Human Rights and the Separation of State and Religion: International Case Studies (Religion and Human Rights, 10) 3031339975, 9783031339974

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Religion and Human Rights 10

Francis-Vincent Anthony Hans-Georg Ziebertz  Editors

Human Rights and the Separation of State and Religion International Case Studies

Religion and Human Rights Volume 10

Series Editors Hans-Georg Ziebertz Würzburg, Germany

, University of Würzburg

Carl Sterkens, Radboud University Nijmegen, The Netherlands

To the extent that modern societies are characterised by centrifugal forces like pluralization of norms, economic globalization, nationalism, political populism and claims of regional autonomy, the question of how to hold this society together becomes increasingly important. Democratic institutions proof to be vulnerable in such context. Even the possibility and desirability of democracy as it developed in Western countries after the Second World War is being questioned. Societal cohesion can no longer be achieved through shared religious beliefs, and common values seem to be scarce. Human rights are regarded as an important instrument to guarantee freedom and equality of citizens. This series investigates how religion can both challenge and contribute to a democratic society shaped by the culture of human rights in different national and cross-national contexts. Volumes address these questions by means of a theoretical, empirical and comparative approach.

Francis-Vincent Anthony • Hans-Georg Ziebertz Editors

Human Rights and the Separation of State and Religion International Case Studies

Editors Francis-Vincent Anthony Faculty of Theology Salesian Pontifical University Rome, Italy

Hans-Georg Ziebertz Faculty of Theology University of Würzburg Würzburg, Germany

ISSN 2510-4306     ISSN 2510-4314 (electronic) Religion and Human Rights ISBN 978-3-031-33997-4    ISBN 978-3-031-33998-1 (eBook) https://doi.org/10.1007/978-3-031-33998-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Dedicated to the memory of Mario Midali (1928–2021) Prof. Emeritus of Practical Theology, Salesian Pontifical University, Rome, Italy Johannes A. van der Ven (1940–2019) Prof. Emeritus of Practical and Empirical Theology, Radboud University, Nijmegen, The Netherlands

Contents

1

 The Religion-State Relation as Problem and Prospect������������������������    1 Francis-Vincent Anthony and Hans-Georg Ziebertz

2

Religious Freedom and the Relationship Between State and Religion��������������������������������������������������������������������   11 Hans-Georg Ziebertz

3

State-Religion Separation in the Multireligious Context of Indian Democracy: An Empirical Study����������������������������   33 Francis-Vincent Anthony

4

Freedom of Religion and German Law Governing the Relationship Between Organised Religion and the State��������������   67 Heinrich de Wall

5

Human Rights and State Funding for Religions in Belgium: On the Road to the Dutch Model?������������������������������������   85 Leni Franken

6

Two Authorities and One Man – A Philosophical-Theological Reflection in the Context of Poland��������������������������������������������������������  111 S. J. Wit Pasierbek

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Tenacious and Elusive: Religion-State Ties in the Greek Educational Domain����������������������������������������������������������  139 Effie Fokas and Marios Koukounaras-Liagkis

8

State-Religion Separation Among Muslims in Turkey: Theory and Empirical Findings��������������������������������������������������������������  159 Üzeyir Ok

9

Understanding of Turkish Secularism in Terms of Freedom of Religion: Example of Compulsory Religious Education in Schools ��������������������������������������������������������������  179 Recep Kaymakcan and İbrahim Aşlamaci vii

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Contents

10 The  Role of Human Rights Education in Moving Towards a State-Rights-Religion Relationship in Place-Space-Time. A Study in the Netherlands and South Africa ��������������������������������������  199 Anne Becker, Janet Jarvis, and Ina ter Avest 11 Democratic  and Inclusive Religious Education in the Secular State – The Case of Sweden��������������������������������������������  217 Olof Franck and Bodil Liljefors Persson 12 Human  Rights and Religion-State Relations, with Reference to Migration in the Mexico-United States Region������  233 Raymond J. Webb 13 The  Right to Life and Cybersecurity in Poland: A Challenging Field for State-­Religion Relations ��������������������������������  247 Piotr Roszak, Sasa Horvat, and Weronika Kudła 14 Human  Rights and the Separation Between State and Religion in Africa: The Case of Ghana������������������������������������������  267 Eric Oduro Wiafe Index������������������������������������������������������������������������������������������������������������������  283

Chapter 1

The Religion-State Relation as Problem and Prospect Francis-Vincent Anthony

and Hans-Georg Ziebertz

In the bygone era of traditional world, religion implicitly or explicitly served as an all-encompassing canopy under which every aspect of social life found its meaning and value. In other words, religion was the source and sustenance of social cohesiveness. With the emergence of the modern, secular and global culture, the myth of ‘religious canopy’ has progressively shrunk to one among the diverse competing sectors of societal life: religious, cultural, artistic, political, juridical, economic and ecological. While secularism has reduced religion to one of the autonomous sectors of public life, in its extreme instance, it can tend to obliterate, emarginate or silence religion into a private limbo. And hence the intricate question: How are we to envisage the rapport between religion and state in the contemporary secular world that upholds human rights as its own conquest (even if religions think otherwise) for regulating the interaction among the autonomous sectors of public life, including that between religion and state? Can the altered situation that seems to undermine religion’s privileged status turn out to be an occasion for redefining its specific critical and prospective function with reference to the state? Can religion have a better function than the one it played in the past, namely, dominating at times the political power, at other times being subservient to it or being hand-in-glove with the empire, state and ruling class? In order to explore the religion-state rapport in the contemporary milieu of human rights, of which religious freedom is a vital one, it is perhaps indispensable to grasp the complex nature of religion itself.

F.-V. Anthony Faculty of Theology, Salesian Pontifical University, Rome, Italy e-mail: [email protected] H.-G. Ziebertz (*) Faculty of Theology, University of Würzburg, Würzburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F.-V. Anthony, H.-G. Ziebertz (eds.), Human Rights and the Separation of State and Religion, Religion and Human Rights 10, https://doi.org/10.1007/978-3-031-33998-1_1

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With the view to examining the rapport between religion and state, J. van der Ven (2010, 356–372) considers the former in a soteriological perspective – taking inspiration from N. Luhmann (1984, 1998, 2002) and J. Habermas (1993) – and specifying it further with the notion of axial religions, drawing particularly on the works of S. Eisenstadt (1986, 2003) and J. Arnason (2005). If regulating the intersection of various autonomous and dynamic domains of contemporary society is an arduous task, it is particularly so with reference to religion. Unlike the binary positive/negative value codes of other systems, such as profit/loss (economic system), powerful/ powerless (political system), legal/illegal (juridical system), competence/incompetence (educational system), true/false (scientific system) and good/evil (moral system), the codes of religion, namely, immanence/transcendence, are not mutually exclusive counter values. Some religions, like Hinduism, can even go to the extent of a non-dual or advaitic view of the immanent and transcendent reality. While transcendent can be experienced and articulated in the immanence, the latter can never exhaust the former. ‘From this paradox of being present and absent at the same time, a critical stance towards the immanent emerges, because from the perspective of the transcendent the immanent is considered contingent, incidental, provisional, limited, finite, non-absolute. From there, all immanent phenomena can be relativized, exposed, criticized’ (van der Ven, 2010, 358). In other words, religions can have not only a stabilizing function but also a critical function vis-à-vis other sectors of society. Moreover, the soteriological (salvific wellbeing) orientation is a characteristic feature of axial religions encompassing ‘a vertical axis pertaining to immanence and transcendence, a horizontal axis pertaining to inclusion and exclusion, and a longitudinal axis pertaining to time and history’ (Ibid. 367). The vertical axis stands for the rapport between the mundane and the extramundane reality, the horizontal axis for that lived out in human reality and the longitudinal axis for its expression in time and space, namely, human history. On the vertical axis, immanence connotes the fundamental contingency of life, as relatively valuable and meaningful, whereas transcendence refers to the real, meaningful, perfect, etc. The horizontal axis is represented by varying boundaries of inclusion and exclusion of participants moving from centre to periphery. The longitudinal axis reflects particularly the passage from oral to written traditions, which in turn calls for contextual interpretation of texts, rather than just literal. In this vein, religious beliefs, experiences and practices become the concrete expressions of the soteriological and eschatological (ultimate/ full flourishing) evolution on the triple axes in a given society. The supportive or critical function that religions can display with reference to human rights that govern the religion-state rapport can be grasped at three different levels of ethical discourse: meta-ethical discourse, normative ethical discourse and legal ethical discourse. While meta-ethical discourse deals with religious or transcendent foundations of human dignity, normative ethical discourse seeks to clarify the criteria for evaluating human action, and legal ethical discourse focuses on social and legal practices (Magni 2011, 43–46). Consequently, the relevance of religions for society can be deliberated at meta-ethical, normative ethical and legal ethical levels.

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As we mentioned, the meta-ethical discourse deals with religious or transcendent foundations of human dignity, and as such, it stands for the religious legitimation of human rights. According to van der Ven et al. (2004, 261–303), religious legitimation or meta-ethical discourse may be viewed from internal (ad intra) and external (ad extra) perspectives. From an internal perspective, religious legitimation can evolve ‘in terms of’ and ‘with the view to’. In the first case, religious traditions can shed light on the meaning and foundation of human rights in terms of metaphors, symbols and theories specific to each. In the second case, religious traditions can nourish and legitimize human rights culture with the view to promoting the latter among the believers. In this vein, the ad extra dimension of religious legitimation would refer to its contribution to the public arena, engaging disciplines such as philosophy, sociology of law and jurisprudence. It could also encompass dialogue with other nonreligious and religious interpretations of human rights. Religious legitimation can then contribute to opinion formation in the civil society, as well as nurture human rights culture and advocacy within the religious community. The normative ethical discourse associated with religious traditions seeks to clarify the criteria for evaluating human action. As there are different normative ethical currents, the criteria for evaluating human action may differ according to currents such as ethics of consequences, deontological ethics and ethics of virtues (Magni, 2011). Religious traditions such as Christianity, Islam and Hinduism have in the course of their history built up a body of normative ethical and moral discourse. The legal ethical discourse associated with religious traditions in its turn concerns the social and legal practices. The religion-state separation would require that the former play its role in the public space in a sort of democratic dialogue with other value systems emerging in the societal sphere. Such a dialogue in its turn can also challenge and transform the religious structures, rather inured to authoritarian discourse and hierarchical organization, to integrate ever more dialogic and democratic forms of shaping the vertical, horizontal and longitudinal axes of functioning and evolving as religion in progress (van der Ven, 2020). Religion can be effective and truer to its natural role, when it ‘plays in the game of further developing human values as a team player on a level playing field with the other players, as a contributor, partner and catalyst’ (Newlands, 2004, 75), for religion ‘exists as a unique strand within the cumulative rational process which contributes to the development of human society’ (Ibid. 88). There is no gainsaying that different religious traditions would differ in their prospects for inner and outer transformation. Having said this, what now awaits the reader in this book? The chapters of this volume will highlight key aspects of the religion/church-state relationship but also areas that may be considered marginal so far but will gain in importance. The contributions make clear that there is no blueprint for the optimal and desirable relationship between religion/church and state. Historically, individual states have such different histories that any current constellation must be seen as a product of societal debates past and present that are usually ongoing and, despite knowledge of other solutions in global terms, always remain the product of a particular society with its own religious and cultural history. Therefore, each country must be analysed

