, for it constituted a ‘debate on a matter of public interest’.59 In the three cases above – Giniewski, Klein, and Tagiyev and Huseynov – the European Court’s categorization of the expression at issue as ‘debate-speech’ had a significant effect on the degree of scrutiny to which it subjected the domestic decisions. Once it was determined that the expression constituted part of a debate, this drastically narrowed the margin of appreciation: the Strasbourg judges felt more confident in crossing the metaphorical high wire, and not as reliant on the safety-net of the margin of appreciation as in cases like Otto-Preminger, Wingrove and İ.A. It may be, of course, that the above three cases – all involving press articles written by journalists – are truly distinguishable in-kind from the artistic works in Otto-Preminger, Wingrove and İ.A. More specifically, given that the ECtHR’s ruling in Tagiyev and Huseynov actually came after its judgment in the (soon to be discussed) case of E.S. v. Austria, where the ECtHR seemingly returned to the Otto-Preminger approach, any supposed change of direction might be

55 56 57 58 59

One of the journalists, Mr Tagiyev, having spent thirteen months in detention, was ­ urdered on his release, so his widow pursued this application on his behalf, para. 23. m Ibid., para. 8. Ibid., para. 30. Ibid., para. 37. Ibid., para. 45.

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illusory. Yet, that said, there have nonetheless been signs in recent decades that the Court has also reappraised its approach to artistic expression. A case in point is Vereinigung Bildender Kunstler v. Austria,60 where an injunction had been issued to ban a painting, which (inter alia) had portrayed an Austrian Cardinal and Mother Teresa as participants in a group of public figures engaging in sexual activities. However, the ECtHR held the ban to be in violation of Article 10 on the basis that it was not necessary in a democratic society. In so doing the Court – by departing from the narrow Otto-Preminger approach to artistic speech, where it interferes with the ‘rights of others’61 – afforded more weight to free speech by emphasising the importance of artistic expression to democracy. It affirmed that ‘[t[hose who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.’62 Indeed, the ECtHR, in characterising the painting as a satirical image, held that ‘satire is a form of artistic expression and social commentary’ and that ‘any interference with an artist’s right to such expression must be examined with particular care.’63 An arguably even bolder approach in this regard was evident in the ECtHR’s ruling in Mariya Alekhina and Others v. Russia.64 The case concerned an Article 10 challenge brought by members of a Russian feminist punk band, Pussy Riot, following their conviction and prison term for attempting to perform a song entitled Punk Prayer – Virgin Mary, Drive Putin Away in Moscow’s Christ the Saviour Cathedral. The Court held that their ‘performance’ was a mixture of ‘conduct and verbal expression’ that amounted to a ‘form of artistic and political expression covered by Article 10’.65 Moreover, in reiterating its previous view that, under Article 10, there is ‘little scope … for restrictions on political speech or debates on questions of public interest’,66 the ECtHR noted that the applicants wished to highlight ‘topics of public interest’ such as their concerns about the political situation in Russia and the response of some clerics to street protests.67 These considerations, as well as the failure of the Russian 60

Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, ECtHR judgment of 25 January 2007. 61 Given that the ECtHR in Künstler was balancing Articles 8 and 10 of the ECHR, the rights of others were not religious per se in nature. 62 Ibid., para. 26. 63 Ibid., para. 33 (emphasis added). 64 Mariya Alekhina and Others v. Russia, Application No. 38004/12, ECtHR judgment of 17 July 2018. 65 Ibid., para. 206. 66 Ibid., para. 212. 67 Ibid.

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authorities to justify the harsh criminal sanctions imposed, led to the Court ruling that there had been a violation of Article 10. The ECtHR’s apparent willingness to afford fewer safeguards to religious feelings has, in recent years, even extended to the commercial realm. Thus, for example, in Sekmandienis Ltd v. Lithuania,68 a clothing company that had been fined for using models depicting religious figures to sell its products, with captions such ‘Jesus [and] Mary, what are you wearing!’, successfully invoked Article 10 on the basis that the advertisements were not evidently gratuitously offensive or profane or capable of inciting religious hatred. Likewise, in Gachechiladze v. Georgia,69 the ECtHR held that there had been a violation of Article 10 in relation to a product recall and ban on some brands of condoms, because the state had argued that certain designs on their packaging offended practising Orthodox Christians. The Court’s approach in these cases seems far removed from its earlier ruling in Otto-Preminger. Moreover, this apparent willingness on the part of the ECtHR to lean more towards freedom of expression as opposed to religious sensibilities whilst negotiating the metaphorical high wire is, in our opinion, a welcome development for at least four reasons. First, it is consistent with the ECtHR’s seminal remark in Handyside v. UK, that Article 10 must be ‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.’70 Second, it reflects the fact that the ECHR does not expressly guarantee the right to protection of religious feelings.71 Third, it avoids law and policy makers having to wrestle with the difficult question of why the religious feelings of believers are evidently more worthy of legal protection than say the feelings of those holding certain non-­ religious or ethical beliefs that also fall within Article 9 of the ECHR.72 Finally, it demonstrates that imposing restrictions on free speech does not adversely affect the ability of people of faith, or religious communities more generally, to exercise their rights of freedom of thought, conscience and religion.73 68

Sekmandienis Ltd v. Lithuania, Application no 69317/14, ECtHR judgment of 20 January 2018. 69 Gachechiladze v. Georgia, Application no. 2591/19, ECtHR judgment of 22 July 2021. 70 Handyside v. UK, Application no. 5493/72, ECtHR judgment of 7 December 1976, para. 49. The ECtHR repeats this remark in virtually every Article 10 case. 71 This point was made by Judges Palm, Pekkanen and Makarczyk, dissenting, in ­Otto-Preminger, n 15, para. 6. 72 For a critique of the view that respect should be afforded to religious beliefs see Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2014), 68–91. 73 See e.g., Cram (n 32), 320.

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However, notwithstanding the fact that various other arguments could be made to corroborate the four identified above, such reasoning appears not to have cut-much-ice with the ECtHR, particularly given its ruling in E.S. v. Austria, to which we now turn.74 4

E.S. v. Austria – the Shadow of Otto-Preminger Returns

In E.S. the ECtHR was faced with the challenge of: weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.75 The applicant (E.S.) in this case was a member of the right-wing Austrian Freedom Party, who had organised a public seminar entitled “Basic Information on Islam”.76 The comments in question referred to the seventh-century Prophet Muhammad’s marriage to the 6-year-old Aisha, and the applicant remarked (inter alia) that Muhammad ‘liked to do it with children’ and ‘[w]hat do we call it, if it is not paedophilia?’. The applicant was subsequently convicted under the Austrian Criminal Code for disparaging religious doctrines, and ordered to pay a fine of 480 euros, as well as the costs of proceedings. Having lost before the domestic courts, the applicant then invoked Article 10 before the ECtHR. There she argued that her words about Muhammad should be protected because they were value judgments which had been spoken in the context of an objective and lively discussion about Islam that contributed to a public debate.77 The ECtHR however disagreed, holding that E.S.’s remarks were not protected by Article 10 since they had ‘not been made in an objective manner aimed at contributing to a debate of public interest’ on an issue like child-­marriage, but rather they had been ‘aimed at demonstrating that Mohammad was not a worthy subject of worship’.78 As such, they were liable to arouse justified 74 75 76 77 78

E.S. v Austria, Application no 38450/12, ECtHR judgment of 25 October 2018. Ibid., para. 46. Ibid., paras. 44 and 46. Ibid., para. 16. Ibid., para. 52.

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indignation in others, jeopardise the peaceful co-existence of ­religious and non-religious groups, and hurt the feelings of Muslims.79 The Court held that the domestic courts had ‘carefully balanced [E.S.’s] right to freedom of expression with the rights of others to have their religious feelings protected’80 and had not overstepped their ‘wide margin of appreciation in the instant case’.81 By upholding the decision of the domestic authorities, the ECtHR, as it negotiated the metaphorical high wire balancing the rights of free speech and religious feelings, chose to lean more towards the latter, thereby bringing into focus the ‘safety-net’ of the margin of appreciation. A key reason for this course appears to have been that, as the Court itself acknowledged, ‘the subject matter of the instant case is of a particularly sensitive nature’.82 Certainly, it is hard to think of anything more offensive to people of faith than the suggestion that their most venerated human figure was a paedophile – an especially hurtful slur for Muslims who view Muhammad as having been ‘a paradigm of behaviour’,83 for whom their love constitutes the very ‘raison d’être’ of their existence.84 Thus, mindful of these considerations, and the fact that Strasbourg’s judges have been criticised in the past for having interfered too much in domestic legal affairs,85 it is easy to see why the ECtHR, in traversing the high wire in E.S., placed so much emphasis on the ‘safety-net’ of a wide margin of appreciation. It is however an approach that has attracted considerable criticism, not least because of the consequences of the ruling. An obvious first consequence is the ECtHR’s effective resurrection of ­Otto-Preminger. Not only does the spirit of Otto-Preminger suffuse the decision, but the Court specifically cited it in holding that Article 9 of the ECHR places curbs on forms of expression that are ‘gratuitously offensive to others and profane’ or constitute ‘an improper or even abusive attack on an object of religious veneration’.86 Many of our earlier criticisms of Otto-Preminger would thus seem to apply equally to this statement. 79 80 81 82 83 84 85

86

Ibid., paras. 53–55. Ibid., para. 57. Ibid., para. 58 (our emphasis). Ibid., para. 50. Ziauddin Sardar and Merryl Wyn Davies, Distorted Imagination: Lessons from the Rushdie Affair (London: Grey Seal, 1990), 165. Muhammad Manazir Ahsan and Abdur Raheem Kidwai, Sacrilege versus Civility – Muslim Perspectives on the Satanic Verses Affair (Markfield: The Islamic Foundation, 1991), 36. See e.g, former UK Supreme Court Justice Jonathan Sumption, “Human Rights and Wrongs,” the third of the Reith Lectures in 2019, where Lord Sumption argues that the ECtHR has usurped power by its interpretation of human rights law, https://www.bbc .co.uk/programmes/m0005msd E.S. (n 74), para. 43, quoting from Otto-Preminger, para. 47.