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intra-historically and not only extra-historically, with both perspectives critically complementing each other in the best case. However, a desirable supernational model does not and will not exist. This does not mean that one cannot develop criteria to decide on the quality of a religion/church-state relationship. For example, it makes a difference whether we are talking about the religion/church-state relationship in a country that is very strongly religious and also mono-religious (with one dominant religion), or a country that is very strongly religious but has different religions, or finally a country where a significant proportion of the population is nonreligious. In these three cases alone, there are very different preconditions and interests with regard to the shaping of the religion/church-state relationship; one thinks, for example, of the handling of positive and negative religious freedom. In a strongly religious and mono-religious country, the question of how to deal with religious minorities can arise. If several religions are present, one religion is often identified more strongly with the national culture than others, so that the question is whether and how equality should be practised. In a country with a strong secular culture, there is often a demand to consider religion as a whole as a private association and proximity to the state as a threat. The question of funding for religious communities plays into this mix. Is the state allowed to provide a service for the benefit of religions, or should financing be solely a matter for the religious community? And if the state helps with financing, must it then provide this service for all ideological groups? Another example of the complex relationship between religion/church and state is education. To what extent may the entire field of education be based on religion and to what extent can religion be used as a teaching method? To what extent may the entire field of education rest on a religious basis and should religion be a subject in the classroom? If religion is to be taught as a subject, then the approach to religion must be neutral and objectifying so that the entire class can participate, or should the curriculum be placed in the hands of the religious community, which leads to separation in denominational classes and an extra solution for nonreligious students? A special challenge for the religion/church-state relationship is the enormous global migration movement. There are very different positions here: While some religious communities call for an open attitude towards migrants, other religious communities represent a restrictive-conservative position, while the states also represent different camps. Another special case are activities on the Internet that are massively directed against a religious community. When does the state have to take action and what should it do? One would think that discrimination based on sexual orientation is an issue in which religious communities have no choice but to stand up for the dignity of every human being and to criticize the state when it violates that dignity. However, not all religious communities represent this position, nor do a number of states, which is why the specific design of the religion/church-state relationship can be a question of survival, especially for the LGBTQ+ community. These aspects are analysed and reflected upon in the articles in this volume. Hans-Georg Ziebertz elaborates in his chapter Religious Freedom and the Relationship Between State and Religion (Chap. 2) how in Europe until the eighteenth century (and partly to this day) states were very closely linked to Catholicism,

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Protestantism or Orthodoxy, while the modern constitutional state distances itself from religion by being ideologically neutral but granting the right to religious freedom so that all citizens can practise their religion. European states are hardly mono-­ religious any more, but are characterised by religious plurality and non-religiosity. In this respect, disputes about the scope of positive or negative religious freedom are commonplace. The empirically found models of the religion/church-state relationship are not static, but in a state of flux. The dynamics of change are supported by controversial discourses on the status of religion in a liberal-democratic society, in which primarily representatives of religions, seculars and laicists participate. That makes the discussion a very controversial venture with an open-ended outcome. India is a multireligious state with a Hindu majority. Francis-Vincent Anthony states in his chapter State-Religion Separation in the Multireligious Context of Indian Democracy: An Empirical Study (Chap. 3) that secularism in the Indian context implies that the state should respect all religious traditions present in the society but favour none. In other words, the state should not be opposed to religious communities and their institutions; neither should it promote religious nationalism on the basis of the Hindu majority community to the detriment of minority communities such as the Muslim and the Christian. Anthony has carried out an empirical study among 1215 college students in Tamil Nadu to research the question how young Christians, Muslims and Hindus assess the obligations of the one and the rights of the other in the educational and public spheres and if their religious attitudes and experiences of democracy, besides their personal profile and psychosocial traits, influence their understanding of the state-religion separation. This study leads to a number of relevant findings. Heinrich de Wall presents in the chapter Freedom of Religion and German Law Governing the Relationship Between Organised Religion and the State (Chap. 4) a reflection of the religion/church-state relation in Germany. Since the reformation Catholicism and Protestantism are the two mainline churches in Germany, and they enjoy some privileges. Even if one speaks of a separation of church and state in Germany, there is de facto a very cooperative relationship that affects many areas of society. So far, the relationship between the state and the two major Christian churches has been friendly overall. Around 6 million Muslims now live in Germany, so the question of what relationship the state wants to maintain with Islam is becoming ever more pressing. The law regulating the relationship between organised religion and the state in Germany is closely connected with the freedom of religion as guaranteed in Article 4 of the German Basic Law. Its rules and institutions are meant to concretize and strengthen this fundamental right in favour of religious bodies. The paper analyses this connection in detail including the new challenges of how to incorporate Muslim communities into ‘state-church law’ and how to develop German legal system in the European context. Leni Franken offers a comparative research about the financing of religions in Belgium and the Netherlands. In her chapter Human Rights and State Funding for Religions in Belgium: On the Road to the Dutch Model? (Chap. 5), she shows that according to the European Court of Human Rights (ECtHR), different models of state financing for religion can be in accordance with the European Convention of

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Human Rights (ECHR). The Belgian and Dutch policies concerning financial state support for religions were quite similar for a long time. In 1984, however, the Dutch Government terminated its policy of direct financial support for recognized religions, while the Belgian state still finances recognized religions up until the present day. Based on the idea that the core principle of human rights is not religious freedom, but rather the more general concept of human dignity, Franken argues that the Dutch policy of democratic perfectionism is to be preferred, due to its more open, democratic and inclusive character as well as its handling of the principles of religious freedom, equality, non-discrimination and protection of minority rights, while the Belgian policy keeps the model of constitutionally fixed taxes for religions which can lead to legal conflicts. Wit Pasierbek draws attention to Poland. For many years the Catholic Church in Poland has had a strong position in society and politics, the majority of Poles are still members of the Catholic Church, and a high percentage takes part in religious life. However, religious homogeneity has cracked. In his paper Two Authorities and One Man: A Philosophical-Theological Reflection in the Context of Poland (Chap. 6), Pasierbek will give an answer to the fundamental question of human rights in the conditions of the separation of the Church and the state in Poland and the question about a possibility of symbiotic coexistence of believers and nonbelievers within these two areas. He outlines his understanding of man as a religious-legal-­communal being and the origins of law: the natural law and/or positive law. He specifies the role of human conscience in relation to these laws and the role and place of God and state/secular authority in understanding and observing them. A democratic system attempts to satisfy both transcendental and existential human needs. Although the article focuses on the Catholic community, it also accounts for nonbelievers and believers of other religious traditions. Against this background, Pasierbek analyses the four constitutions of the Republic of Poland (1791, 1921, 1952 and 1997) in order to check to what extent these positive constitutional laws protected the inalienable fundamental human rights (including freedom of conscience and freedom of religion) which lead to the suggestion for a renewed anthropology in the European context and the need of an agreement in the area of law, religion, nature and reason. With Greece, a Christian-Orthodox country is included. The authors Effie Fokas and Marios Koukounaras-Liagkis remember the strong position of the Greek Orthodox Church, which historically had a close relationship with the state. As long as the vast majority of society actively participates in Christian Orthodox culture, neither the close state-church relationship nor the privileges of the church seem to be a problem. When a society becomes more pluralistic and minorities raise their voices, the shaping of religious freedom is on the agenda. In their paper Tenacious and Elusive: Religion-State Ties in the Greek Educational Domain (Chap. 7), the authors analyse the recent case law of the European Court of Human Rights (ECtHR) that has issued several judgements against the state of Greece regarding the privileges enjoyed by the Orthodox Church of Greece vis-à-vis the state and regarding the limitations experienced by minority religions. The authors explore the ECtHR’s engagement with the case of religion in education as a possible exception, one in which the categories of ‘secular’ and ‘religious’ as regards education and

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‘separation’ as regards religion-state relations appear as rather complicated. According to the authors, the ECtHR’s impact is quite contingent on Greek national politics which leads to the conclusion that there are strong limitations of supranational human rights regimes when it comes to state-religion separation in national and subnational contexts. Turkey is a country strongly influenced by Islam. Despite the very high proportion of Muslims in society, there is a growing plurality, not so much through other religious communities, but through the number of people who identify as secular. Therefore, the question becomes virulent as to how plurality can be shaped pluralistically. In the chapter State-Religion Separation Among Muslims in Turkey: Theory and Empirical Findings (Chap. 8), Üzeyir Ok points out that ideological coherence and harmony among members of a pluralist society are fundamental for individuals to feel at peace. For Ok traditional religion has often contradicted secular ideologies and lifestyles, which led to tensions and conflicts. According to Ok it may be expected in modern times that states take not only a neutral position concerning religions, ideologies, worldviews and lifestyles but also support and protect such freedoms. Ok examines the definition of state-religion separation and evaluates inconsistencies in the current applications in the light of this definition in Turkey. He observes that traditional but not open perception of Islam practically, theologically and empirically contradicts the state-religion separation and other civil liberties. For Ok there are psychological bases for some Muslims to be biased regarding state-religion separation. The chapter shows that the misuse of laicite, a version of state-religion separation, polarises public people and may result in fundamentalist reactions to religion or secular system. The following chapter Understanding of Turkish Secularism in Terms of Freedom of Religion: Example of Compulsory Religious Education in Schools (Chap. 9) is also dealing with Turkey and directs attention to the religion-state relationship with regard to school education. The authors Recep Kaymakcan and İbrahim AŞlamici recapitulate the history of Turkey from the eighteenth century since the concept of secularism and the principle of separating religion from state affairs came up. The authors distinguish between the Anglo-Saxon understanding of secularism that prioritises positively religious freedom and the French exclusivist understanding of laïcité that seeks to limit the expression of religion in the public sphere. The authors state that Turkish secularism historically has advocated an exclusivist model suited for the unique circumstances of its society. Though, at least theoretically, embracing the separation of religion and state, the reality was, for the greater part of Turkey’s history, that the state apparatus consistently sought to exert control over religion. Still, while religious services and education are largely provided by the government, autonomous religious organisations and activities are not permitted to function. This study uses the case of compulsory religious education in schools in its endeavour to examine Turkey’s understanding of secularism and how related practices interplay with religious freedom. As example the authors discuss the course known as Religious Culture and Moral Knowledge which is subject to frequent debate, mainly initiated by people with different religious convictions, as well as by

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nonreligious people. It shows the problem of how worldview pluralism challenges the concept of secularity and affects the practice of religious freedom. Anne Becker, Janet Jarvis and Ina ter Avest present a comparative study entitled The Role of Human Rights Education in Moving Towards a State-Rights-Religion Relationship in Place-Space-Time. A Study in the Netherlands and South Africa (Chap. 10). In this chapter the authors explore the role of human rights education in mediating the state-religion relationship. In human rights education, the role of place-space-time is crucial. Place refers to geographical boundaries, space to discursive conditions and time, to past, present and future. Today, South Africa has adopted a secular cooperative state-religion model based on substantive and material equality. Human rights education has, since 1994, played an important role in negotiating and resisting the lingering effects of coloniality in the state-religion relation. In the Netherlands, separation of state and church is practised which means that there is no institutional entanglement of church and state. While there is no official human rights education in the Netherlands, (multicultural) citizenship education provides the vehicle for the implicit teaching of human rights values. Although both South Africa and The Netherlands are secular states, the implementation of the secular state-religion relationship differs because of diverse place-­ space-­time, which is elaborated in detail in the chapter. The authors conclude that in both countries human rights education and human rights literacies will enable literate citizens to negotiate a state-rights-religion relationship, in both public and private spheres. Olof Franck and Bodil Liljefors Persson are presenting a study entitled Democratic and Inclusive Religious Education in the Secular State – The Case of Sweden (Chap. 11). The main question of this paper is how a secular democratic state can present its fundamental values to migrants who come from countries that are marked by particular religious norms and values? The Swedish state offers a non-compulsory course in civic orientation to migrants in order to provide them with knowledge of how Swedish society is structured, which is thought to accelerate and support integration processes. Research has shown a need for professionalisation of this type of education. According to the authors, a dimension of professionalisation can be described in terms of religious literacy. The development of a course in civic orientation, where norms and values are discussed with respect to human rights, presupposes those methods are developed to draw attention to the complexity, and the ambiguity, of relations between religious and secular ethical positions. Teachers need knowledge of religiously motivated beliefs in ethical issues and of ways in which these are made visible in the multidimensional practice of lived religion. The analysis in this chapter is based on a multidimensional understanding of the concept of religious literacy, with reference to a discussion about the distinction between having a right to live with or without religion. One aim is to explore challenges and opportunities to discern in the current discourse how religion can contribute to the development of the secular state and how secular value teaching can contribute to the development of religious approaches to human rights. The next chapter Human Rights and Religion-State Relations, with Reference to Migration in the Mexico-United States Region (Chap. 12) is also dealing with

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migration. In his article, Raymond Webb draws attention to the global problem of migration, which is currently affecting more people than ever before. Specifically, the author analyses the scope of migration at the border between Mexico and the USA. People who are refugees are very vulnerable and they have a minimum of protection. In the particular situations of transition, migrants are also impacted by the particular relations between religion and state and the human rights situation in the countries where they are. They are equally affected by the ability of religion and democracy to play their full and proper role in these relations, which means granting human rights to migrants, refugees and asylum seekers. Against the background of the migration issue, the paper discusses the relations between religion and the state, human rights, democracy and related issues. At the end of these reflections, the author formulates some demands and recommendations. An interesting phenomenon is highlighted by the study of Piotr Roszak, Sasa Horvat and Weronika Kudła. In their paper entitled The Right to Life and Cybersecurity in Poland: A Challenging Field for the State-Religion Relations (Chap. 13), the authors identify cyberspace as a relevant field of the battle between certain human rights. The paper analyses how the moral, political and legal conflict between religious freedom and reproductive rights, specifically the right to abortion, is reflected in the Internet. The background to the analysis are cases of verbal violence against religious groups on the Internet, which may be unleashed due to a union between the state and the Catholic Church that is experienced as a bulwark. In contrast, religious groups demand to be able to use the Internet for their ideas. The specific case the authors examine in this context concerns the discussion about abortion. The authors analyse how the Internet, which has the potential for social connection and direct access for information and knowledge, is actively used for manifestations of hate and incitement to hate crimes against believers. The increasing number of violent acts against worshippers prompted in cyberspace shows the need for a new multilayered strategy and tools for the protection and security of religious freedom as one of the fundamental human rights and a vital social force. For the authors, it is time to include the virtual world in the discussion about civil liberties. The final chapter in this book is presented by Eric Oduro Wiafe. In his paper entitled Human Rights and the Separation Between State and Religion in Africa: The Case of Ghana (Chap. 14), the author focuses on the way the state and the church deal with certain minorities, including the LGBTQ+ community. Although state and church are separate institutions, both hold a common view on the promotion and adherence of human rights principles in the country. The study seeks to understand how the state and the church cooperate to address human rights problems that arise in Ghana. Despite constitutional democracy, there are massive violations of human rights in Ghana. While the Church deplores these violations, it does not support the claim of nongovernmental organisations to recognise the practices of the LGBTQ+ community as a human right, namely, the right of free choice of lifestyle and non-discrimination because of lifestyle and sexual orientation. In the author’s view, in line with Pope Francis’ call to show mercy to the marginalised, the

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church should continue and strengthen its activities to reduce the abuse of marginalised people. The studies in this book illustrate the complexity of the religion/church-state relationship. The book refers to the exploitation of the state, whether it is pro-­ religious or anti-religious, whether it is democratic or not, whether it protects or neglects human rights, whether it grants privileges to certain religions but not to others, etc. Regarding religion and church, they can be part of civil society and participate in democratic life, but they can also appear monopolistic and define themselves in competition with other religions; they can see themselves as a subculture in society or as opposition to the state. In addition to the institutions, there are people who either demand rights to practice religion because they belong to a religious tradition, or they are able to live religious difference in the sense of peaceful coexistence, or people who have no religious affiliation and either are religiously indifferent or atheistic and accordingly demand a society in which they are not overwhelmed by too much religion. If one draws arrows between these individual characteristics, which already represent a strong reduction, the result would be a multifactorial model that is not static, but highly dynamic. The relationship between religion/church and state is in flux, and social discourse is needed on how state and religion each perform their own tasks, without losing sight of the central focus. Ultimately, their work is aimed at the same people, the same citizens of society, for whose wellbeing both religion and state are committed. Neither too close a fusion of religion/church and state nor an antagonistic relationship between the two will serve this goal, but rather a relationship in which religion/ church and state serve each other as a critical corrective.

References Arnason, J. P., Eisenstadt, S. N., & Wittrock, B. (Eds.). (2005). Axial civilizations and world history. Brill. Eisenstadt, S. N. (Ed.). (1986). The origins and diversity of axial age civilizations. State University of New York Press. Eisenstadt, S. N. (2003). Comparative civilizations and multiple modernities (Vol. I). Brill. Habermas, J. (1993). Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Suhrkamp. Luhmann, N. (1984). Soziale Systeme: Grundriss einer allgemeinen Theorie. Suhrkamp. Luhmann, N. (1998). Die Gesellschaft der Gesellschaft. Suhrkamp. Luhmann, N. (2002). Die Religion der Gesellschaft. Suhrkamp. Magni, S. F. (2011). Bioetica. Carocci. Newlands, G. (2004). The transformative imagination. Rethinking intercultural theology. Ashgate/ Routledge. van der Ven, J. A. (2010). Human rights or religious rules? Brill. van der Ven, J. A. (2020). Religion in progress. An approach inspired by human dignity, rights, and reasonableness. Springer. van der Ven, J. A., Dreyer, J. S., & Pieterse, H. J. C. (2004). Is there a God of human rights? The complex relationship between human rights and religion: A South African case. Brill.

Chapter 2

Religious Freedom and the Relationship Between State and Religion Hans-Georg Ziebertz

1 Introduction Modern liberal democracy is a pluralistic society. It not only recognises diversity as an empirical fact but also has a generally positive attitude towards plurality. It is the task of the modern constitutional state to ensure through its actions that diversity can be lived. The options for life expression that a pluralistic society offers are an enormous gain in freedom. This is especially true in the area of religion and religious practices. As a rule, the state does not take sides with a specific cultural group but remains neutral towards diversity. However, the actors who shape diversity must act within the framework of the applicable laws. It may happen that the state has to control diversity and, if necessary, limit it if, for example, social peace is significantly disturbed by certain manifestations of diversity. Diversity becomes a problem when it escalates, becomes extreme or fundamentalist, when people or groups are oppressed, marginalised, etc. In this case, the state must intervene. On the one hand, individual freedom, which is very high value in a liberal constitutional state, must be respected and protected. On the other hand, it is relative to the liberties of others. Thus, the state cannot make neutrality a deontological principle but must determine in the event of a conflict how it should relate to the various actors and what kind of regulation is appropriate. However, the state may not arbitrarily control plurality, but only on the basis of the constitution and laws. A particular domain for the state-plurality relationship are questions of religion and belief. Religion is a structuring element of plurality. Religion has an influence on the way people think and lead their lives, on values and norms and on upbringing H.-G. Ziebertz (*) Faculty of Theology, University of Würzburg, Würzburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F.-V. Anthony, H.-G. Ziebertz (eds.), Human Rights and the Separation of State and Religion, Religion and Human Rights 10, https://doi.org/10.1007/978-3-031-33998-1_2

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and education, and religion has an influence on the macro-level, on living together in social, cultural-social and political terms. In secular Western European societies, religion does not appear in the singular, but in the plural. Not one, but many religions are actors within cultural plurality. It is and remains a challenge for a religion that holds a universal worldview to accept that there are other religions that do the same. Therefore, different religions have to define their relationship to each other (this can be complementary but also competitive), they also have to do so vis-à-vis the nonreligious actors in the pluralistic society, and finally they have to clarify their relationship to the pluralistic state. Religious people and religious communities enjoy positive religious freedom, which allows them to fully practise their religion. This freedom is limited by negative religious freedom, which protects people from being appropriated by religion. As much as one may think in the abstraction that questions of positive and negative religious freedom have been clarified, many individual cases show that there is a considerable need for interpretation in order to balance the possibilities and limits of religious freedom. The way religious freedom is dealt with in a society also tells us something about the relationship between state and religion. All countries  – in Europe and elsewhere – have their own special cultural history regarding the relationship between state and church, state and religion, state and religions or state and world view. The very distinction between church, religion in the singular and religion in the plural and worldview groups already points to different developments and different perspectives. All forms of state-religion relations can be explained historically. However, there is no status quo, because the relationships change to the extent that the societies concerned change. The date 11 September 2001 should not be overstressed, but it is precisely this religiously motivated attack on the World Trade Center that has brought the public and political significance of religion back into the world’s consciousness. In the late second half of the last century, hardly anyone doubted the theory of secularisation, according to which the public significance of religion would continue to diminish, and religion would become a marginal event. Publicly, the widespread view was the degeneration of religion could hardly be stopped, religion was the relic of an expiring epoch, a private matter for the individual, and in modern society religion no longer had to be taken seriously. This assumption has not been confirmed at the beginning of the twenty-first century. The idea that religion is publicly inconspicuous and only of a private nature is hardly upheld in the sociology of religion (Casanova, 1994; Norris & Inglehart, 2004). It seems that since the beginning of the new millennium, there has been a new sensitivity for religious issues – but now for the ambivalence of religion: as a source for questions of life direction and social orientation of people but also as a cause of conflict and hatred (cf. Anthony & Ziebertz, 2011; van der Ven & Ziebertz, 2012, 2013). There are more and more cases in which states are challenged to take a stand on religious freedom, or more precisely, on the right to religious freedom. In his 1895