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A second consequence of E.S. is that, because the ECtHR based its judgement on the defamation of the Prophet Muhammed, the waters – in terms of distinguishing clearly between inciting hatred and blasphemy – have been muddied. This certainly has been a criticism levelled at the Court’s ruling in E.S.,87 with claims that it has given ‘its blessing to the criminalisation of b­ lasphemy, in all but name’.88 This ‘blasphemy by the back door’ charge is a serious one, particularly given the common assumption that blasphemy laws rest uneasily with human rights generally and the right to freedom of e­ xpression in particular.89 What is more, the E.S. ruling is seemingly at odds with the persuasive view that attention should be focused on ways of effectively tackling ‘the issue of ­advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence’ as opposed to ‘focussing on strategies to counter defamation of religions’.90 The final consequence of E.S. is that, as Eva Hauksdóttir argues, it raises more questions than it answers ‘about the Court’s methodology in blasphemy cases’, and ‘concerning the interplay of Articles 9 and 10 of the Convention’.91 More specifically, the Court’s ruling offers little guidance on when, if ever, utterances that make reference to the respective ages of Muhammad and Aisha at the time of their marriage, might be protected by Article 10. A case in point is that of Charles Moore, the former editor of The Daily Telegraph, who in 2004 provoked controversy when he argued that people had a right to ask if the prophet Muhammad was a paedophile because of Aisha’s age when they married. Whereas E.S. spoke at a conference organised by a far-right political party with a reputation for hostility towards Islam, Moore’s comments were (avowedly) made in order to highlight what he regarded as the threat to free speech posed 87 88 89

90 91

Stijn Smet, “Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammad in E.S v. Austria” 15, no.1 (2019) European Constitutional Law Review: 158, 160. Marko Milanovic, “Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgement in E.S v Austria,” October 29, 2018, https://www.ejiltalk.org/legitimizing -blasphemy-laws-through-the-backdoor-the-european-courts-judgment-in-e-s-v-austria/ See. e.g., Caleb Holzapfel, “Can I Say That: How an International Blasphemy Law Pits the Freedom of Religion against the Freedom of Speech” Emory International Law Review 28 (2014): 597. However, for a different perspective see Neville Cox, ‘Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law,” Journal of Law and Religion 35, no. 1 (2020): 33, who argues, at 35, that ‘the statement that a blasphemy law must always represent an unjustifiable interference with the international right to freedom of expression is a dubious one’. Jeroen Temperman, “Blasphemy, Defamation of Religions and Human Rights Law,” ­Netherlands Quarterly of Human Rights 26, no. 4 (2008): 517, 517. Eva Hauksdóttir, “Restricting Freedom of Expression for Religious Peace: On the ECHR’s Approach to Blasphemy” (2021) European Convention on Human Rights Law Review 2, no.1 (2021): 75, 75–6.

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by the then UK government’s plan to outlaw incitement to religious hatred in England and Wales.92 Indeed, in the light of the ECtHR’s ruling in E.S., might there be any other circumstances in which speech ‘defaming’ the central figure in a religion should be constrained? Judge Robert Spano has recently acknowledged that ‘Convention rights are seldom developed in the abstract’,93 and the ECtHR in E.S. affirmed that, in cases in this area, the ‘impugned statements depend, to a certain degree, on the situation in the country where the statements were made at the time and the context in which they were made’.94 It would be unrealistic for the Court in E.S. to have provided guidance for every possible scenario, but its judgment in the case was rather lacking in detail so, inevitably, uncertainty remains. As the former English High Court Judge, Sir David Eady once observed, ‘there is no more “chilling effect” upon freedom of communication … than uncertainty as to the lawfulness of one’s actions’.95 5 Conclusion When the film Das Leibeskonzil premiered in 1982 at the Berlin Film Festival, reviewers described it as ‘boring and as harmless as a puppet show’.96 Yet this was the film that was subsequently banned in Austria for ‘disparaging religious doctrines’, and the subject of the ECtHR’s contentious ruling in Otto-Preminger. Cases like this, as noted at the start of this chapter, often provoke very different reactions. Accordingly, the challenge of balancing the rights of those who wish to denigrate religion/belief, and the rights of those who object to such disparaging attacks, is a formidable one, which effectively requires judges to have the metaphorical agility and skills of a high wire walker. Today in Europe, the ECtHR has an important role to play in terms of offering guidance on the parameters of the right to freedom of expression where offence has been caused to the feelings of religious believers. Yet the way in which the ECtHR should negotiate the metaphorical wire provokes different 92 93 94 95 96

Steven Morris and Faisal al Yafai, “Sack Moore, angry Muslims tell Telegraph,” The Guardian, December 14, 2004, https://www.theguardian.com/media/2004/dec/14/press andpublishing.religion. Judge Robert Spano, “What role for human duties, obligations and responsibilities in our European human rights discourse?”, University of Copenhagen Law Faculty, 2 December 2021. https://www.echr.coe.int/Documents/Speech_20211202_Spano_Law_Faculty_Copenh agen_ENG.pdf E.S. (n 74), para. 50. Jameel v. Wall Street Journal [2004] EWHC 37 (QB), 18. Lieb (n 35), 115.

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responses. Some will prefer the approach of cases like Otto-Preminger and E.S. where the ECtHR – evidently mindful of the highly emotive nature of attacks on religious feelings – has tilted more towards the protection of freedom of religion/belief, thereby ensuring it is covered by the safe-net of a wide margin of appreciation. In contrast, others will favour a more robust free speech/ public interest approach, whereby the ECtHR displays greater confidence and self-assurance in walking the “wire”. In this chapter, as evidenced by the arguments made earlier in this chapter, we favour the latter approach. In advancing this position, we suggest that it is apposite to take cognisance of the sentiments of French high wire artist Philippe Petit, best known for his high wire walk between the Twin Towers of the World Trade Centre in New York City in 1974, as documented in the 2008 film, “Man on Wire”. Petit comments: The gods in my feet know how not to hit the cable, how not to make it move when each foot lands. … Wirewalker, trust your feet! Let them lead you; they know the way.97 It is perhaps time for the European Court to look more at the wire, less at the safety-net and to “trust its feet”. Bibliography Books

Barendt, Eric. Freedom of Speech, 2nd edition. Oxford: Oxford University Press, 2005. Cook, Michael. Ancient Religions, Modern Politics: The Islamic Case in Comparative P­ erspective. Princeton: Princeton University Press, 2014. Feinberg, Joel. The Moral Limits of the Criminal Law: Offense to Others. Oxford: Oxford University Press, 1985. Harris, David, et al. The Law of the European Convention on Human Rights. Oxford: Oxford University Press, 2018. Hitchens, Christopher. God is not Great: How Religion Poisons Everything. Toronto: McClelland & Stewart, 2008). Muhammad Manazir Ahsan and Abdur Raheem Kidwai. Sacrilege versus Civility – Muslim Perspectives on the “Satanic Verses Affair”. Markfield: The Islamic Foundation, 1990. 97 See, https://www.everypainterpaintshimself.com/blog/artistic_performance_on_a_high _wire.

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Leiter, Brian. Why Tolerate Religion? Princeton: Princeton University Press, 2014. Mill, John Stuart. On Liberty (1859). London: Penguin, 2006. Roy, Olivier. Holy Ignorance: When Religion and Culture Part Ways. New York: Columbia University Press, 2010. Sardar, Ziauddin & Wyn Davies, Merryl. Distorted Imagination: Lessons from the R ­ ushdie Affair. London: Grey Seal, 1990. Stark, Rodney & Finke, Roger. Acts of Faith: Explaining the Human Side of Religion (Berkeley: University of California Press, 2000), 79. Swift, Jonathan. Gulliver’s Travels (1726). Ware: Wordsworth, 1992. Temperman, Jeroen & Koltay, András eds. Blasphemy and Freedom of Expression: ­Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre. Cambridge: Cambridge University Press, 2017. Voltaire. Candide, or Optimism (1759). Translated by Theo Cuffe. London: Penguin, 2005. Bryan Wilson, Religion in Secular Society. London: Penguin, 1966.



Book Chapters



Journal Articles

Cram, Ian. “The Danish Cartoons, Offensive Expression and Democratic Legitimacy”. In Extreme Speech and Democracy, edited by Ian Hare and James Weinstein, 311– 330. Oxford: Oxford University Press, 2009. Temperman, Jeroen. “‘Mother of God, Drive Putin Away’: On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights.” In Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre, edited by Jeroen Temperman and András Koltay, 294– 314. Cambridge: Cambridge University Press, 2017. Lieb, Claudia. “Freedom of Satire? Oskar Panizza’s Play Das Liebeskonzil in a Series of Trials in Germany and Austria.” In Literary Trials: Exceptio Artis and Theories of Literature in Court, edited by Ralf Grüttemeier, 107–122. New York: Bloomsbury, 2016.

Brown, Peter D.G. “The Continuing Trials of Oskar Panizza: A Century of Artistic ­Censorship in Germany, Austria, and Beyond.” German Studies Review 24 (2001): 533–56. Cox, Neville. “Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law.” Journal of Law and Religion 35, no. 1 (2020): 33–60. Lord Lester of Herne Hill. “Universality versus subsidiarity: A reply.” European Human Rights Law Review (1998): 73–81. Hauksdóttir, Eva. “Restricting Freedom of Expression for Religious Peace: On the ECHR’s Approach to Blasphemy.” European Convention on Human Rights Law Review 2, no.1 (2021): 75–118.

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Holzapfel, Caleb. “Can I Say That: How an International Blasphemy Law Pits the ­Freedom of Religion against the Freedom of Speech.” Emory International Law Review 28 (2014): 597–648. Mahoney, Paul. “Universality versus subsidiarity in the Strasbourg case-law on free speech: Explaining some recent judgments.” European Human Rights Law Review (1997): 364–379. Nathwani, Niraj. “Religious cartoons and human rights.” European Human Rights Law Review (2008): 488–507. Pannick, David. “Religious feelings and the European Court.” Public Law (1995): 7–10. Smet, Stijn. “Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammed in E.S v. Austria.” European Constitutional Law Review 15, no.1 (2019): 158–170. Temperman, Jeroen. “Blasphemy, Defamation of Religions and Human Rights Law.” Netherlands Quarterly of Human Rights 26, no. 4 (2008): 517–445.



Newspaper Articles



Public Speeches

Collins, Padraig. “Stephen Fry investigated by Irish police for alleged blasphemy,” The Guardian, May 7, 2017. https://www.theguardian.com/culture/2017/may/07/stephen-fry-investigated-by-irish -police-for-alleged-blasphemy. McDonald, Henry. “Stephen Fry calls God an ‘evil, capricious, monstrous maniac,’” The Guardian, February 1, 2015. https://www.theguardian.com/culture/2015/feb/01/stephen-fry-god-evil-maniac -irish-tv. Morris, Steven & Yafai, Faisal al. “Sack Moore, angry Muslims tells Telegraph,” The Guardian, December 14, 2004. https://www.theguardian.com/media/2004/dec/14 /pressandpublishing.religion. Rawlinson, Kevin. “Stephen Fry ‘God is evil’ interview up for religious broadcasting award.” The Guardian, March 21, 2016. https://www.theguardian.com/media/2016/mar/21/stephen-fry-god-evil-interview -religious-broadcasting-award.

Sumption, Jonathan. “Human Rights and Wrongs,” Reith Lecture, June 8, 2019, https:// www.bbc.co.uk/programmes/m0005msd. Spano, Robert. “What role for human duties, obligations and responsibilities in our European human rights discourse?” University of Copenhagen Law Faculty, ­December 2, 2021. https://www.echr.coe.int/Documents/Speech_20211202_Spano_Law_Faculty_Copen hagen_ENG.pdf.

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Websites

Milanovic, Marko. “Legitimizing Blasphemy Laws Through the Backdoor: The E ­ uropean Court’s Judgement in E.S v Austria,” October 29, 2018. https://www.ejiltalk.org/legitimizing-blasphemy-laws-through-the-backdoor-the-eur opean-courts-judgment-in-e-s-v-austria/. Every Painter Paints Himself. “God Help Me!.” quoting Philippe Petit. https://www .everypainterpaintshimself.com/blog/artistic_performance_on_a_high_wire.