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work Die Erklärung der Menschen- und Bürgerrechte: ein Beitrag zur modernen Verfassungsgeschichte (The Declaration of the Rights of Man and of the Citizen: A Contribution to Modern Constitutional History), the German-Austrian legal scholar Georg Jellinek described the right to religious freedom as ‘the mother of many other rights’ (p.  42). Long after a period of bitter religious wars, should this still be true today? Plurality requires citizens to endure multiplicity, i.e. also to tolerate opinions that deeply contradict one’s own. Many citizens feel that this is not an easy task. They think that there are limits to tolerance. Debates become particularly heated when, as Jürgen Habermas (2001) put it, the core of the person is touched, that is, what is considered particularly fundamental and existential, where it is about the roots from which someone lives. A central area of ‘holding to be true’ is a person’s faith and religion. Religious pluralism intensifies the public debate on the question of how a society should deal with the fact that everyone is to be granted freedom of belief and religious practice, and whether or when a limit may be placed on this practice. Therefore, the handling of religious freedom, while not the only element, is an important one for the relationship between state and religion. For centuries, religious freedom has been treated as a problem of religious truth. Religious freedom should be enjoyed by those who stand in the truth. In this case, the state rises to be the arbiter of questions of religious truth. As shown in the first section, the Roman Catholic Church developed a strong dogmatic position on this until the first third of the twentieth century. However, the recognition that religious truth also exists not only in the singular but only in the plural challenged the state to find a new way to deal with religious diversity, namely, to allow religious practice without committing itself as a state to a particular truth position (cf. Ziebertz, 2014). Section two shows that this could only succeed by the state committing itself to religious neutrality. The question of whether the state should identify or even ally itself with a particular world view is still virulent, not only, but often in Muslim countries. The state should be neutral but grant freedom of religion. In order to clarify what is meant by freedom of religion, the third section reviews the main legal positions in relation to national and international declarations. Equally legally relevant is the problem to which the fourth section is concerned, namely, the question of whether, when and under what circumstances the state may limit religious freedom. There are a number of legal criteria for this, but the assessment will also depend on whether the social climate is more pro-religion or anti-religion. Section five presents various models for this. When reflecting on religious freedom as an example of the state-­ church/religion relationship, it is not only about law and legal philosophy but also about the sociological question of how a society is disposed to grant a position and role to church/religion. This is what the sixth and final section is about. Ultimately, the discourses in society show where a state-church/religion relationship is heading.

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2 Religious Claim to Absoluteness as a Problem for the Liberal-Democratic State In 313, the emperor of the West (Constantine) and the emperor of the East (Licinius) met and reached the remarkable agreement that all people should be allowed to worship their respective gods. The so-called Edict (of Toleration) of Milan states the following: Among the other matters which we considered useful to many people, or which had first to be ordered  – among which was included the question of the worship of the deity  – we thought we should give both Christians and all others the liberty to worship whatever religious power they wished. In this way, every deity on the throne of heaven can show himself gracious and benevolent to us and to all who are subject to our rule. And so, with common sense and reasonable deliberation, we felt we had to take this decision: We do not wish to forbid anyone to turn to the religion of the Christians or to the religion which each considers the most appropriate for himself. Thus, the supreme Deity, whose religion we (thus) follow with a free mind, may show us in everything its accustomed goodness and grace.1

After all, this declaration of tolerance, which already contained an idea of religious freedom, was valid for about a quarter of a century. In 341, the first laws were passed that – in modern terms – limited the religious freedom of pagan cults, and in 380, Emperor Theodosius declared Christianity the state religion. The demarcation term ‘pagan’ could still be used unencumbered, because what was to be considered a true and non-true religion resulted not least from the power-political circumstances. History would certainly have been different if the Milan Declaration of Toleration had stood and if it had possibly been further developed over the centuries. The question of whether religious freedom is a good thing or not was not settled then – and it remained contested throughout the centuries of the Middle Ages. The question of the legality and also legitimacy of a religion can be raised by the state or society but also by a religion, for example, when it is concerned with justifying its own supremacy. For this purpose, we will take a look at the Roman Catholic Church as an example. The Catholic Church has its own history with the issue of religious freedom. Pope Pius VI, in ‘Quot aliquantum’ of 10 March 1791, described the then burgeoning revolutionary understanding of freedom as ‘absurdissimum’. The assertion that there was an innate freedom and equality of all human beings was ‘inanis’ (nonsensical) (cf. Wolf, 2007, 95). A few decades later, in the encyclical ‘Mirari vos’ of 15 August 1832, Pope Gregory XVI resolutely opposed the ‘misguided opinion’ that every human being could attain eternal salvation with any creed, if one only aligned oneself with the morally good. Likewise, the idea of freedom of conscience was absurd, erroneous and even more delirious. Together with the encyclical ‘Quanta cura’ of 8 December 1864, Pope Pius IX published the Syllabus Errorum  – a collection of contemporary errors to be condemned (cf. Sebott, 1998, 183–192). It  All quotations in this text are translations by the author.

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was incompatible with Church teaching to claim that each person was free to adopt and profess the religion that he himself considered reasonable and true, or the view that the Church could be separated from the state and the state from the Church, and finally it was an error for someone to think that the Catholic religion should not be the only state religion and that all other forms of worship should not be excluded (cf. Simon, 2010, 113–126). A certain nuance in the Catholic position can be seen in Pope Leo XIII’s encyclical ‘Libertas praestantissimum’ of 20 June 1888, in which, on the one hand, he maintains that the Church only grants a right to what is true and morally good, but on the other hand concedes that it does not condemn the practice of the state if it tolerates something that is alien to truth and justice but only as long as it is done for the sake of the common good (communis boni causa). However – and this clearly limits the idea – it should not be inferred from this, according to the Pope, that there is an unlimited freedom to think, or a freedom to write or to teach or that there can be a freedom of religion that makes no distinctions between religions (cf. Simon, 2010, 113–126). Even the first edition of the important Lexikon für Theologie und Kirche (Encyclopaedia for Theology and Church), which is produced between 1930 and 1938, breathes the preconciliar spirit of the Catholic Church on the question of religious freedom. Taking into account relevant lemmas (religious toleration, freedom of belief, of conscience and freedom of religion), Simon (2010) summarises this position as follows: Truth has a right to recognition (not error); therefore, there is a moral duty to follow truth. Attempts to suspend oneself from the question of truth are forms of indifferentism that the Catholic Church cannot accept on dogmatic grounds. In the conviction of having absolutely and solely true religion, the Church and the Catholic are absolutely intolerant (Struker, 1931). The Catholic state of faith would be the ideal, which, admittedly, could only rarely be realised. Therefore, practical tolerance as civic toleration is required, both out of respect for foreign convictions and in favour of a state-ordered peaceful coexistence of all citizens. From a Catholic perspective, the state can only tolerate equal rights for different religions, but this tolerance should correspond to the respective majorities in a society. In a largely Catholic society, the Catholic Church insists on priority under state-­ church law, even if this limits the religious freedom of minorities. These excerpts characterise a way of thinking that shaped the Catholic doctrinal tradition until the 1960s. The Second Vatican Council (1962–1965) broke with this tradition and enacted a fundamentally new way of thinking on questions of religious freedom (cf. Hallermann, 2015). In any case, during this long period up to the 1960s, the Catholic Church powerfully and authoritatively upheld the position that there was only one truth and that this was represented only by the Catholic Church in the face of all the political, social, scientific and cultural upheavals that led to ‘modern times’ or ‘modernity’. And the Church has emphasised that one must not demand that people, groups or states adhere to an error. Therefore, the teaching that stands in the truth (i.e. one’s own) is to be treated preferentially. The state cannot meet such demand of a particular religious community in a modern pluralistic society. As the European Middle Ages show, the close

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organisational, personal and substantive relationship between state and religion/ church generates a multitude of conflicts. In practice, the union model leads, among other things, to preventing religious conversion through deterrence, or to subordinating positive law to religious dogma, i.e. to doing something that is not compatible with democracy or pluralism and does not legally guarantee religious freedom (cf. Brugger, 2007, 10). Of course, historical-critical analysis requires that statements such as those of the Catholic Church be read and interpreted contextually. Looking at contemporary religious traditions in a global perspective, the thought structure underlying these statements is not passé. There are numerous trouble spots in this world where religiously motivated and religiously instrumentalised truth claims clash and cause conflicts. According to their self-understanding, religions are not just philosophies or ideas, but they represent a doctrine that includes the claim to truth and adherence. For believers, this claim is comprehensive and concerns all areas of life and lifestyle. Such truth claims (of any ideological couleur) become a sociopolitical problem when they are not only formulated and lived as ‘truth for me’ but also supposed to apply to (all) others and attempts are made to enforce them through power politics. The state is thus challenged to find a position on religious plurality.

3 The Emancipation of the State from Religious Truth Claims Europe has a turbulent history when it concerns conflicts between religious traditions. When looking at the last 500 years, the numerous religious wars come into view, which left many traces of blood on the old continent after the Reformation. For Brieskorn, European history is the arena in which the decisive battles regarding religious freedom or lack of freedom were fought (Brieskorn, 2008, 15–28). Behind these struggles was, on the one hand, the motive to defend the homogeneity of the population (also religious homogeneity) and, on the other hand, to keep religion and politics closely connected: People, peoples and states found it difficult to tolerate multiplicity. Instead, they pushed for unity and unanimity. In this striving for homogeneity, religions played a considerable role, as they promised to unite different groups from within. Moreover, power itself pushes for homogeneity, since a uniform group is easier to dominate than a plural one. Where there was only one religion, its monopoly had to be secured; where there were several religions, religious unity had to be established. Forced conversions and expulsions characterise European history. (Brieskorn, 2008, 15f)

Brieskorn is certainly right to point out that it was also a political calculation to instrumentalise religion, for example, for the idea of ‘one people, one king, one faith’. Accordingly, the right of the Jews to exist in Europe was often on the agenda, as was the presence of Islam in Spain or the Huguenots in France, etc. The Peace of Westphalia in 1648 eased tensions to a certain extent, but the problems were not over.

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For those with political insight, the decisive question was how to manage to live together in peace, while at the same time holding very different and sometimes hostile ideological convictions. How should religious truth and secular freedom be communicated? The English Bill of Rights in 1689, the American Bill of Rights of Virginia in 1776 and above all the Declaration of the Rights of Man and of the Citizen (Déclaration des Droits de l’Homme et du Citoyen) in the context of the French Revolution in 1789 had declared their support for secular freedom and religious freedom. With the French Declaration, after centuries of feudalism and absolutism, the basis for comprehensive legal security was created for the first time on European soil, including the guarantee of freedom of expression and religious freedom (Schmahl, 2010, 27–48). The solution to the problem of how people with very different religious confessions could live together lay in the development of a new theory of political order. In essence, the question of religion had to be removed from its religious context and turned into a political issue. The political order had to be justified from within itself. In the ‘old’ order, to which the Catholic Church also adhered until Vatican II, religious freedom was linked to ‘true religion’. Religious freedom, if one may use the term at all in this context, applied to those who stood in the true religion. Böckenförde is certainly correct in stating that religious freedom is not to be owed to religions, but to politics and the state, which see themselves as secular. The decisive change lies in the fact that the state, negatively speaking, no longer legitimises itself from religion – or more precisely from true religion – and dispenses with the task of answering the question of what a true religion is. Positively speaking, the state concentrates on the task of regulating the coexistence of a heterogeneous citizenry. Böckenförde describes the process that is set in motion here as follows: ‘The state and public order had to become secular, secularised, detached from being anchored in the true religion or in any particular religion at all, if it wanted to find a new general basis embracing all citizens and leaving behind the dispute between the confessions, which could not be settled. (…) The state as such declared itself neutral towards religious truth. The question of religious confession became, in principle, a personal, indeed ultimately private matter for the individual citizen’ (Böckenförde, 1990, 18f). With regard to the position of the Catholic Church between the end of the eighteenth century and the 1960s, Böckenförde recognises a kind of ‘Catholic opportunism’, which lies in demanding freedom for oneself, but not granting freedom for the error of others. The theory of tolerance of the Catholic Church up to Vatican II did not use man as a subject in the sense of law, but an abstract concept: the concept of truth. ‘Man is degraded to the object of this abstract concept of truth’ (Böckenförde, 1990, 23). In this context, law is no longer something that belongs to the person because of his or her personhood and inherent human dignity, but a derivation from a presupposed religious truth. If a person lives in error, i.e. outside religious truth, he has no right in principle, but at most a claim to tolerance granted by the state. It is also interesting to note that Böckenförde’s point turns the idea of natural law, which the Catholic Church traditionally holds in high esteem, into its opposite. Man has the right not from his nature and by virtue of his dignity, but from a concept of

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truth defined by certain authorities. The appeal to the concept of truth is thus not a legal-theoretical but a power-political gesture (Böckenförde, 1990, 23f). The conviction that truth takes precedence over freedom and that error has no right over truth is, incidentally, not only to be found in religious systems but also in totalitarian states. The modern understanding of religious freedom is based on the principle that the religious-moral order relates to human beings and their relationship to God, while the legal order regulates the coexistence of human beings and their relationship to state authority. This law is an order of peace and freedom, and as such it enables the individual to live according to his or her truth (Böckenförde, 1990, 27f). Law, as it emerged from the misery of the confessional civil wars, has, precisely for the sake of freedom, renounced being itself already directly an order of truth and morality; it only wants to make truth and morality possible and to secure external coexistence. (Böckenförde, 1990, 29f)

This right ensures the possibility of worshipping God and performing appropriate acts of worship and protects this practice from the encroachment of other people or state authority. The state regulates its relationship with religion in such a way that religious traditions are allowed to practise their faith and it requires them to practise in a way that allows different religions to coexist peacefully. The interpretation of religious freedom and corresponding legislation establish a binding regulatory framework. For the relationship between the state and the church/religion, this results in a rejection of any form of fusion or union of the two orders. The state must be ideologically neutral in order to be able to fulfil the task of granting all citizens the same rights, i.e. to grant everyone equal freedom of religion. Neutrality means that the state keeps its distance from religions without this having to result in antagonism or hostility. But what exactly does religious freedom entail and what happens when religious people or religious communities do something that endangers peaceful and orderly coexistence in a state community? When and under what circumstances may a limit be placed on the right to free exercise of religion? This is what the following two sections are about.

4 Religious Freedom as a Fundamental Right and Human Right Freedom of religion is one of the central human rights. What rights does it give and what limits are drawn? To this end, we will look at the articles on religious freedom in the relevant declarations and constitutions. First, the Basic Law of the Federal Republic of Germany, Article 4, states the following: 1. The freedom of faith, conscience and the freedom of religious and world view are inviolable. 2. The undisturbed practice of religion is guaranteed.

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In these two sentences, the Basic Law declares itself in favour of positive freedom of religion (‘inviolable’), i.e. the protection of the freedom to profess a religion and to exercise the practice associated with it. One year earlier, the United Nations had adopted the Universal Declaration of Human Rights (1948), which, after the Holocaust and Stalinism, represented a decisive milestone in the understanding of human rights. Article 2 refers to positive religious freedom, which is to be granted to everyone without distinction: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 18 adds the dimension of community and public manifestation to the right to private beliefs. The article also speaks of the freedom to convert – an article that is still controversial today, especially in parts of the Islamic world: 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.

Article 19 also safeguards the free dissemination of beliefs: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

In 1950, the European Convention on Human Rights was adopted, Article 9, of which deals with freedom of thought, conscience and religion. On the one hand, this article takes up the abovementioned positive freedom of religion, but on the other hand it also adds a sentence concerning the limit of religious freedom, which will be discussed later: 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.

Finally, reference should be made to Article 18 of the International Covenant on Civil and Political Rights (ICCPR, 19 December 1966), which also deals with positive and negative religious freedom and has legal status vis-à-vis the UN Declaration of 1948: 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 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.

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Freedom of religion appears in these statements as a fundamental right. People are protected in their free choice of ideological convictions and, if necessary, in changing their convictions. According to the spirit of these declarations, the state is ideologically neutral. However, there is a clear tendency: The state should enable religious practice and not limit or even prevent it! People should not be hindered from practising their faith alone or in community. Freedom ‘may only’ be limited if public interests defined in terms of content are in danger. What concerns are we talking about here?

5 When May the State Restrict Religious Freedom? The literature on the human right of religious freedom repeatedly refers to the fact that this right is primarily aimed at enabling religious practice and not at limiting it, so it is a crucial question when this freedom may be implicitly or explicitly curtailed. The Universal Declaration of Human Rights (UDHR, 1948) includes a general limitation clause in Article 29, which deals with the recognition of and respect for the rights and freedoms of others, as well as requirements of morality, public order or the general welfare for the functioning of a democratic society. The International Covenant on Civil and Political Rights (ICCPR, 1966) speaks in Article 18 (third sentence) of ‘limitations provided by law’ which concern the protection of public safety, order, health, morals or the fundamental rights and freedoms of others. The European Convention on Human Rights (ECHR, 1950) used similar wording. In the literature, a distinction is made between a ‘forum internum’ and a ‘forum externum’. The ‘forum internum’ concerns the internal sphere of religion (beliefs, practice of the faith, etc.), which is protected from the intervention of the state. The ‘forum externum’ refers to the publicly visible manifestation of religion, which is mostly the subject of state restrictions. But even this distinction contains some ambiguities. The least controversial seems to be that the state may not interfere with what someone believes or whether she/he believes anything at all. This concerns the privacy of the individual, where free orientation is absolute. The state is also not allowed to intervene if someone changes his or her faith. This very aspect is sometimes rejected by Islamic states because Islamic law forbids conversion. Bielefeldt points out that in Saudi Arabia, Sudan, Iran and Mauritania, for example, ‘apostasy from Islam’ is threatened with the death penalty (Bielefeldt, 2008, 60). The Cairo Declaration on Human Rights in Islam (5 August 1990) states in Article 10 the following: ‘It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism’. Non-­ Islamic groups suspected of missionary activity in Islamic countries have to reckon with repression. The fact that this is also the case in ‘laicist’ Turkey, for example, is repeatedly criticised publicly and politically.

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When is the forum externum given, so that the state may interfere with religious freedom? ECHR (1950) and similarly ICCPR (1966) indicate three criteria according to which restrictions are possible: When they are prescribed by law When public safety, public order, health, morals or the protection of the rights of others are at stake And when restrictions are seen as necessary in democratic society

Gunn (2012) critically analyses these three criteria. In the first criterion, ‘prescribed by law’, he sees the requirement that states or state organs may not act at their own discretion or convenience, but only if there is a legal basis (2012, 259). The law used to limit religious freedom must be published and accessible, i.e. an appeal to official decrees is not sufficient. Finally, the law must be understandable, and a person must be able to foresee that a particular activity would not be in accordance with the law. This area of legally justified restriction of religious manifestations must therefore not be vague, unclear or arbitrary and does not give the state authority unfettered discretion. The second criterion, ‘promotion of legitimate public interests’, allows restrictions on religious freedom to protect public interests in matters of security, order, health, morality and the protection of others. Restricting religious manifestations in order to protect a traditional or majority religion, for example, cannot be claimed. Public interest in the abovementioned fields can exist if, for example, religiously motivated demonstrations are banned in places that are likely to denounce other religions, provoke and possibly provoke violent reactions; or if hygiene requirements are imposed on burials in religious cemeteries, for example, with reference to groundwater problems. On the other hand, a ban on the communion under two forms (bread and wine) would be excessive in view of a possible danger of epidemics. However, this example shows that a restriction of religious manifestations by using the abovementioned reasons alone could justify almost any restriction (Gunn, 2012, 260). The third criterion is with the adjective ‘necessary’ (ICCPR) or ‘necessary in a democratic society’ (ECHR). According to Gunn, it is not difficult for a state to invoke one of the first two grounds in the interest of restricting religious manifestation (Gunn, 2012, 261). They are considered rather soft criteria, and when national courts have used them in decisions, the rulings have often not been upheld by international courts. The third criterion now speaks of ‘necessary’, but this term is not defined. The word ‘necessary’ suggests something essential and absolute (sine qua non). In any case, it is much stronger than terms like good, helpful, desirable, understandable or similar. Necessary means that no other option is within reach and that the consequences will be fatal if religious freedom is not restricted. The addition of the ECHR ‘in a democratic society’ gives the impression that religious manifestation should be restricted if democracy or the democratic state itself is threatened. International courts, however, are less likely to use the term ‘necessary’ and instead tend to use the term ‘proportional’ (Gunn, 2012, 262ff). The question then is whether a restriction on religious freedom is proportional to the harm that religious activity would have on democracy. If one relates this question to the headscarf

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dispute, for example, it will probably not be easy to make a plausible case for why a headscarf-wearing teacher should be a danger to democracy. Other criteria – such as a certain religious symbolism attributed to the headscarf, feminist criticism of the oppressive nature of the headscarf by a male-dominated society or the restrictive handling of positive religious freedom for reasons such as preference for secularism – are not covered by the adjective ‘necessary’. Therefore, when using this terminology, one must critically ask whether it is ultimately chosen in an obfuscatory manner in order to be able to justify desired results. To narrow this issue, courts need to clearly define their role, take into account the burden of proof of both parties, consider progressively lesser restrictions on religious freedom and require evidence that democracy is at risk. The right to religious freedom is a fundamental right, and ‘necessary’ limitations should be the exception and not the rule. What has been said shows that there is a great deal of room for interpretation regarding the enabling of religious practice and manifestation on the one hand and the right of the state to limit it when it seems necessary on the other. The following section draws attention to different models according to which state-church/religion relations are shaped. Then we ask what discourse dynamics are at work in a society that affect the shaping of the relationship.