European Court of Human Rights Cases



Other Cases



International Instruments

Axel Springer AG v. Germany, Application no. 39954/08, ECtHR judgment of 7 ­February 2012. Belkacem v. Belgium, Application no. 34367/14, ECtHR judgment of 27 June 2017. E.S. v Austria, Application no 38450/12, ECtHR judgment of 25 October 2018. Gachechiladze v. Georgia, Application no. 2591/19, ECtHR judgment of 22 July 2021. Giniewski v. France, Application no. 64016/00, ECtHR judgment of 31 January 2006. Handyside v. UK, Application no. 5493/72, ECtHR judgment of 7 December 1976. İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 September 2005. Klein v. Slovakia, Application no. 72208/01, ECtHR judgment of 31 October 2006. Mariya Alekhina and Others v. Russia, Application No. 38004/12, ECtHR judgment of 17 July 2018. Otto-Preminger-Institut v. Austria, Application no. 13470/87, ECtHR judgment of 20 September 1994. Roland Dumas v. France, Application no. 34875/07, ECtHR judgment of 15 July 2010. Sekmandienis Ltd v. Lithuania, Application no. 69317/14, ECtHR judgment of 20 ­January 2018. Soering v. UK, Application no. 14038/88, ECtHR judgment of 7 July 1989. Sunday Times v. UK, Application no. 6538/74, ECtHR judgment of 26 April 1979. Sürek v. Turkey (No. 1), Application no. 26682/95, ECtHR judgment of 8 July 1999. Tagiyev and Huseynov v. Azerbaijan, Application no. 13274/08, ECtHR judgment of 5 December 2019. Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, ECtHR judgment of 25 January 2007. Von Hannover v. Germany (No. 2), Application no. 40660/08, ECtHR judgment of 7 February 2012. Wingrove v. UK, Application no. 17419/90, ECtHR judgment of 25 November 1996.

Jameel v. Wall Street Journal [2004] EWHC 37 (QB).

The European Convention on Human Rights and Fundamental Freedoms, 1950.

Chapter 14

Liberalism, Religious Pluralism, and the Environment P T Babie 1 Introduction1 Liberalism as a political theory seeks to protect freedom of choice within a system of competition. As a vehicle used by and which forms a part of that liberal theory, private property serves to protect freedom of choice in the allocation and use of goods and resources amongst competing claims. When invoked in a legal system, private property allows for the parcelling out or dividing up of the world’s resources, both natural and produced. In the case of the former, a complex system of natural resources law identifies who may hold a resource, how it may be held and used, and how that use may be protected against the interference of others.2 Those things which we produce from the earth’s natural resources are also subject to property law, which itself includes both personal (moveables) and real (land and those things attached to land, or immovables). Comparatively recently, most legal systems have added some form of intellectual property, which provides protection for new, yet intangible, innovation.3 Private property, then, is the implementation of choice secured to both natural persons and legal ­persons—corporations—around the allocation, control, and use of goods and resources, natural and produced. In short, private property is a manifestation of liberal/neoliberal competition. But the choices which natural and legal persons make about the use of goods and resources—liberal competition over goods and resources—affect others. Whenever we decide to use a thing in a specific way, all others cannot 1 Some of the material in this chapter appeared in other versions in Paul Babie, “Why Should I Do This? Private Property, Climate Change and Christian Sacrifice” in Law and Religion in Public Life: The Contemporary Debate, eds. Nadirsyah Hosen & Rick Mohr (Oxford: Routledge, 2011), 165–193 and Paul Babie, “Private Property in Post-Secular Law: An Introductory Foray,” University of Queensland Law Journal 32, no. 2 (2013): 237. 2 Lawrence J MacDonnell, The Law of Nature’s Resources (Self-Published by Author, 2012), v. 3 Robert P Merges, Justifying Intellectual Property (Cambridge, Massachusetts: Harvard ­University Press, 2011); Michael Spence, Intellectual Property (Oxford: Oxford University Press, 2007). © Koninklijke Brill NV, Leiden, 2023 | DOI:10.1163/9789004504967_015

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use that thing in any way at all, or are affected negatively in some other way. Moreover, these choices also affect the environment, usually detrimentally. The best example of this is climate change, which affects others through the effect that human activity has on the environment.4 Thus, when we choose a particular course of action in the way we use a good or resource, every aspect of our planet is affected.5 So how should we choose? The Millsian harm principle provides the framework within which the liberal individual acts: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”6 Beyond that, however, liberalism fails to offer any readily apparent moral or ethical limitations upon the ways in which this decision-making is exercised by the individual or corporate holder.7 True, there are many bases upon which the liberal individual, faced with choice, may decide on a particular course of action about a particular thing— usually classified under the banner of secular humanism—which reject religion, spirituality, and superstition as valid means of exercising choice. Entire fields of study—such as social choice theory and rational choice theory—seek to explain how choice is exercised by the liberal individual. Stephen L Carter suggests: Choice is not wicked. Choice is the essence of freedom, and liberalism has done more than any political idea in history to promote and protect it. Liberalism, however, is like neoclassical economics: a theory about the availability of choice without a theory about the virtue of good choices. 4 See Paul Babie, “Choices that Matter: Three Propositions on the Individual, Private Property and Anthropogenic Climate Change,” Colorado Journal of International Environmental Law and Policy 22, no. 3 (2011): 323. 5 See Isabelle Blacketer, Fiona Luu, & Paul Babie, “The 21st Century Challenges of Transboundary Water Management and the Limits of International Water Law,” Michigan State Law Review [2022]: in press; Paul Leadbeter, Kyriaco Nikias, & Paul Babie, “Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers,” Journal of Environmental Law and Litigation 35 (2020): 1; Paul Leadbeter, Kyriaco Nikias, & Paul Babie, “Property, Unbundled Water Entitlements, and Anticommons Tragedies: A Cautionary Tale from Australia,” M ­ ichigan Journal of Environmental & Administrative Law 9 (2019): 107; Planet A (Documentary) (SBS, 2021), sbs.com.au/ondemand/program/planet-a?/?. 6 John Stuart Mill, On Liberty, ed., Gertrude Himmelfarb (London: Penguin, 1974), 68. 7 Although for a refreshing example of the way in which guidance might be found in liberal law, see Peter M Gerhart, Tort Law and Social Morality (Cambridge: Cambridge University Press, 2010); Peter M Gerhart, Property Law and Social Morality (Cambridge: Cambridge ­University Press, 2013); Peter M Gerhart, Contract Law and Social Morality (Cambridge: ­Cambridge ­University Press, 2021).

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It should not be surprising, then, that the liberal state has generated a market that produces all the gore and horror people demand. When the heavy metal group Cannibal Corpse sings about masturbating with the severed head of a murdered child, liberal theory possesses no tools with which to explain why such music is bad and is unable to accept the notion that people who derive utility from listening to such music should be discouraged from doing so. What religion provides, and liberalism by its nature cannot, is a mechanism for selecting among the available choices. The mechanism of choice is morality.8 Religion stands in counterpoint to liberal secular humanism. A person, faced with choice about the use of a thing, may turn either to a secular humanist, or to a religious worldview, or to a combination of the two, to assist in making a decision, or to support a choice already made. David R Loy and John Stanley write that “[m]ost people still get their worldview from their religion, and this implies a special responsibility for religions today.”9 Yet, while religion is a possible source of guidance in exercising choice, it is often at best marginalised or sidelined, and at worst ignored or dismissed. This chapter draws religion into the discussion about how we exercise choice that affects the environment. Drawing religion into this debate is not as strange as it might at first seem. The academy already takes seriously the transdisciplinary role that religion can play in providing guidance on the protection of the environment.10 Even traditionally secular organisations are turning to religion, faith, and ­spirituality as a source for possible responses to the human treatment of the environment. The World Wildlife Fund, for instance, has established the Sacred Earth P ­ rogram “…to provide faith leaders and religious institutions with a platform on which they can build conservation messages and lead environmental change.”11 In fact, as the world enters a period which some have called the era of post-­secular

8 9 10 11

Stephen L Carter, “Liberal Hegemony and Religious Resistance: An Essay on Legal Theory” in Christian Perspectives on Legal Thought, eds. Michael W McConnell, Robert F Cochran, Jr, and Angela C Carmella (New Haven: Yale University Press, 2001), 48. David R Loy and John Stanley, “The Buddhadharma and the Planetary Crisis,” in A Buddhist Response to the Climate Emergency, eds., John Stanley, David R Loy, and Gyurme Dorje (Boston: Wisdom Publications, 2009), 3–13, 12, and see 8. See Sigurd Bergmann and Dieter Gerten, eds., Religion and Dangerous E­ nvironmental Change: Transdisciplinary Perspectives on the Ethics of Climate and Sustainability (­Münster: LIT Verlag, 2010). “Do unto the planet,” NewScientist, February 2, 2013, 26.

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law12 and one increasingly interconnected and pluralistic, it seems that all options, including religion, may have something to offer in response to the question of choice. Indeed, it is entirely possible that there may never have been a truly secular order; instead, religion may be deeply embedded in the very DNA of the western legal tradition,13 of law,14 and of liberalism itself.15 Neoliberal choice may, therefore, itself dictate that religion be one among many frameworks which can be used to guide the exercise of choice. This chapter explores what religion might say about the exercise of choice concerning goods and resources contained in private property. Not religion in the singular, but plural. Increasingly, we live in a world in which the members of all societies share space—both physical and social—with more than one religious worldview; indeed, many societies are multicultural or multifaith, making space for numerous religious worldviews. A plural approach reveals to us something easy to overlook—each religious tradition is in fact a unique vision of relationship, or community, each at once separate from, but also clearly related to, others. Every religious tradition contains ethical and moral principles that encompass two broad themes pertaining to the exercise of choice: first, a conception of the individual as socially situated or relational which, second, has implications for the meaning of community. This chapter therefore considers religious traditions from both polytheistic (e.g., H ­ induism and Buddhism) and monotheistic traditions (e.g., Judaism, Islam, and Christianity)16 which demonstrate complementary themes of community and obligation in the use of goods and resources. Put another way, taken together, religious traditions provide guidance in the exercise of the liberal choice contained in private property. Loy and Stanley argue, “if religious worldviews need to be updated in response to the climate emergency, different religions need to do a better job 12

Winnifred Fallers Sullivan, Robert A Yelle, & Mateo Taussig-Rubbo, After Secular Law (Redwood City: Stanford University Press, 2011). 13 See Harold J Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Massachusetts: Harvard University Press, 1983). 14 Theodore FT Plunknett, A Concise History of the Common Law (Carmel: Liberty Fund, 5th ed., 1956), 8–9. 15 Carter, “Liberal Hegemony”, 25, 48. 16 The monotheistic traditions are those which worship one god: Judaism, Christianity and Islam, sometimes referred to collectively as the “Children of Abraham”, alluding to the central role played by Abraham in the emergence of each of the three traditions; or the “People of the Book”, given the importance placed by the three upon the Hebrew ­Scriptures or Old Testament: FE Peters, The Children of Abraham: Judaism, Christianity, Islam (Princeton: Princeton University Press, 2004).

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talking to each other and learning from each other. But how can they do that unless different groups within each religion communicate better?”17 A plural religious approach allows religions to talk to one another around the question of exercising liberal choice. Of course, simply picking and choosing this element and that from a range of religious traditions is nothing more than a tendentious and self-serving confirmation of one’s biases. But what is surprising, as I will also show, is that many religious worldviews, and certainly the ones I consider in this chapter, provide a comprehensive framework within which to exercise choice so as to benefit others and the environment. That is the novel point of this chapter: that most, if not all, fully functioning religions aim at much the same thing in relation to the control and use of things. And that sameness resides in two concepts: community and obligation. Religious worldviews tend to prioritise the collective good or obligation over individual right or choice. Before we can understand the contribution of religion to the way we exercise choice, however, we need to consider the source of choice itself. Part 2, then, briefly considers the liberal source of choice and its invocation in private property. Part 3 explores the concepts of community and obligation found in the three monotheistic traditions (those which hold that god is one indivisible entity)—Judaism, Christianity, and Islam—and two traditions drawn from polytheistic faiths (those that understand either god as being divisible into multiple entities, or which hold that there exist multiple gods)—Hinduism and Buddhism. Part 4 offers brief concluding reflections on a plural approach to religion as a framework for exercising the liberal choice contained in private property. 2 Liberalism This part contains three sections: first, a brief exploration of the nature of choice in liberal theory; second, the invocation of liberal theory in the concept of private property; and, third, the way in which the exercise of choice pursuant to the concept of property invoked in a legal system stands behind the contemporary challenge of climate change, which is a form of relationship instantiated by property between persons and between persons and the environment.

17

Loy and Stanley, “The Buddhadharma”, 3–13, 12, and see 8.

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2.1 Choice All political theory classified as liberal invokes a core set of assumptions concerning the individual, the role of the polity, and the manner of constructing rules for both.18 Most agree that reason is prioritised over faith in the construction of public norms, the individual constitutes the fundamental unit of social life and comes before others, and freedom is paramount in setting one’s own conception of the good.19 In all of this, one finds the centrality of choice.20 For liberalism, “…a just society is one composed of free and equal individuals, each permitted to pursue his or her own view of the good life (so far as that does not interfere with other people’s life-plans).”21 In short, every person is separate or autonomous from every other;22 the life projects we choose are “…­independent and often different from one another….”,23 with “…autonomous individuals… shar[ing] a capacity for rational deliberation but…not n ­ ecessarily…a common set of interests.”24 In choosing a life project, the autonomous individual enjoys the largely unfettered “…liberty that, by definition, stands defiant of objections and intervention on grounds of the substance of the project chosen.”25 Whether this rests on equality26 or freedom,27 the value that lies at the core of autonomy is that “…people should be ‘free to choose[]’” and society and its legal system should “…strive to design policies that maintain or increase freedom of choice[]”.28 Stephen Carter concludes: “[c]hoice is the essence of freedom, and 18

Paul W Kahn, Putting Liberalism in its Place (Princeton: Princeton University Press, 2005), 13. 19 Ibid., 13–4. 20 For a summary of some of the major liberal theories and theorists see JW Harris, Legal Philosophies (Oxford: Oxford University Press, 2nd ed., 2004), 277–300. 21 Ibid, 281. See also Ted Decoste, “Taking Torts Progressively,” in Tort Theory, eds. Ken CooperStephenson and Elaine Gibson (Concord, Ontario: Captus Press, 1993), 240, 242–3. 22 Decoste, “Taking Torts,” 243. 23 Ibid. 24 Kahn, Putting Liberalism, 14. 25 Decoste, “Taking Torts,” 243. 26 Ronald M Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard ­University Press, 2nd ed., 1978); Ronald M Dworkin, A Matter of Principle (Oxford: Oxford University Press, 1985); Ronald M Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986). 27 Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986). 28 Richard H Thaler and Cass R Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven: Yale University Press, 2008) 5 and 4–14. See also Andreas Kalyvas and Ira Katznelson, Liberal Beginnings: Making a Republic for the Moderns (­Cambridge: Cambridge University Press, 2008). On the complexity of the relationship between private property and freedom see Jedediah Purdy, “A Freedom-­Promoting

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liberalism has done more than any political idea in history to promote and protect it.”29 Yet, in taking choice as a foundational value, absent some other form of organisation, there is nothing to prevent Hobbes’s “…war…of every man against every man[]” in which life becomes “…solitary, poor, nasty, brutish, and short.”30 Liberalism, in seeking to ensure order, through enshrining choice at its core, has the potential either to preserve individual autonomy through allowing the diminishment of others or to preserve order at the expense of autonomy.31 ­Liberalism negotiates this seeming paradox through rights, which: …cure the problem of disorder by protecting the autonomy of each individual against intrusion arising from the exercise of the autonomies of all other individuals. This they do first by enveloping each individual in a sphere of inviolability, and then—since inviolability does not, of course, entail invincibility—by providing for state enforcement of the sphere through remediation of intrusions.32 Liberalism as political theory concerns itself, above all, then, with promoting and protecting freedom of choice for the individual.33 And throughout its history, liberalism has gone about establishing rights to protect that freedom in a number of ways. Once a life project is chosen, there are myriad other choices made in the pursuit of that larger project which require goods and resources. Private property confers and protects the rights necessary for such choices; it is one of the ways in which the state secures freedom of choice to the individual in relation to the use of goods and resources.34 2.2 Private Property If the core of liberalism is choice, private property is the vehicle by which the state confers it upon the individual.35 This is a point which often confuses.

29 30 31 32 33 34 35

Approach to Private Property: A Renewed Tradition for New Debates,” University of ­Chicago Law Review, 72 (2005): 1237. Carter, “Liberal Hegemony,” 48. Thomas Hobbes, Leviathan (London: Penguin, 1651), pt. 1, ch. 13. Decoste, “Taking Torts,” 244. Ibid., 244–5. See Kalyvas and Katznelson, Liberal Beginnings, generally; Kahn, Putting Liberalism, 30; Carter, “Liberal Hegemony,” 47–9. Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), 31–40. Jeremy Bentham, The Theory of Legislation (1802), vol 1, 113. See also Margaret Jane Radin, Reinterpreting Property (Chicago: Chicago University Press, 1993), 121–3. For various

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For at least the last 300 years, property has been viewed not as things—cars, houses, money, clothes, ideas, university degrees, natural resources, and so forth—but as rights.36 This “bundle of rights” is frequently said to contain three primary rights, known as the “liberal triad”: use, exclusivity, and alienability.37 The bundle is sometimes held by an individual or group, or, more frequently, it is distributed among many individuals or groups.38 However a legal system bundles them, and whomever might hold them, rights confer choice, or “decisionmaking authority” to determine the use of goods and resources, “a claim that other people ought to accede to the will of the owner.”39 Or, put another way, private property confers “…the special authority to set the agenda for a [good or] resource[]”40 and to act upon that good or resource41 in any way the holder sees fit, in accord with an individual’s chosen life project. The authority, “…like a sovereign’s, [is] supreme[]”,42 meaning that a “person is entirely free to do what he will with his own, whether by way of use, abuse, or transfer”,43 and may “defend any use or exercise of power by pointing out that, as owner, he was at liberty to suit himself.”44 Still, choice does not occur in a vacuum. Rather, it takes place within the context of relationship. To the extent that neoliberalism extols the virtues of the atomistic individual, it ignores this simple social reality, that we live in a world of myriad social relationships which themselves instantiate private

accounts of the liberal conception of private property see Waldron, Private Property; ­Stephen R Munzer, A Theory of Property (Cambridge: Cambridge University Press, 1990). 36 Private property is “…that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”: William Blackstone, Commentaries on the Laws of England: Volume II (Chicago: Chicago University Press, 1979 [1766]), 2. 37 Radin, Reinterpreting Property, 121–3; Thomas W Merrill, “Property and the Right to Exclude,” Nebraska Law Review 77 (1998): 730. 38 Joseph William Singer, “Property and Social Relations: From Title to Entitlement,” in Property and Values: Alternatives to Public and Private Ownership, eds. Charles Geisler and Gail Daneker (Washington: Island Press, 2000), 3, 8–10. 39 C Edwin Baker, “Property and its Relation to Constitutionally Protected Liberty,” U ­ niversity of Pennsylvania Law Review 134 (1986): 741, 742–3. 40 Larissa Katz, “Exclusion and Exclusivity in Property Law,” University of Toronto Law ­Journal 58 (2008): 275, 290. 41 David Lametti, “The Concept of Property: Relations Through Objects of Social Wealth,” University of Toronto Law Journal 53 (2003): 325, 346. 42 Katz, “Exclusion and Exclusivity,” 295. 43 JW Harris, Property and Justice (Oxford: Oxford University Press, 1996), 29. 44 Ibid., 31.

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property.45 Look again at the liberal bundle of rights. The right to use secures choice about any use or non-use, and exercising that choice means that some will lose out in making use of that thing. In the same way, the right to exclude involves the ability to choose who to exclude and who not to exclude. And the right to alienability, the choice about any disposition of the thing. When choice occurs within relationship, it becomes obvious that there will be consequences for others of any given choice. A choice which affects only the person who made it is self-regarding. One which is not ­creates “externalities” which, more often than not, are negative in their effect on others.46 Every right therefore carries with it an obligation and, as such, in private property, the law that brings individuals into relationship through the conferral of rights on some also imposes duties or obligations on others. Every private property right held by an individual or corporation has a counterpart, an individual or a corporation, who either has a different type of private property or who does not have private property at all.47 No right is absolute.48 Every right must give way in the face of other such rights, or in the face of the community and its rights. A right, in other words, can mean nothing without correlative obligation.49 Indeed, it is because human interaction—relationship—produces externalities that the law is necessary to police the choice which, for present purposes, we have called property. Every legal system anticipates externalities through regulation in an attempt to mediate the ­consequences which may flow the choices taken by those who hold private property.50 This may be the

45

See Amnon Lehavi, “How Property Can Create, Maintain, or Destroy Community,” ­ heoretical Inquiries in Law 10, no. 1 (2008): 8. T 46 Joseph William Singer, “How Property Norms Construct the Externalities of Ownership,” in Property and Community, eds. Gregory S Alexander and Eduardo M Pealver (Cambridge: Cambridge University Press, 2010), 57, 59. 47 The notion of rights and corresponding duties/obligations was captured in the “jural opposites” of Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 16; Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26 (1917): 210; Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in J­ udicial Reasoning (New Haven: Yale University Press, 1919). 48 Radin, Reinterpreting Property, 123. 49 See Joseph William Singer, No Freedom Without Regulation: The Hidden Lessons of the S­ ubprime Crisis (New Haven: Yale University Press, 2015); John Gardner, From Personal Life to Private Law (Oxford: Oxford University Press, 2018). 50 See Singer, No Freedom; Gardner, From Personal Life.