6 Models of the Relationship Between State and Church/ Religion The sociopolitical shaping of religious freedom is a discursive action in which numerous actors are involved. What these actors have in common is that they are not interest-free but have certain ideas about what role and status religion should have in a state system. Riedel (2008) reminds us that the question of the separation of state and church/ religion is a historically recent question, considering that the political systems of Europe were absolutist until modern times. Divine right was reflected in the power of the rulers, and secular and spiritual institutions were closely intertwined. There was only one predominant state-church/religion model, namely, that of union. Processes of modernisation, secularisation and democratisation of European states, as well as certain revolutionary interventions, wiped out this model. The Union model revived in the Cold War period, but in this case the Union was not between state and religion, but between state and Marxist ideology, which had religion-like features. The constitution in Albania (1976, Art. 37) was particularly strict in communist times. Religion was forbidden, churches and mosques were closed, the possession of a Bible was a criminal offence and religious marriages were punishable by death (cf. Neuberger, 1999, 66). This form of union between the state and atheism was extremely hostile to religion. In Russia, Stalin combined atheism with authoritarian secularism. The state not only controlled religious

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communities but also used existing religious structures and symbols to consolidate its totalitarian rule (Riedel, 2008, 271). Both extremes, on the one hand the material union of the state with one religion and on the other hand the relationship between state and church/religion as enmity and repression, do not (currently) exist in Europe. In the first case, the dominant religion enjoys freedom of religion; in the second case, there is no freedom of religion or only limited freedom of religion in the negative sense. Robbers (2005) distinguishes three types of state-church/religion relationship in relation to the present, namely, (1) countries with state churches, (2) secular states with a separation of state and church/religion and (3) cooperative hybrid systems. Sandberg (2008, 330) discusses this typology and concludes that all three types are very heterogeneous in themselves and only allow for a rough subdivision. Riedel (2008) comes to a similar distinction. (1) In the first model, there is a national church as an official religion. Examples are England and the Church of England and Orthodox-influenced countries such as Greece and Bulgaria, where the Orthodox religion enjoys special privileges. (2) In the second cooperative model, the practice of faith is defined as a matter of public concern. The churches benefit from state subsidies and tax exemptions but differ from the state-church model in that the churches are self-governing and there is no state interference in religious affairs. The relationship with the state is regulated by treaties or concordats, as in Germany, Austria, Italy and many other countries. (3) The third model has a secular basic structure. Religious and state institutions are completely separated; religion is considered a private matter. Riedel (2008, 270) sees this model realised in France (laïcité). Now, the basic secular structure can have different faces, because the separation can be practised benevolently, indifferently or hostilely, so this distinction is also too rough. Neuberger (1999) distinguishes between six models. (1) Model 1 is a theocratic model which, according to Neuberger, no longer survives in its strict form, but can be found as a semi-theocratic model in Sudan, Saudi Arabia and Afghanistan, for example. (2) Model 2 is a secular-absolutist model, which, however, no longer exists in today’s Europe. (3) Model 3 is called the Established Church, i.e. a national or state church model in which a religious community is considered the official religion. (4) This is followed by the Endorsed Church model, according to which a religious community does not have the status as in Model 3 but can count on benevolent support from the state. For Neuberger, this model treads a middle path between the Established Church and Recognised Communities. (5) Another model is that of separation of state and church/religion. States representing this model see themselves as either secular or neutral. The secular attitude can be understood as nonreligious; however, it can also bear anti-religious traits. Finally, Neuberger speaks of (6) the recognised communities model, which means that there are legally recognised religious communities in a state that are equal before the law in every respect (e.g. in the Federal Republic of Germany). The model differs from the Established Church because the churches are not subject to state interference. It differs from the separation model because religion is not regarded as a private matter, but because state and church/religion cooperate on a contractual basis in many areas.

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Brugger (2007) also distinguishes six models and places them on a continuum. (1) On the one hand, there is the model in which state and church/religion are hostile to each other; (6) on the other hand, there is the model of material unity of state and church/religion. Because there is currently no country in Europe with such an extreme escalation of the relationship between state and church/religion, they serve more as a bracket for the other four models, which Brugger calls (2) strict separation in theory and practice, (3) separation and consideration, (4) separation and partial cooperation, and (5) formal unity of church and state. Model 2 is a separatism model characterised by independence and distance between state and church/ religion. The religions are completely free in their organisation, teaching and practice within the framework of the law. For the state, all religions are equal, i.e. also, indifferent. Model 3 is also a separation model, at least in theory. In contrast to Model 2, however, both sides behave more accommodating and compromising in practice, i.e. there can be limited exceptions to strict separation, but these must be specifically justified. The reason for allowing exceptions and thus relativising the principle of separation can be, for example, consideration for the religious character of the country if there is a particularly high percentage of a certain religion in the population. This model is therefore not characterised by distrust between state and church/religion. According to Brugger (2007, 17), this model does not allow for a preference between religions, but it does allow for a preference of religion over nonreligion (such as atheism). Model 4 goes one step further. The relationship between state and church/religion is not primarily defined by distance, but by friendly tolerance and cooperation. This cooperation is partly regulated by contract or by law, for example, for a religion’s involvement in charitable work, pastoral care in hospitals, prisons or the military, religious education in state schools and much more. In Germany, for example, the two large Christian churches have the status of a public corporation  – with structural separation from the state. Model 5 finally implies a formal unity of state and church/religion. Brugger thinks here, for example, of national or state church systems as in Great Britain, Greece or Israel. Formally, countries in this model know a state or national church that is secured by the constitution. In the British monarchy, the monarch is the head of the Church of England. In Greece, Article 3 of the 1975 Constitution states that the Orthodox Church, as the predominant religious community, is entitled to a number of privileges compared to other religions. The State of Israel is to be a homeland for all the Jews of the world, although Jewish does not, of course, have only religious connotations. Despite the privileged religions, a materially extensive freedom of religion and religious equality are guaranteed. The typologies cited are based on the state-church-religion constellations that can be found and put them in an order. Ultimately, however, each country has so many particularities that commonalities and differences are not always satisfactorily captured by one label. The special features have many roots. The central root is the history of a country in which the course of religious policy was set over centuries. Although the Reformation is 500 years old and despite the process of secularisation, it is still possible to speak of a Protestant Northern Europe, an Orthodox Eastern Europe and a Catholic Southern Europe. For the social discourses, the

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population structure is also of weight, i.e. the question of whether it is a rather mono-religious, religiously pluralistic or secular country. If 90% of the population belongs to one religious denomination, a certain religious inequality is more likely to be accepted as culturally common. Finally, the prestige of a religious community and how its capacity for plurality and democracy is assessed will play a role. People will think differently about state-church/religion relations if a religion is socially integrated or experienced as a problematic subculture. Cavuldak (2013) finds these arguments in constitutional lawyers such as the German scholar Paul Kirchhof that because of equal religious freedom for everyone, the democratic state does not have to treat all religious communities equally, but is allowed to take into account their different contributions, i.e. to pay attention to the extent to which they either underpin or undermine the existence of the state through their practice. Looking at the typologies referred to, the predominant principle on which they are constructed is the proximity-distance continuum, wherein factors such as the latter are conditionally incorporated. It makes sense to look at the discourse dynamics of a society in which the arguments used to justify proximity or distance are developed.

7 Discourses on the Relationship Between the State, Church and Religion Legal norms are based on discourses that have taken place in the past and have become positive law. If discourses on a certain issue persist or flare up again after a certain period of time, politics may be called upon to make adjustments to the law. In a democratic society, it is normal for political majorities to change. If new majorities also differ in terms of religious policy, this can lead to changes in legal positions with regard to the relationship between state-church/religion. If a political majority is laicist, it will classify even minimal influences or unequal treatment as contrary to religious freedom and equality and claim the right to negative religious freedom. If the political majority is pro-religion, it will be more positive about the participation of religious actors and institutions in the public sphere and emphasise positive religious freedom (cf. Brugger, 2007, 35). It is therefore evident that social discourses have an impact on the interpretation and practical application of religious freedom and thus on the relationship between state-church/religion. In this respect, such discourses, which take place in all modern pluralistic states, deserve our attention. Jürgen Habermas has presented interesting reflections on this in his volume Zwischen Naturalismus und Religion (Between Naturalism and Religion) (2005). In it, he describes religion as a comprehensive doctrine, i.e. as an authorised set of rules for the orientation and formation of life as a whole. Habermas continues as follows: Religion had to give up the claim to a monopoly on interpretation and comprehensive shaping of life under conditions of secularisation of knowledge, neutralisation of state power

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The task of political integration of citizens requires more than just finding the lowest common denominator. Efforts should be expected from both religious and secular citizens. Religious people and religious communities as a whole would have to process cognitive dissonances arising from three challenges of modernity: religious pluralism, the rise of modern sciences and the enforcement of positive law and profane social morality (Habermas, 2005, 143). In the context of secularity, religious citizens are challenged, firstly, to find an epistemic attitude towards other religions and world views that they encounter within their own universe of discourse and to relate self-reflexively their own and other people’s doctrines of salvation without seeing their own claim to truth endangered. Secondly, they are challenged to find an epistemic attitude towards the waywardness of secular knowledge, i.e. to communicate dogmatic beliefs and secular world knowledge in such a way that, for example, secular advances in knowledge do not contradict salvation-­ relevant statements. And thirdly, they are challenged to find an epistemic attitude towards the primacy of secular reasons in the political arena and to be able to embed it in their doctrines. Historically, religious citizens have had to learn to adopt epistemic attitudes to their secular environment that fall effortlessly to enlightened secular citizens. (Habermas, 2005, 114)

It seems that this challenge is now accepted by most churches and religions in Western societies: a constructive attitude towards competing religions, a recognition of the intrinsic value of secular knowledge and even the acceptance of the primacy of secular reasons in political decisions. However, recognition and acceptance do not mean that churches and religions submit to secular majorities, as sometimes happens in questions of marriage and sexual morality, abortion or euthanasia, to name just a few examples. Nor should it be forgotten that some churches and religious communities continue to have problems recognising and adopting certain rights. In the Catholic Church, for example, one controversial issue is the question of equality between women and men and the exclusion of women from central positions (cf. Ziebertz, 2020). Theological reasons are claimed for this, which in many cases are no longer convincing within and certainly not outside the church. Equally problematic is the handling of freedom of expression in ecclesiastical and theological debates. It would be worth a contemporary historical analysis of how the consequences of the decades-long non-transparent practice of doctrinal withdrawal are to be assessed with regard to the quality of Catholic theology, its capacity for discourse and the inner freedom of those teaching – especially during the period of activity of the Curia Cardinal and later Pope Josef Ratzinger. Finally, how are positive and negative religious freedom in the Catholic Church to be assessed? Is it inevitable, for example, that religious freedom does not apply, cannot apply, in the Church? One will only be able to assert this if one understands a certain empirical institutional phenomenon as the natural and comprehensive administrator not only of

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religion but also of God’s will. It is also no longer socially enforceable to demand religious freedom for one’s own religious position and to accept restrictions for other beliefs. This also applies to the Catholic Church when, for example, in 2009 the then Pope Benedict lifted the excommunication of bishops from the right-wing Catholic Pius Fraternity, even though they reject religious freedom. Such decisions can no longer be communicated to an increasingly critical public and do considerable damage to the Church. These ambivalent-problematic sides of the churches or religious communities cannot be ignored, especially since they serve as an argument, especially for critics of religion, to demand the greatest possible distance between the state and religious systems. Habermas, however, not only formulates expectations of religious citizens but also takes secular citizens into consideration. In order to surpass a minimum consensus, he believes secular citizens must also be expected to perform. They are not exposed to similar cognitive dissonance in the first place. But they are not spared a cognitive burden either, because a secularist consciousness is not sufficient for cooperative interaction with religious fellow citizens. (Habermas, 2005, 114)

Furthermore, secular citizens are expected to strive for self-reflexivity with regard to overcoming a secularistically hardened and exclusive self-understanding of modernity. As long as secular citizens are convinced that religious traditions and religious communities are, in a sense, archaic relics from pre-modern societies that reach into the present, they can only understand religious freedom as cultural nature conservation for dying species. (Habermas, 2005, 145)