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very essence of property:51 the unfettered choice of the individual mediated against the collective good of society.52 Of this matrix, Joseph ­William Singer writes: …property owners and the public are linked to each other through individual actions [choices] and laws affecting the use of property (which can…be both beneficial and detrimental). From this perspective, we could conceive of property as a type of ecosystem, with every private action and legislative mandate potentially affecting the interests of other organisms.53 This is an entirely “…different concept of individual well-being and autonomy: one that recognises the individual’s need for freedom as well as the need for the development and expression of that freedom in the context of relatedness to others.”54 Still, within that regulation, the liberal individual must exercise choice. In the absence of the state taking action through regulation, how should the individual choose? Before we turn to that, we must take a brief excursus to ask: Why does it matter how we choose? 2.3 Climate Change I suggest elsewhere that climate change is a private property problem,55 and by this, I mean that choice found in and instantiated by private property allows for the human agency that produces externalities that drive climate change.56 Through the complex science of climate change, the choices about how to use goods and resources produce the greenhouse gas emissions that drive the greenhouse effect, in turn causing negative consequences for others, 51 52 53 54 55 56

Joseph William Singer, Entitlement: The Paradoxes of Property (New Haven: Yale ­University Press, 2000), 204 (emphasis added). Ibid., 204. Joseph William Singer, “The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations,” Harvard Environmental Law Review 30 (2006): 309, 334, n. 82. Laura S Underkuffler, “On Property: An Essay,” Yale Law Journal 100 (1990): 127, 129. See Paul Babie, “Climate Change and the Concept of Private Property,” in Revelling in the Wilds of Climate Law, ed. Rosemary Lyster (Brisbane: Australian Academic Press, 2010). On the way in which choices produce externalities for the environment, see Nicole G ­Graham & Jessica A Shoemaker, “Property Rights and Power across Rural Landscapes,” in Handbook of Property, Law, and Society, eds. Margaret Davies, Lee Godden, and Nicole Graham (Oxford: Routledge, 2022).

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all humans who make up the global community. Climate change, in short, is the externality that follows from our choice made possible by private property. Jedediah Purdy evocatively suggests that: Climate change threatens to become, fairly literally, the externality that ate the world. The last two hundred years of economic growth have been not just a preference-satisfaction machine but an externality machine, churning out greenhouse gases that cost polluters nothing and disperse through the atmosphere to affect the whole globe.57 Again, we see the relationship, between the global community and the global environment. Without what we know about private property, the link between the human activities and the consequences for the environment and others characterised by climate change is concealed behind the liberal façade of freedom and choice. Climate change, then, provides the example par excellence of the relationship created by choice between all people. The relationship is broader, though, than at first it might appear, for it contains, as I have suggested elsewhere, both “physical-spatial” and “temporal” aspects.58 The former captures the immediate consequences of climate change, which we are already experiencing. The latter, those generations yet to come who will bear the burden of the choices we make now.59 For those generations yet to come, the60 changes will be momentous. China, despite its growing economic power, will have great difficulties as hundreds of millions of Chinese are displaced by rising seas. With the submersion of Florida and coastal cities, the United States may be equally stressed. Other nations will face greater or lesser impacts. Given the global interdependencies, there may be a threat of collapse of economic and social systems.61

57 58 59 60 61

Jedediah Purdy, A Tolerable Anarchy: Rebels, Reactionaries, and the Making of American Freedom (New York: Alfred A Knopf, 2009), 187. See Paul Babie, “Idea, Sovereignty, Eco-colonialism and the Future: Four Reflections on Private Property and Climate Change,” Griffith Law Review 19, no.3 (2010): 527. David Wallace-Wells, The Uninhabitable Earth: Life After Warming (London: Crown, 2019). Stephen Gardiner, “A Perfect Moral Storm: Climate Change, Intergenerational Ethics, and the Problem of Corruption,” in Political Theory and Global C ­ limate Change, ed. Steve Vanderheiden (Boston: MIT Press, 2008), 32–5. James Hansen, Storms of My Grandchildren: The Truth about the Coming Climate ­Catastrophe and Our Last Chance to Save Humanity (London: Bloomsbury 2009) 259.

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This prompts a question: “put…crudely, how much do we care about our own welfare (read, “consumption”) rather than the welfare of others (read, “foregone consumption”).”62 Either way, a choice is being made about how to use goods and resources. Those choices bear consequences for others, both today and in the future.63 Climate change, then, shows that private property is part of the framework of choice, mediating between the individual and the community, either enhancing—when choice and obligation are balanced—or destroying the community—when choice is prized at the expense of obligation. But what might an appropriate balance look like? Liberalism accepts a ­multiplicity of options. Each individual must, though, choose, as part of a life project, which of those options has meaning and value. Religion is one of those options. So, we can ask: How should we choose? 3 Religion Religion is often seen as being divisive, gravely so, throughout human history. I concede that point. Still, I want to show something typically overlooked: its tragic and harmful history notwithstanding, religion also contains powerful lessons worked out, over many thousands of years, about how people can both exercise choice over goods and resources while recognising the importance of obligation towards the community.64 Joseph William Singer writes: “Major religions have grappled with the question of what obligations a good person has in the world of commerce, and have suggested ways to make an economic system compatible with the full range of our values.”65 Thus, taking a plural approach to these lessons, I suggest that common ground amongst the religious traditions of the world emerges around obligation. Each tradition offers its own principles for understanding what private property means, and how the choice it confers ought to be exercised within the bounds of obligation towards others. For people of faith, this may be the touchstone of their action, while for those who do not subscribe to any one tradition, or to any

62 63 64 65

Mike Hulme, Why We Disagree about Climate Change: Understanding Controversy, ­Inaction and Opportunity (Cambridge: Cambridge University Press, 2009), 133. Ibid., 135; Hansen, Storms of My Grandchildren, 237–77. This will in many ways follow the argument advanced about the secular use of religious tradition developed by Alain de Botton, Religion for Atheists: A Non-Believer’s Guide to the Uses of Religion (London: Penguin, 2011). Joseph William Singer, The Edges of the Field: Lessons of the Obligations of Ownership (­Boston: Beacon Press, 2000), 41–2.

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tradition at all, it may nonetheless provide guidance. Alain de Botton assures us that we might still: …examine aspects of religious life which contain concepts that c[an] fruitfully be applied to the problems of secular society….burn[ing] off religions’ more dogmatic aspects in order to distil a few aspects of them that c[an] prove timely and consoling to sceptical contemporary minds facing the crises and griefs of finite existence on a troubled planet. [We can] rescue some of what is beautiful, touching and wise from all that no longer seems true.66 More importantly, the teachings of most religions on obligation closely parallel one another, converging on one common theme: through one’s possessions one must act with charity and hospitality, and thus with obligation towards the other, the community. Each teaches, using its own terminology, that ­responsibility and obligation are a part of the larger ideal of charity towards others as regards one’s possessions. Charity tempers the exercise of choice. And if choice causes climate change and environmental harm, in turn carrying consequences for the entire global community, then charity, as found in and taught by religion, offers another lens through which every choice regarding one’s possessions must pass; it offers a means of conditioning choices made in relation to possessions so as to mitigate the causes and consequences of ­climate change for the environment and for people. In short, it offers the opportunity to choose differently. To demonstrate this convergence around obligation, this part touches briefly upon concepts drawn from monotheism (Judaism, Christianity, and Islam) and from two polytheistic faiths (Hinduism and Buddhism). 3.1 Monotheistic 3.1.1 Christianity Unlike liberal theory, with its emphasis on the individual, Christian theology67 separates the concept of the “person” from that of the “individual”.68 According to this view, found in the work of John Zizioulas, the person is possible only

66 67 68

de Botton, Religion for Atheists, 19. John D Zizioulas, Being as Communion: Studies in Personhood and the Church (Crestwood: SVS Press, 1985), 27–65; John D Zizioulas, Communion & Otherness: Further Studies in ­Personhood and the Church (London: T&T Clark, 2006). Douglas H Knight, The Theology of John Zizioulas (Oxford: Routledge, 2007), 1–14.

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within and capable of ontological existence only through relationship.69 The liberal individual is concerned with oneself, while the person is relational, and so concerned with others as a member of community.70 Kallistos Ware adds: it is no coincidence that the Greek word for person, prosopon, should have the literal meaning “face”: each of us is authentically a person only in so far as he or she “faces” others and relates to them in love. Thus [a] key term … is koinonia, which in Greek signifies equally “communion” and “society”.71 For Christianity, relationship is the foundation of both the person and of the community. If the person is relational, then “one person is no person, [and so] freedom is not from the other but … for the other. Freedom thus becomes identical with love.”72 A person can only love if we allow the other to be truly other, and yet remain in relationship with us.73 This in turn opens the person for creativity, allowing the person to be not free from others, but to be free to act for someone or something other than ourselves, for both those who do exist, and those who do not yet exist.74 This Christian view of the person tell us something important about choice. While it remains important to the Christian worldview, because some choices can be harmful, to both the individual and to the community, the person must act so as to enhance, rather than detract from the community. For that reason, Christianity teaches that one ought always to have in mind relationships with others, especially the poor and the oppressed. Christianity often refers to this concern for the other as the stewardship of goods and resources, and while that may be a choice, to avoid or reject it not only harms the community, but also oneself. For that reason, its stewardship becomes obligatory if one is to be truly a person. 3.1.2 Islam Islam, like liberalism, sees property as a bundle of rights. But rather than being a human construct, God is seen to be absolute and eternal owner of all that is 69 Christos Yannaras, The Freedom of Morality (Crestwood: SVS Press, 1984), 22. 70 Zizioulas, Being as Communion, 27–65; Zizioulas, Communion & Otherness. And see ­Yannaras, Freedom of Morality, 13–27. 71 Bishop Kallistos of Diokleia, “Foreword,” in Christos Yannaras, Freedom of Morality, 9, 11. 72 Ibid. 73 Ibid. 74 Ibid., 10.

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and has appointed humanity as a vice-regent and trustee.75 In order to structure that relationship of trustee, Islam recognises that any choice as to the use of a thing must occur against the backdrop of unity and community. Islam subordinates any individual choice exercised in pursuance of rights to the community interest. As it is in Christianity, then, the community constitutes a central concept in Islam, flowing from the most primal statement of monotheism found in that tradition—la illaha illa’Llah, there is no God but God—the divine describing its own reality, which is a basis for understanding tawhid, the unity and uniqueness of God. This unity is manifested in nature, human relationships, social organisations, worship and ritual, and the material dimension of the religion. The human community replicates tawhid, in groups of people—tribes or nations—united not by blood ties, language, culture, food or customs, but by their relationship to God. In concrete terms, Muslims live unity through ritual life, the fullest implementation of which is prayer.76 Tawhid is closely related to the notion of ­community, of umma, in which “ordinary Muslims can look to the wider ­Muslim community and feel that they belong to it even though it is divided into various competing factions …”77 Through tawhid and umma, Muslims place greater emphasis on obligation and the limits that it imposes upon the rights embodied in the concept of property.78 3.1.3 Judaism Consonant with the other two monotheistic faiths, each of which emerges from a Judaic source in the Tanakh (Hebrew Scriptures or Old Testament), while the Jewish tradition grants significant protection to property, obligation takes precedence over choice in balancing the interests of the individual and the community. Leviticus 25:14 contains the law relating to the marketplace: “do not, any of you, oppress your brother or your sister”, which is supplemented in three admonitions found in the Tanakh: tzedakah, gleanings, and jubilee. Tzedekah contains the command to share property with those who have none, which extends to everyone in the community not only as a matter of choice, but also of justice. It is an obligation.79 75 Jamila Hussain, Islam: Its Law and Society (Brisbane: Federation Press, 2nd ed., 2004), 169. 76 Ron Greaves, Aspects of Islam (London: Darton, Longman & Todd, 2005), 34–8. 77 Ibid., 95, and see 75–95. 78 Hussain, Islam, 170. 79 Singer, Edges of the Field, 46–8. See also Meir Tamari, With All Your Possessions: Jewish Ethics and Economic Life (Lanham: Jason Aronson, 1998), 242–306.

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And from tzedakah flows gleanings and jubilee, both products of the agricultural origins of the Jewish tradition. The former involved leaving harvested sheaves in the field or planting to the very edge of field and leaving that area unharvested so as to provide for those in need.80 The latter requires the land to be left fallow at certain times—every seven years, which is called Sabbath, and in the fiftieth year following seven Sabbath cycles of years. This provides not only for the land itself, but also for those in need, for in Sabbath years what is grown provides for all, and in the jubilee year debt is renounced and land redistributed.81 In sum, the Jewish tradition treats obligation as a matter of justice owed by the individual to the community. 3.2 Polytheistic As with the monotheistic traditions, many polytheistic traditions also concern themselves with community and obligation, which in turn carries implications for the way in which people ought to approach possessions.82 Here I focus briefly on two of those traditions: Hinduism and Buddhism. 3.2.1 Hinduism A body of texts known as the Dharmaśāstra form the core of Hindu legal tradition.83 While the texts themselves are numerous, at their heart one finds dharma; a complex concept, for present purposes, what matters most is that the dharma contains “privilege, duty, and obligation rather than rights and uniform principles” and “is linked to and varies according to one’s m ­ embership in particular communities.”84 In short, the dharma is a “complex web of p ­ rivileges, duties, and obligations”85 that provides a concrete model of positive behaviour owed by the individual toward the wider community.86 This is the core of law in the Hindu tradition, which, unlike liberalism, begins with the community as paramount to the person. According to Hinduism, the social person is divided or fractured among a multiplicity of dharmas that fragment according to differing yet distinct roles. These distinct roles, divisions, or relationships, include svatva, or property, 80 Singer, Edges of the Field, 49–50. 81 Ibid., 50–1. 82 See, e.g., Norman P Ho, “A Confucian Theory of Property,” Tsinghua China Law Review 9, no. 1 (2016): 1. 83 Donald R Davis, Jr., The Spirit of Hindu Law (Cambridge: Cambridge University Press, 2010), 12–13. 84 Ibid., 16. 85 Ibid., 19. 86 Paul Hacker, “Dharma in Hinduism,” Journal of Indian Philosophy 24 (2006): 490.

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which captures the many ways in which we relate to and interact with material objects, and in turn define people socially and legally.87 The Hindu law built around this core understanding of property is complex, but is bound together through the primacy of relationship. Donald Davis writes: The priority of relationships is signalled everywhere in Dharmaśāstra. Household relationships form the core of the much-discussed issues of inheritance, marriage, and adoption. Corporate relationships beyond the family stand behind contracts and gifts. The relationships of households and corporate groups to a rule constitute the basis for taxation and ­largesse.88 And “property is the material manifestation of ethical observance and accomplishment at each social level.”89 In this way, both people and corporate entities (the family, corporations, and the state) hold social existence and have “personalities” through the material things that are said to be part of that “person”.90 Thus, while Hinduism depends upon a sometimes detrimental stratification or hierarchy based upon the fragmentation of social existence—most notably caste and life-stages91—relationship nonetheless resides at the core of the way in which a person relates to things, with property binding people together as a function of ethical practice rather than dividing them through the choice found in liberalism. Rather than rights, it is obligation and duty— ethical ­practice—that ties Hindus to one another. 3.2.2 Buddhism As with the monotheistic traditions, Buddhism, while comprising many different sub-traditions, is fundamentally a religion concerned with relationship. The primary relationship is that between the alleviation of delusion and the alleviation of suffering, called dukkha, which is experienced not only by human beings, but also by all living beings. For Buddhism, this alleviation begins with its critique of the three poisons of greed, ill will, and the delusion of the separate self.92 The liberal

87 Davis, Jr., Hindu Law, 89. 88 Ibid., 103. 89 Ibid. 90 Ibid., 103–104. 91 Ibid., 106–107. 92 Loy and Stanley, “The Buddhadharma and the Planetary Crisis,” 8.

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construction of the separate self inside alienates me from a supposedly external world outside that is different from me. What is special about the Buddhist perspective is its emphasis on the dukkha built into this situation. This feeling of separation is uncomfortable because a delusive, insubstantial self is inherently insecure. In response, we become obsessed with things that (we hope) will give us control over our situation, especially the competition for power, profit, sex, and fame. Ironically, these preoccupations usually reinforce our problematic sense of separation.93 As a counter to these poisons, and to overcome the disconnectedness from other people and from the Earth itself, Buddhism concentrates on impermanence, interdependence, and non-self.94 As such, the Buddhist solution is not to get rid of the self, which cannot be done sincere there is no inherently existing self. As Thich Nhat Hanh puts it, We are here to awaken from the illusion of our separateness. When I realize that “I” am what the whole world is doing, right here and now, then taking care of “others” becomes as natural and spontaneous as taking care of my own leg. This it the vital link between wisdom and compassion. My own well-being cannot be distinguished from the well-being of others.95 Buddhism thus draws a distinction from individual and collective karma (the sum of a person’s actions, in this and in past existences, and which may determine the future existence of that person).96 There can be no truly individual karma because of the Anatman, or non self, and which posits that the “[t]rue “Self” is the whole interconnected web of phenomena…an intricate weave of connected interstices, each particular point of which completely reflects the totality of the vast network of being.”97 Karma cannot be individual because our actions and intentions connect us to the whole environment.98 Again, as we have seen with the monotheistic traditions, individual actions, choices, or 93 Ibid., 9. 94 Ibid. 95 Ibid. 96 See James B. McEnteer & Arthur W. Campbell, “Zen & Law: An Interview of Art Campbell, Art Campbell’s Non-Blawg (2014): https://trudar.com/?page_id=147. 97 Taigen Dan Leighton, “Now the Whole Planet Has Its Head on Fire,” in A Buddhist Response to the Climate Emergency, eds. John Stanley, David R Loy, and Gyurme Dorje (Boston: Wisdom Publications, 2009), 187–193, 188. 98 Ibid., 189.

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karma, occurs in a web of relationship, and so those actions must be taken with that reality, the collective karma, in mind. Taken together, a person’s actions occur within what is called Bodhisattva practice—vows taken “to save beings from suffering, reaching out, warm hand to warm hand. We live this vow by following the Bodhisattva’s moral precepts of thought speech, and action—no killing, lying, intoxication, and so on. These are precepts of relationship, of giving and receiving.”99 Hozan Alan Senauke suggests that six of these practices are necessary for healing the world: (i) not living at the expense of other beings; (ii) taking complete responsibility in our actions for the whole world; (iii) understanding, or “not knowing”, never being complete, involves acceptance which in turn spurs one to continue to learn; (iv) acting mindfully and correctly; (v) personal sacrifice, so as to think globally and act locally, as well as to think locally and act globally; and (vi) accepting that life and everything in it is a free gift, and so we must make of it a gift to all other beings and to the Earth.100 Will our Bodhisattva practice change the world? We cannot know, but a fundamental Buddhist principle tells us that “the world is what you make it.”101 4

Some Implications of Religion for Choice

Liberalism, and its vehicle for making use of things—private property—­ confers choice. But how to exercise it? The question presses upon us, for our contemporary world confronts us with innumerable choices. In 1997, Dolly the Sheep was cloned, opening up the possibility of genetic engineering,102 the cloning of animals and perhaps even of humans.103 Surveillance capitalism abounds.104 Driverless cars are a reality.105 Space exploration, of the Moon, 99 100 101 102 103 104 105

Hozan Alan Senauke, “The World is What You Make It: A Zen View of Global Responsibility,” in A Buddhist Response, eds. Stanley, Loy, and Dorje, 209–215, 213. Leighton, “Now the Whole Planet Has Its Head on Fire,” 188; Senauke, “The World is What You Make It,” 214–5. Senauke, “The World is What You Make It,” 215. Roberta M Berry, The Ethics of Genetic Engineering (Oxford: Routledge, 2010). John Loike, “Have the Ethical Questions Surrounding Cloning Changed Since Dolly?”, ­Scientific American, July 5, 2016, https://blogs.scientificamerican.com/guest-blog/have -the-ethical-questions-surrounding-cloning-changed-since-dolly/. Shoshana Zuboff, The Age of Surveillance Capitalism: Fight for a Human Future at the New Frontier of Power (London: Profile Books, 2019). Jo-Ann Pattinson, Haibo Chen & Subhajit Basu, “Legal Issues in Automated Vehicles: Critically Considering the Potential Role of Consent and Interactive Digital Interfaces,” Humanities and Social Sciences Communications 7 (2020): 153.

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Mars, and beyond, beckons.106 No longer the realm of science fiction, humans and artificial intelligence may soon be integrated to form new hybrid forms of life. James Lovelock, author of the Gaia hypothesis,107 says that in all of this choice our reign as sole understanders of the cosmos is rapidly coming to an end…. This revolution that has just begun may be understood as a continuation of the process whereby the Earth nurtures the understanders, the beings that will lead the cosmos to self-knowledge. What is revolutionary about this moment is that the understanders of the future will not be humans but what I choose to call “cyborgs” that will have designed and built themselves from the artificial intelligence systems we have already constructed. These will soon become thousands then millions of times more intelligent than us.108 This, Lovelock writes, is the dawning of the Novacene era. All of this confronts us with choice about the use of things, which is really choice about how we want to live. Some of these choices will be individual, some collective. ­Liberalism, as I have suggested, may give some guidance, but we will need as much guidance as we can find. Religion, and its focus, found in most major ­traditions—both monotheistic and polytheistic—on community and obligation above the i­ ndividual, while no panacea, provides some guidance. And that ought to be welcome, with the coming Novacene, the post-secular age now upon us. So, how will we choose? Let me venture an answer, albeit pessimistic. As I write, Canadian truck drivers have blockaded the national capital of Ottawa and the major US-Canada land border crossings. Similar “trucker convoys” have been organised in major cities around the world. These “protests” target the responses of governments to COVID-19—a public health crisis that pits the individual’s liberty to be free from state-sanctioned approaches to treating the problem against the protection of the collective, the community, and the state’s obligation to protect all citizens—largely mask and vaccine mandates.109 106 “Space”, NewPhilosopher, February 25, 2021, https://www.newphilosopher.com/articles /np31/. 107 James Lovelock, The Ages of Gaia: A Biography of Our Living Earth (New York W.W. Norton & Co., 1995). 108 James Lovelock with Brian Appleyard, Novacene: The Coming Age of Hyperintelligence (London: Penguin: 2019), 29. 109 Azi Paybarah, “Trucker Protests in Canada: What You Need to Know,” New York Times, ­February 12, 2022, https://www.nytimes.com/article/canada-trucker-protests.html.