Habermas uses the terms secular and secularist, suggesting a polarisation for which John Witte (2013) uses the distinction between secular and laicist resp. atheist citizens. Secular contemporaries, he suggests, are tired of religiously motivated conflicts. They are not interested in religions and their contents and understand them as one among the many possible positions one can hold in a liberal society. According to Habermas, a secularist view holds that religion no longer has any inner justification, that religious citizens will not be able to withstand the pressure of progressive modernisation in the long run anyway, that their religious contributions to public political issues are not to be taken seriously and that there is no basis for cooperative truth-seeking. This description is consistent with Witte’s characterisation of laicists and atheists, for whom religions are expansive, monopolistic, patriarchal and hierarchical: an antithesis to pluralism, tolerance, equality and universality of human rights. Laicists and atheists have a vital interest in reflecting on the limitation of religious freedom, emphasising the right to negative religious freedom and supporting people to make use of it. Their intention is recognisably anti-religious and anti-church and shows a clear interest in giving the state a different appearance with the help of the ideology of laicism. The question is whether laicists and atheists have the willingness for reflection and dialogue that Habermas expects from secular citizens, especially when he formulates conditions for secular people to invoke negative religious freedom, because

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the effort of negative religious freedom is linked to a substantive claim and is not free. Secular consciousness is expected to practise a self-reflexive approach to the limits of enlightenment. The understanding of tolerance in liberal, pluralistic societies does not only expect believers to realise in their dealings with non-believers and those of a different faith that they must reasonably expect dissent to continue. On the other hand, within the framework of a liberal political culture, the same insight is expected of non-believers in their dealings with believers....The expectation of a continuing non-agreement only deserves the predicate “reasonable” if religious convictions are also granted an epistemic status from the point of view of secular knowledge that is not irrational per se. (Habermas, 2005, 177f)

Habermas adds that this expectation of secular citizens in the secularised societies of the West is anything but self-evident (Habermas, 2005, 145). It is interesting that he concludes from this that there is no legitimation for the dominance of the secularist perspective. The neutrality of state power regarding worldviews, which guarantees equal ethical freedoms for every citizen, is incompatible with the political generalisation of a secularist worldview. Secularised citizens, insofar as they act in their role as citizens of the state, may neither fundamentally deny religious worldviews a potential for truth, nor deny fellow citizens of faith the right to make contributions to public discussions in religious language. A liberal political culture can even expect secularised citizens to participate in efforts to translate relevant contributions from religious into publicly accessible language. (Habermas, 2005, 118)

It cannot be ruled out that religious traditions contain semantic potentials that could be inspiring for society as a whole if their ‘profane truth content’ became accessible. In this context, Habermas compares the American Bill of Rights from 1776 and the French Declaration of Liberty (1789). The Bill of Rights says in Article 16 ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. Habermas sees this as the fundamental interest of enabling religion, i.e. ensuring that immigrant settlers can practise their respective religions and granting equal rights to members of other beliefs. In contrast, the concept of religious freedom in the French Declaration of Liberty was aimed at enforcing secularism and laicité, according to which religious minorities were at most to be granted tolerance (Habermas, 2005, 123). In the meantime, even in France, where the principle of laicité has constitutional status, dialogue with religions is accorded value (cf. Gauchet, 1998, quoted in Ballin, 2016). The German constitutional lawyer Ernst-Wolfgang Böckenförde has also very prominently advocated a position that is essentially positive towards religion. For him, the secular democratic state is the home of all citizens, regardless of personal characteristics or religious affiliation. The secular state may expect religions to be law-abiding and loyal to the law, but the state’s freedom prohibits it from demanding value professions from religions (Böckenförde, 2006, 36). The state’s neutrality must be open and overarching; it can, for example, give religious and world views space to develop in public schools without identifying with them in any way (Böckenförde, 2007, 439).

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These discourses are no longer only about questions of law, but about the quality of public political culture in the dialogue between religiosity and secularity. The fact that Habermas calls on ‘both sides’ to perform, without which neither understanding nor peaceful coexistence is possible, also means that neither side can claim to have the Archimedean point of view. Opponents of religion will continue to advocate a sharp separation of state and church/religion. However, there is a danger that under the guise of neutrality, the ideology of laicism will take hold, but this will only replace one religious world view with another, precisely a secularist one. The historical lesson, however, should be that the state does not adopt any world view as its own. When this has happened in the past – think of Nazi Germany or Stalinism – the consequences have been disastrous. Conversely, in a pluralistic society, churches and religions are subject to certain rules of the game which they must abide by if they expect the public to adopt a fundamentally positive attitude towards them. Religions and world views are particular phenomena, so none of them can claim political dominance in a pluralistic society. This practice, too, as history shows, is not desirable. Admittedly, without religion, most societies would lose significant cultural content, making them poorer. For the relationship between state and church/ religion, there will have to be a system of checks and balances so that both can cooperate with each other despite structural separation.

References Anthony, F.-V., & Ziebertz, H.-G. (Eds.). (2011). Religious identity and national heritage. Brill. Ballin, H. (2016). Religious citizens: On the relation between freedom of religion and separation of church and state. In H.-G. Ziebertz & H. Ballin (Eds.), Freedom of religion in the 21st century (pp. 92–104). Brill. Bielefeldt, H. (Ed.). (2008). Jahrbuch Menschenrechte. Wien. Böckenförde, E.-W. (1990). Schriften zu Staat-Gesellschaft-Kirche. Bd. III Religionsfreiheit. Böckenförde, E.-W. (2006). Der säkularisierte Staat, Sein Charakter, seine Rechtfertigung und seine Probleme im 21. Jahrhundert. Carl Friedrich von Siemens Stiftung. Böckenförde, E.-W. (2007). Kirche und Christlicher Glaube in den Herausforderungen der Zeit, Beiträge zur politisch-theologischen Verfassungsgeschichte 1957–2002. Brieskorn, N. (2008). Der Kampf um die Religionsfreiheit in der Geschichte. In Jahrbuch Menschenrechte 2009 (pp. 15–28). Brugger, W. (2007). Varianten der Unterscheidung von Staat und Kirche: Von strikter Trennung und Distanz über gegenseitiges Entgegenkommen bis zu Nähe, Unterstützung und Kooperation. Archiv des öffentlichen Rechts, 132(1), 4–43. Casanova, J. (1994). Public religions in the modern world. University of Chicago Press. Cavuldak, A. (2013). Die Legitimität der hinkenden Trennung von Staat und Kirche in der Bundesrepublik Deutschland. In G. Pickel & O. Hidalgo (Eds.), Religion und Politik im vereinigten Deutschland. Springer VS. Gauchet, M. (1998). La religion dans la démocratie. Gallimard. Gunn, T.  J. (2012). Permissible limitations on the freedom of religion or belief. In J.  Witte & M.  C. Green (Eds.), Religion and human rights. An introduction (pp.  254–268). Oxford University Press. Habermas, J. (2001). Glaube und Wissen.

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Habermas, J. (2005). Zwischen Naturalismus und Religion. Frankfurt a. M. [engl. Between naturalism and religion. Polity, 2008]. Hallermann, H. (2015). Das Verständnis der Religionsfreiheit in Lehre und Praxis der katholischen Kirche. In H.-G.  Ziebertz (Ed.), Religionsfreiheit. Positionen-Konflikte-Herausforderungen (pp. 53–78). Echter. Jellinek, G. (1895). Die Erklärung der Menschen- und Bürgerrechte: ein Beitrag zur modernen Verfassungsgeschichte. Neuberger, B. (1999). Religion and state in Europe and Israel. Israel Affairs, 6(2), 65–84. Norris, P., & Inglehart, R. (2004). Sacred and secular. Religion and politics worldwide. Cambridge University Press. Riedel, S. (2008). Models of church-state relations in European democracies. Journal of Religion in Europe, 1, 251–272. Robbers, G. (2005). State and church in the European Union. In Idem, State and Church in the European Union (pp. 577–589). Nomos. Sandberg, R. (2008). Church-state relations in Europe: From legal models to an interdisciplinary approach. Journal of Religion in Europe, 1, 329–352. Schmahl, S. (2010). Überlegungen zur Kategorisierung internationaler Menschenrechte. In H.-G. Ziebertz (Ed.), Menschenrechte, Christentum und Islam (pp. 27–48). Sebott, R. (1998). „Dignitatis humanae“ und „Quanta cura“. Die Verurteilung der Religionsfreiheit vor dem Zweiten Vatikanischen Konzil. In P.  Boekholt & I.  Riedel-Spangenberger (Eds.), Iustitia et Modestia (pp. 183–192). Simon, W. (2010). Das Menschenrecht Religionsfreiheit in christlicher Perspektive. In H.-G. Ziebertz (Ed.), Menschenrechte, Christentum und Islam (pp. 113–126). Struker, A. (1931). Art: Duldung, religiöse. LThK1, 3(1931), 483–486. van der Ven, J. A., & Ziebertz, H.-G. (Eds.). (2012). Tensions within and between religions and human rights. Brill. van der Ven, J. A., & Ziebertz, H.-G. (Eds.). (2013). Human rights and the impact of religion. Brill. Witte, J. (2013). Religious sources and dimensions of human rights. In G. J. Buis, J. T. Sunier, & P. G. A. Veenstra (Eds.), Risky liasions? Democracy and religion: Reflections and case studies (pp. 29–53). VU University Press. Wolf, H. (2007). Katholische Kirchengeschichte im „langen“ 19. Jahrhundert von 1789 bis 1918. In H.  Wolf, T.  Kaufmann, R.  Kottje, & B.  Möller (Eds.), Ökumenische Kirchengeschichte (Vol. 3). Ziebertz, H.-G. (2014). Religionsfreiheit – Kontroversen im Kontext weltanschaulicher Pluralität. In F. Dünzl (Ed.), Umbruch, Wandel, Kontinuität (312-2012). Von der Konstantinischen Ära zur Kirche der Gegenwart (pp. 219–247). Echter. Ziebertz, H.-G. (2020). Support for women rights? An empirical study among German youth. In H.-G.  Ziebertz (Ed.), International empirical studies on religion and socioeconomic human rights (pp. 235–260). Springer.