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In response, the Canadian government invoked the provisions of the Emergencies Act,110 which allows for the suspension of civil rights of protestors in order to address the disruptions created for modern liberal/neoliberal life.111 The United States, too, faces vitriolic disagreement about the response to COVID-19, with its Supreme Court recently joining the debate to block a federal vaccine-or-testing mandate for large employers.112 The COVID-19 pandemic is a dress rehearsal for the responses to and modifications of individual liberty that must form part of our collective attitude towards the environment and climate change. The choices inherent in those responses involve balancing competing individual and collective interests. Several Supreme Court justices suggested during oral argument in the US vaccine mandate cases that the question is “who decides?”,113 by which they meant, should the government (community) or the individual decide the best response? I suggest that the real question is how do we decide? And that is where religion might enter, allowing those of differing traditions to place obligation to the community ahead of personal self-interest. Yet, the protests against the community response in Canada, the US, and, increasingly globally gives one little hope that the choices made—no matter the guidance that is used—will be ones that will produce any overall benefit for the environment and, ultimately, for humanity, now and still to come. Bibliography Babie, Paul. “Choices that Matter: Three Propositions on the Individual, Private ­Property and Anthropogenic Climate Change.” Colorado Journal of International Environmental Law and Policy 22, no. 3 (2011): 323. Babie, Paul. “Climate Change and the Concept of Private Property.” In Revelling in the Wilds of Climate Law, edited by Rosemary Lyster. Brisbane: Australian Academic Press, 2010. Babie, Paul. “Idea, Sovereignty, Eco-colonialism and the Future: Four Reflections on Private Property and Climate Change.” Griffith Law Review 19, no.3 (2010): 527. 110 111 112 113

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Index African Charter on Human and Peoples’ Rights 79, 84, 172 Aggregation theory 213, 216, 217 Ahl al-Kitab (people of the book) 37, 38, 47 Ambedkar 32 American Convention on Human Rights 79, 84, 172 Anglican 65, 136, 193 Anglican Archbishop of Sydney 132, 136 Antidiscrimination laws 128, 129, 142 Antisemitism 91, 169, 178, 185 Apostasy 5, 9, 51, 102, 104, 108–112, 114, 117, 118 Artistic expression 264, 270 Australia freedom of belief 123, 124, 130, 131, 137, 140, 142, 143 law 128 politicians 10, 124, 127, 130–132, 138, 141 religion in 10, 123–143 religious freedom 123–143 religious diversity 128, 131 secularism 134, 135, 138, 139 Balancing ECHR rights 13, 260, 263, 270, 273, 275 Barth 107 Bhagavad Gita 20, 21, 45 Bhajan 16, 17, 23, 25, 26, 29, 31–33 Bhakti 7, 16–28, 32–34 Biko Agozino 182 Blasphemy 13, 109, 111, 174, 195, 257, 259, 274 Buddhism 13, 22, 24, 64, 128, 284, 295–297 Burwell v. Hobby Lobby 223 Business corporation 12, 210–212, 215, 221–225, 227, 230 Caricature of religion 105 Caste 17, 19, 21–23, 25–27, 33, 296 Catholic(s) 10, 60, 65, 71, 128, 132, 135, 136, 141, 147, 158, 159, 165, 193, 195, 196, 198, 201, 204, 206, 241, 261, 262, 267, 268 Catholic Archbishop of Sydney 132 Change of faith and apostasy 108

Choice 7, 13, 14, 59, 62, 65, 81, 82, 89, 150, 163, 164, 178, 193, 202, 222, 250, 253, 280–294, 296–300 Christianity Christian privilege 10, 124, 142, 143 Christian right 123, 124, 130, 141 Christian(s) 8, 10, 11, 13, 20, 23, 24, 26, 29, 31, 36–44, 46, 48, 51, 52, 57–75, 113, 115, 118, 123–130, 133, 134–143, 147, 151, 156, 165, 169, 180, 182, 185, 195–197, 235, 241, 242, 244–249, 251, 252, 280, 282, 292, 293 Christians (Nashrani) 49 Socially conservative Christians 10, 147 Church Church autonomy 11, 192, 193, 196, 198–207 Church of the Flying Spaghetti Monster 102–105, 114, 115 Cicero 107 Climate change 13, 280, 281, 284, 289–292, 300 Colonial 69, 169, 182–184 Communities 8, 9, 17, 24–27, 33, 36, 38–40, 43, 45, 48–50, 53, 54, 59, 66, 69, 75, 80, 82, 85, 86, 89, 91, 94, 97, 98, 110, 124, 126, 128, 130, 132, 141, 142, 168, 271, 295 Composite culture 30 Concessionary theory 214–217 Conscience 4–7, 59, 60, 62, 66, 68, 71, 74, 75, 79–85, 89, 90, 96, 98, 101–103, 105, 108–117, 124, 132–134, 136, 154, 155, 158, 171, 196, 237, 239, 240, 247–249, 253, 262, 263, 271, 272 Conscientious objection 12, 88, 90, 237, 240, 247, 248, 252, 253 Corporate image 238, 252 Corporate social responsibility (CSR) 211, 215, 216, 226, 229 Corporation 12, 210–218, 221–230, 280, 288, 296 Covid exemptions 158–160, 196, 299, 300 Cross 183, 235, 241, 242, 263, 266

308 Davies, Glenn N. 136, 137 De Wilde v. the Netherlands 9, 103, 104, 106, 110, 116–118 Debate speech 266, 269 Dialogue 36, 45, 47, 52, 54, 71–74, 170, 186, 187 Discourse of religious freedom 10, 123, 131, 139, 141, 143 Discrimination direct discrimination 249, 251 religious discrimination 10, 126, 129–131, 136–139, 141, 147–149, 156, 161, 196, 201, 235, 240, 243, 246, 248, 251, 252 LGBTQ+ discrimination 129–131, 138, 143 discrimination law 237, 245 Religious Discrimination Bill 129, 130, 139, 141 Diversity 6, 8, 10, 18, 19, 22, 24, 31, 36, 51, 53, 57, 58, 61–66, 67, 70–74, 82, 87, 90, 117, 124, 128, 131, 142, 175, 186, 187, 195, 196, 211, 227–230 ECHR Article 9 5, 6, 102, 103, 110, 113, 117, 179, 251, 262 ECHR Article 10 179, 240 Employment Division v. Smith 148, 152, 220 Environment 13, 58, 64, 250, 280–282, 284, 289, 290, 292, 297, 300 Establishment 61, 62, 66, 67, 70–72, 149, 194, 195, 218, 225 Establishment Clause 67, 129, 161, 163, 201, 219 Ethics 8, 36, 48, 49, 54, 184, 237 European Convention on Human Rights (ECHR) 4–6, 9, 13, 79, 84, 101–103, 106, 108–118, 171, 179, 180, 237, 239, 240, 251, 257, 260–264, 268, 270, 271, 273, 274 European Court of Human Rights 6, 13, 85, 86, 89, 93, 95, 101, 103, 106, 112, 179, 196, 235, 237, 250, 257–259 Evangelical 66, 67, 147, 194, 198, 204, 205 Eweida and Others v. the United Kingdom 106, 113, 237, 249 Exclusivism 36, 46, 73 Faith (belief) 5, 9, 13, 37, 39–44, 47–49, 53, 58–60, 62, 66, 67, 69–73, 75, 79, 85, 86, 89, 92, 96, 98, 102, 104, 106, 108–112, 115–117, 124–126, 133, 134, 136–139, 142,

Index 143, 160–162, 164, 174, 180, 185, 193, 196, 201, 202, 222, 227, 229, 235, 243, 244, 258, 259, 268, 271, 273, 282, 285, 291 First Amendment 10, 133, 147, 161, 195, 197, 201, 202, 204, 212, 213, 215, 217, 218, 220–223, 225, 226, 230 Fisher, Anthony 10, 132–134, 137, 141 Folau, Israel 135, 136, 138 Forum externum 92, 113, 180 Forum internum 89, 92, 113 Free exercise 75, 151, 162, 165, 192, 194–197, 204–206, 218, 219, 224, 225 Free Exercise Clause 10, 67, 147, 148, 150, 152, 153, 158, 160, 161, 164, 217, 219–223, 225 Freedom Freedom from Coercion 88, 90 Freedom of Conscience 79, 84, 89, 90, 108, 124, 133 Freedom of expression 13, 14, 105, 117, 169, 173, 174, 177–181, 240, 257–261, 263, 264, 271, 273–275 Freedom of religion 3–6, 9, 14, 51, 79, 80, 82–89, 92–99, 101–103, 105, 107–109, 111, 113, 115, 116, 123, 132, 153, 170, 171, 180, 183, 262, 264, 274, 276 Freedom of Religion or Belief (FoRB) 88, 170–172, 183, 261–262, 276 French Declaration of the Rights of Man and of Citizens 3 Freud 107 Fundamental rights 3–5, 83, 92, 95, 171, 197 funding 10, 95, 147, 148, 150, 160–165 Gandhi 7, 16, 17, 31–33 Geertz 107 Gender 10, 17, 19, 22, 23, 25, 27, 28, 91, 98, 108, 123, 124, 127, 129, 130, 137, 141 General Comment 22 81, 83, 90, 91 General incorporation 213 Ghanea, Nazila 82, 85, 86, 88, 91–93, 97, 98, 181 God 22, 29, 36–53, 58–61, 63, 67, 69, 71–74, 110, 117, 155, 210, 218, 222, 236, 244, 250, 252, 257, 259, 261, 283, 284, 293, 294 Gratuitously offensive remarks 264 Hadith 37–41, 46, 53 Hajj 244

Index  Harassment 89, 123, 127, 130, 131, 142, 237–239, 249, 251 Harm to third parties 92 Hate speech 92 Headscarf 104, 106, 243 Health and safety 238, 242, 252 Hereafter 26, 40, 43, 46, 47, 52, 53 Hinduism 7, 13, 14, 20, 22, 23, 29, 68, 128, 284, 295, 296 Holocaust 73, 153, 171, 179, 186, 267 Holocaust denial 178 Hostility 11, 12, 81, 87, 91, 152–158, 168, 173, 174, 177, 183, 235, 252, 265, 274 Human rights 3–6, 9, 13, 51, 68, 79–87, 89–91, 93–95, 98, 101–103, 106, 108, 109, 111, 112, 116, 117, 123, 127–129, 141, 143, 170–177, 179–181, 186, 196, 235, 237, 239, 250, 257–260, 265, 266, 273–275 Human Rights Committee 9, 81, 83, 90, 93, 174, 175 Hume 107 Incitement 87, 91, 173, 174, 177–179, 181, 186, 258, 265, 268, 274, 275 Inciting religious hatred 271 Inclusivism 36, 46, 53, 73 Indirect discrimination 239, 245, 246, 249 International Covenant on Civil and Political Rights (ICCPR) 80–83, 85, 89, 90, 92–95, 97, 168, 171, 173–181 Interreligious exchange 8, 33 Islam 8, 13, 14, 24, 25, 29, 36, 39–40, 42, 45, 47, 48, 50, 51, 53, 61, 91, 110, 128, 185, 266, 269, 272, 274, 283, 284, 293, 294 Islamophobia 91, 141, 169, 178 Jellinek, Georg 3 Jews (Yahud) 38–43, 49, 50, 52, 53, 58, 71, 73, 126, 169, 179, 193, 195, 244 John Dewey 215 Judaism/Jewish 13, 14, 39, 42, 46, 48, 51, 58, 61, 62, 70, 73, 110, 124, 130, 136, 141, 142, 185, 244, 283, 284, 294, 295 Jumuʿah 244, 246 Kant 107 Kelly, Paul 134, 135 Khalsa 241 Kokkinakis case 109, 111, 114, 118

309 Kufr (disbelief or ingratitude to God) 36, 38, 39, 47 Latham, Mark 125–127, 129, 141 Laws religious freedom laws 128, 152 same–sex marriage laws 134 religious discrimination laws 129–131 LGBTQ(+) people Rights 129, 134, 135, 138 discrimination against 130, 131, 227 Liberalism 13, 14, 65, 217, 228, 229, 280–286, 291, 293, 295, 296, 298, 299 Liberty 3, 12, 57, 59, 60, 62–64, 66–72, 74, 75, 79, 83, 88, 97, 132, 139, 172, 173, 193–195, 210, 211, 215, 218, 221, 222, 229, 230, 265, 281, 285, 287, 299, 300 Lipstadt, Deborah 186 Majus (Magian, Zoroastrian) 40, 41, 53 Margin of appreciation 93, 249, 262–264, 266–269, 273, 276 Marriage marriage equality 129, 131–134, 137 same-sex marriage 131, 133–138, 140, 151, 155–157 Media media and religious freedom 8, 10, 12, 123 media commentators 124, 130–132, 229, 230 Minority religions 10, 80, 97, 123, 130, 236, 259 minority religious groups 123, 130, 131, 138, 141–143 Mission 8, 26, 68–70, 72, 74, 88, 153, 229, 237 Morrison, Scott 129, 130, 132, 137–139, 143 Muhammad 22, 29, 37–43, 45–50, 52, 53, 103, 181, 269, 272–274 Multivocality 20, 25, 28 Muslim(s) 8, 10, 17, 22, 23, 25, 27–32, 36–54, 61, 62, 64, 69, 71, 124, 126, 128, 130, 135, 136, 147, 169, 185, 195, 241, 243–245, 247, 251, 266, 273, 275, 294 Mutatis mutandis 109 Neutrality 113, 148, 149, 152–154, 158, 160, 163 Nexus of contracts 214, 217 Niqab 242, 243

310 Non-Muslim 8, 36–40, 42, 46–54, 63 Nostra Aetate 71, 73 Overlapping freedoms 108 Pastafarianism 9, 101–106, 110, 112, 115, 117, 118 Persecution 60, 61, 65, 66, 75, 126, 197 Philosophical belief 105 Places of worship 10, 93, 133, 141 Pluralism 3, 6–10, 13, 14, 17–19, 36, 37, 42, 44–48, 52–54, 57, 62, 69, 73–74, 81, 82, 87, 94, 96, 101, 112, 124, 140, 211, 227–230, 265, 28 Politics 40, 92, 123, 124, 131, 132, 139, 140, 142, 212, 213, 217, 229, 258 Porteous, Julian 135 Private Property 13, 211, 213, 217, 280, 281, 283–291, 298 Proportionality 264, 267, 268 Proselytism 12, 98, 111, 114, 114, 115, 250, 251, 253 Protection of religious feelings 271 Protection of religious sensibilities 259 Protestant 65, 72, 141, 182, 184, 193–195, 206 Public accommodation laws 151 Puranas 21, 22, 30 Quasi-legal 11, 168, 170, 187 Qur’an, Quran 185, 242, 244 Real entity theory 213, 214, 216–218 Reformation 8, 61, 62, 64–66, 68–70, 193, 195 Regulation 12, 85, 90, 94, 95, 105, 168, 169, 185–187, 210, 219, 235, 238, 240, 248, 288, 289 Relationship and Political Theory 13 Religion 3–10, 12–14, 17–22, 24, 28, 29, 32, 34, 36–48, 50, 51, 53, 54, 57–62, 64–75, 79–99, 101–118, 123–135, 137–140, 142, 143, 147–149, 152–154, 156–161, 163, 166, 168–172, 174–187, 194, 195, 197, 198, 201–203, 206, 210, 217–220, 222–229, 235–239, 245, 246, 248–253, 257–259, 262–265, 268, 269, 271, 272, 274–276, 280–284, 291, 292, 294, 296, 298–300 Religious conflict 18, 65, 67, 195 Religious discrimination 10, 126, 129–131, 136–139, 141, 147–149, 156, 161, 196, 201, 235, 240, 243, 246, 248, 251, 252

Index Religious dress 12, 141, 236–238, 241, 252 Religious exemptions 148 Religious freedom 3, 5, 7, 8, 10–13, 36, 50, 51, 57–61, 64, 66–69, 71, 74, 79–82, 92, 97, 98, 102, 105, 111, 117, 123–143, 147, 152, 168, 179, 196, 197, 202, 210, 220, 221, 223, 230, 237 threat to 126, 132, 134, 135, 137, 138, 140 Religious Freedom Restoration Act (RFRA) 152, 220, 221, 223–225, 230 Religious group autonomy 11, 192 Religious harmony 7, 16, 18, 19, 181 Religious hatred 11, 83, 87, 168–170, 172, 173, 175, 177, 180–187, 268, 271, 274, 275 Religious liberty 3, 12, 57, 59, 60, 62, 64, 66–72, 74, 75, 79, 132, 193–195, 211, 215, 218, 221, 222, 229, 230 Religious manifestation 12, 13, 241, 249 Religious minorities 10, 11, 62, 81, 118, 124, 147, 148, 159, 161–166 Religious obligation 12, 236, 241, 243, 245–247, 250, 252, 284 religious schools 10, 67, 96, 129, 130, 133, 139, 147, 150, 160–165, 198 Religious speech 12, 237, 249, 250, 252, 253 Religious symbols 10, 94, 141, 236, 241, 253 Religiously expressive business corporation 12, 210, 211, 226, 229 Rida, Muhammad Rashid 41, 42, 50, 51 Rig Veda 20 Right to freedom of expression 13, 178, 179, 259–261, 263, 264, 273–275 Right to freedom of religion and belief 5, 84, 87, 170, 180, 262, 264 Rousseau, Jean-Jacques 3 Ruffini, Francesco 3 Sabbath 195, 244, 295 Sabeans 40, 41 Saint-poets 7, 19, 23–27, 31–33 Salah 244, 245 Salvation 8, 36, 37, 40–47, 53, 67, 69, 70, 72, 73, 116 Satire 113, 117, 265, 270 Scholars (Muslim scholars) 8, 17, 18, 20, 22, 28–30, 32, 33, 36–54, 68, 102, 110, 116, 117, 181–183, 185, 211, 217, 230, 258, 259 Sect 24, 27, 58, 116, 219 Shanahan, Angela 135, 136

Index  Shirk (associating God with others) 36, 38, 42 Sikh 17, 24, 27, 33, 106, 124, 125, 130, 141, 241 Singapore 175, 180, 181, 187 Songs 7, 16–19, 23–34, 270 Sovereignty 65, 290 Special Rapporteur on Freedom of Religion or Belief 83, 84, 87, 93 State 3–5, 8, 10, 11, 13, 45, 51, 52, 57, 58, 60, 62–70, 80, 86, 89–94, 97, 98, 101, 103, 104, 106, 107, 109–113, 115–117, 124, 125, 129, 133, 134, 136, 141, 147, 149, 150, 152, 158–162, 164, 165, 168, 170, 173, 175, 176, 181, 184, 187, 193–195, 198, 199, 201–203, 206, 212–215, 218–222, 237, 252, 258, 259, 261–264, 266, 267, 271, 275, 281, 282, 286, 289, 299, Stoker, Amanda 132, 139 Sufism 20, 45 Sulayman, Muqatil ibn 39, 40, 50–52 Sunday 240, 244, 246, 260, 264 Tehan, Dan 132, 138, 139 The Australian newspaper 131, 132, 134, 135, 138–140 Theology 13, 36, 45, 46, 63, 71, 73–75, 107, 187, 292 Thomas von Aquino 107 Tolerance 18, 37, 43, 47, 49, 50, 53, 66, 87, 96, 106, 186, 250 Toleration 8, 14, 59–61, 65, 66, 75, 194, 195, 228 Tocqueville, Alexis de 68, 221 Trinity Western University 227 Turban 106, 241 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 81, 93

311 UN International Covenant on Civil and Political Rights 80, 168 UN Universal Declaration of Human Rights (UDHR) 4–6, 9, 79, 82, 92, 98, 99, 102, 171–174, 179 United Kingdom 89, 106, 113, 116, 135, 175, 176, 178, 180, 187, 235, 237, 238, 242, 245, 260, 264–266, 271, 273, 275 United Nations 4–6, 68, 79–84, 86, 87, 91, 93, 95, 101, 109, 168, 171, 173–178, 180, 181, 185 United States 4, 10, 11, 45, 67, 71, 147, 152, 179, 183, 192, 193, 196–199, 201, 202–205, 207, 210–212, 218, 221, 227, 241, 290, 299, 300 United States Constitution 10, 147, 218 United States Supreme Court 11, 147, 152, 196–199, 201–203, 205 unity 14, 20, 28, 30, 44, 45, 52, 53, 59, 65, 82, 89, 172, 294 Universal Declaration of Human Rights 4–6, 9, 79, 82, 92, 98, 99, 102, 171–174, 179 Universality of the freedom 108 Upanishads 20 Values 4, 6, 12, 19, 61, 68, 70–72, 87, 123, 127, 135–138, 142, 215, 216, 222, 226, 228–230, 260, 265, 269, 272, 285–287, 291 Violence 11, 17, 18, 32, 61, 86, 87, 90, 91, 94, 123, 127, 131, 138, 142, 168, 170, 173, 174, 177–179, 183, 265, 274 Virtual space 16, 17 Vouchers 10, 147, 148, 161–165 World Religions Paradigm (WRP) 184 Worship 4–7, 10, 23, 28, 38, 39, 50, 58–60, 68, 80, 81, 83, 85, 92–95, 101, 102, 108, 110, 114, 115, 133, 136, 141, 158, 159, 170, 171, 197, 202, 239, 244, 253, 262, 272, 283, 294

26 mm

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S R S B 16

SECU L A R BELIEFS

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A ND HUM A N R IGHTS

VO L U M E 16

VO L U M E 16

This book brings together a variety of religious and non-religious perspectives on religious pluralism. It explores the key philosophical and legal issues associated with religious freedom and social harmony. Freedom of Religion and Religious Pluralism intends to serve as a valuable resource for scholars specialising in religion, citizenship, and migration studies. It will also act as a reference for courses on law, religion, and human rights. MD JAHID HOSSAIN BHUIYAN, Ph.D., The University of Queensland, Australia, is currently a Humboldt research fellow at the Max Planck Institute for Comparative Public Law and International Law, Germany. He is the co-editor of Religious Freedom in the Secular States: A 21st Century Perspective (Brill, 2022). CARLA M. ZOETHOUT is professor of Constitutional law, Open University, the Netherlands and associate professor at the University of Amsterdam. Recent publications appeared in Md Jahid Hossain Bhuiyan and Darryn Jensen (eds), Law and Religion in the Liberal State (2020) and in Archiv für Rechts- un Sozial Philosophie (2020).

Freedom of Religion and Religious Pluralism

SECU L A R BELIEFS

Religious pluralism is an important aspiration of contemporary societies, meaning that religious diversity is permitted and everyone has the freedom of religion or belief, or not to believe. The peaceful coexistence of people of a myriad of faiths is indispensable for securing peace in the modern era of political upheaval and economic dissonance.

MD JA HID HOSSA IN BHU I YA N & C A R L A M. ZOET HOU T (EDS.)

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Freedom of Religion and Religious Pluralism EDI T ED BY MD JA HID HOSSA IN BHU I YA N & C A R L A M. ZOET HOU T