Secular Documents Bill of Rights, 1689. http://www.verfassungen.eu/gb/gb1689.htm Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe, 1950. https://www.echr.coe.int/documents/convention_eng.pdf Declaration des Droits de l’homme et du citoyen, 1789. https://www.un.org/fr/ universal-­declaration-­human-­rights/ Grundgesetz (Basic Rights) of the Federal Republic of Germany, 1949. https://www.bundestag.de/gg

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International Covenant on Civil and Political Rights (ICCRR), UN 1966. https://www.ohchr.org/ en/professionalinterest/pages/ccpr.aspx The Cairo Declaration of the Organization of Islamic Cooperation on Human Rights, 1990. https:// www.oic-­oci.org/upload/pages/conventions/en/CDHRI_2021_ENG.pdf The Virginia Declaration of Rights, 1776. https://www.archives.gov/founding-­docs/ virginia-­declaration-­of-­rights Universal Declaration of Human Rights, UN 1948. https://www.un.org/en/about-­us/ universal-­declaration-­of-­human-­rights

Religious Documents Papal Encyclicals. All available: https://www.papalencyclicals.net/ Quot aliquantum, 1791, Pius XI. Mirarivos, 1832, Gregor XVI. Quanta cura, 1864, Pius IX. Syllabus errorum, 1864, Pius IX. Libertas praestantissimum, 1888, Leo XIII. The Edict of Milan (313). https://www.earlychurchtexts.com/public/edict_of_milan.htm

Chapter 3

State-Religion Separation in the Multireligious Context of Indian Democracy: An Empirical Study Francis-Vincent Anthony

The Indian population is a unique blend of the most contrasting and overlapping features of religion, language, ethnicity, culture, caste, etc. The intersecting features of diversity meld in such countless permutations that the texture of complexity is unimaginable and paradoxically, taken for granted by the natives. The intricate Indian diversity has been shaped by historical dynamics and geographical extensions of vast proportions. Picking up the strand that interests us in this paper, namely, religion, we find a major stream of Hindu religious traditions, with Buddhism, Jainism and Sikhism branching off from it, alongside the tribal or cosmic religious traditions. Then there are the Semitic religions, i.e. Christianity and Islam, that have taken root in the Indian soil right from their origin. The complexity of these religious identities is compounded by the fact that each of these religious communities embodies different linguistic, ethnic and caste features. This is the case with each of the other differentiating features (Bajpai, 2017). Against the backdrop of the country as a whole, a community representing one of these features may emerge as majority, while having a minority status in some federal state or district. If we consider the religious identity of the population, Christians (2.3% in India, 6.1% in Tamil Nadu) and Muslims (14.2% in India, 5.9% in Tamil Nadu) form minority communities, while Hindus make the vast majority (79.8% in India, 87.6% in Tamil Nadu). Evidently, there are other smaller religious minority communities in India, such as the Sikh (1.7%), Buddhist (0.7%), Jain (0.4%) and others (0.7%).1 History attests that India was never one nation with one religion; even under the Mughal rule or the British colonialism, other religions were not wiped out, and now with the  See http://www.censusindia.gov.in/2011census/C-01.html

1

F.-V. Anthony (*) Faculty of Theology, Salesian Pontifical University, Rome, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F.-V. Anthony, H.-G. Ziebertz (eds.), Human Rights and the Separation of State and Religion, Religion and Human Rights 10, https://doi.org/10.1007/978-3-031-33998-1_3

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growing religious nationalism, does India risk becoming a Hindu nation? Our concern in this paper is to explore how religion’s rights relative to the minority Christian and Islamic communities and majority Hindu community are demarcated in the secular context of Indian democracy, and how these rights are perceived by Christian, Muslim and Hindu college students in Tamil Nadu. With this scope in mind, in the theoretical part, after having clarified the place of religion in the context of Indian secularism (Sect. 3.1), we proceed to specify religious freedom as affirmed by human rights tradition and by Indian Constitution (Sect. 3.2). We shall then consider how religions, namely, Christianity, Islam and Hinduism, exercise their function in the Indian society (Sect. 3.3). The empirical part delineates the conceptual framework and the research questions (Sect. 3.4), besides the research design (Sect. 3.5). This is followed by an account of the emerging results (Sect. 3.6) and their significance (Sect. 3.7).

1 Religion’s Place in Indian Secularism In the long-drawn process of Indian freedom struggle, two contrasting views on nationalism took shape: one sought to define national identity as fundamentally Hindu, which included the adherents of Indic religions, i.e., Buddhists, Jains and Sikhs, but excluded Muslims and Christians. The publication of Hindutva (1923) by V.D. Savarkar and the formation of Rashtriya Swayamsevak Sangh (RSS) in 1925 mark the origin of Hindu nationalism. The second, a more inclusive trend, spearheaded by the leaders of the Indian National Congress – founded in 1885 – placed the emphasis on ‘unity in diversity’ as against the communal discord prodded by the British colonialism (Bajpai, 2017, 3–6). The three stalwarts of the nascent India, namely, Mohandas Karamchand Gandhi (1869–1948), Jawaharlal Nehru (1889–1964) and Dr. Bhimrao Ramji Ambedkar (1891–1956), each with his own understanding of the nexus between religion and politics, contributed to a vision that currently seems to be under threat (Van der Ven & Anthony, 2008). Convinced of the necessity of a religious or philosophical vision for politics, Gandhi proposed the ideal of sarvodaya, namely, universal brotherhood and global welfare, going beyond familial, ethnic, caste, linguistic and national boundaries. In its turn, sarvodaya implied antyodaya, that is, attention be paid to the lowliest and the exploited, like the dalits, whom Gandhi regarded as Harijans (children of Hari/Vishnu). Interlinking political and religious goals into sarvodaya, Gandhi acknowledged the value of all religions and the integral liberation of all peoples (Kadankavil, 2001, 297). Nehru’s ideal of secularism referred to the democratic process founded on the equality of individuals, world peace through nonalignment and humanism embracing the entire human family. In other words, attracted by the ethical norms of Western humanism and the contributions of scientific progress, Nehru upheld a secular vision. Sidestepping the communal interests of both Hindu and Muslim parties at the Karachi Congress (1931), he underlined the secular principle  – which would later become the basis of the Indian Constitution – that every citizen should

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enjoy freedom of conscience and the right freely to profess and to practice any religion. In his view, a secular state does not have a state religion, nor does it favour one religion over the others (ibid. 302–311; Bajpai, 2017, 5). Ambedkar’s political thinking rests on the convictions that rights are not so much protected by laws as by the social and moral conscience of people and that a democratic form of society is essential for a democratic system of government. Lashing out his critique of religions, particularly of Hinduism which imposed an unjust social structure, Ambedkar found in the pristine form of Buddhism a ‘secular’ religion cherishing equality, fraternity and liberty, consistent with the modern liberal philosophy (Kadankavil, 2001, 311–320). Gandhi being a deeply spiritual person, proposed a spiritual secularism based on Sarva dharma samabhava (goodwill towards all religions). Nehru, a self-declared agnostic, advocated a nonreligious perspective based on science and socialism, guaranteeing equal rights and opportunities for all (Cherian, 2007; Khilnani, 2007). Unlike Nehru, Ambedkar still saw the value of an Indian religion, Neo-Buddhism, for the establishment of civil and political rights and nation-building. In this vein, Periyar E.V. Ramasamy, a high-profile leader from Tamil Nadu, held that ‘a belief or practice deserved respect only if it enhanced the knowledge and self-respect of every group in society, aiding them to reach their full potential as human beings’ (Richman & Geetha, 2007, 72). Along these lines, secularism as enshrined in the Indian Constitution – elucidated in the next section – entails state’s neutrality and impartiality towards all religions, that is, taking equidistant stand with regard to all religions while recognizing the value of religion in society. Hence, secularism in India does not imply an irreligious or antireligious stand, but protection of all religions (Rajan & Needham, 2007; Tejani, 2007) and politics of inclusion (Anthony & Sterkens, 2018). As Sen (2005, 294–316) underscores, the ‘symmetric treatment’ of religions is the hallmark of a truly secular state in a religiously plural world. But such a secular stand is not without flaw for it can easily give way to communal claims and clashes between majority and minority religions (Nandy, 2007; Menon, 2007; Chatterjee, 2007; Pandey, 2007; Prakash, 2007; Parekh, 2001).

2 Religious Freedom in the Human Rights Tradition and in the Indian Constitution The historical development of religious freedom in the Western context found its place in the constitutions of various states from the eighteenth century onwards and eventually in the United Nations Declaration of Universal Human Rights (Van der Ven et al., 2004, 480–485). Successively it was enshrined in the Indian Constitution, making it a secular state. On 10 December 1948, India was one of the 48 out of 58 (8 abstaining and 2 nonvoting) countries that endorsed the human rights declaration. As indicated below, there are few but essential references to religion in the human rights declaration.

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Even as religion cannot set limits to the rights and freedoms set forth in the human rights declaration (Art. 2), the right to freedom of thought, conscience and religion denotes freedom to change one’s religion or belief, and freedom, either alone or in community, in public or private, to manifest one’s religious belief and practice, in worship and observance (Art. 18). The right to education that has some bearing on religion, firstly, implies providing free education at the elementary and fundamental levels, making technical and professional education generally available and higher education accessible on the basis of merit (Art. 26:1). Secondly, education should aim at the full development of the human personality and the endorsement of human rights and fundamental freedoms. In fostering understanding, tolerance and friendship among national, racial and religious groups, education should contribute to peace (Art. 26:2). Thirdly, parents have a right to choose the kind of education that shall be given to their children (Art. 26:3). In tune with these human rights directives, the Constitution of India (ratified on 26 November 1949) dedicates two articles (Art. 15, 16) to forestall discrimination on the ground of religion, four articles (Art. 25–28) to the freedom of religion and two articles (Art. 29, 30) to the cultural and educational rights of minorities, including religious minorities. The secular requirement of the statereligion separation features in these articles, though the term ‘secular’ itself was introduced in the Preamble to the Constitution much later by the 42nd Amendment Act of 1976, making India a ‘sovereign socialist secular democratic republic’. In specifying the right to equality, the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth (Art. 15); not only the state is not to discriminate people (Art. 15:1), but no citizen is to be discriminated on these accounts in having access to public structures, common resources (Art. 15:2) and public employment (Art. 16). These articles underscore that religion cannot become the ground of discrimination. Yet, the fear of discrimination in higher education and public employment has even led the new generations among the minority communities to give more generic Indian names to their children so that their religious identity is not explicit in their names. As for the specific aspect of religious freedom, the Constitution affirms that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion’ (Art. 25). In this vein, Article 26 guarantees every religious denomination or any section thereof ‘the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law’. The underlying condition is that these rights are particularly subject to public order, morality and health. In other words, the state has to ensure that religious freedom does not go against public order, morality and health. For example, the tragic situation of the COVID-19 pandemic in India is blamed on the government for its failures in health care system and in regulating public manifestation of religious celebrations, Kumbha Mela pilgrimage being a case in point.

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To forestall any doubt, under Section 2 (c) of the National Commission for Minorities Act (1992), five religious communities, namely, Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians), have been declared as minority communities through a Government Notification issued in October 1993. The Constitution (Art. 30:1) guarantees these religious minorities and those based on language, the right to establish and administer educational institutions of their choice. However, no citizen is to be ‘denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them’ (Art. 29:2). On the part of the state, in granting aid to educational institutions, it is not to ‘discriminate against any educational institutions on the ground that it is under the management of a minority, whether based on religion or language’ (Art. 30:2). Hence, on the one hand, the state is not to discriminate the minority educational institutions, and on the other, educational institutions supported by state funding are not to make discrimination in admitting students. While no religious instruction is to be provided in the educational institutions wholly maintained by state funds, it can be offered in those institutions established under any endowment or trust that requires that religious instruction be imparted (Art. 28:1–2). At the same time, the person attending the educational institution recognized by the state or receiving aid out of state funds is free (in the case of a minor with the guardian’s consent) to take part in any religious instruction or religious worship provided by such institutions (Art. 28:3). Religious sensitivity of the Indian Constitution is evident in that it makes a mention of God in the formula of oath taking: ‘I,…do swear in the name of God that I will faithfully execute the office of President of India….’ (Art. 60). Similar mention of God is found in the oaths taken by the Vice President (Art. 69), Governor (Art. 159), Minister for the Union or of State, Secretary, Member of the Parliament, Member of the Legislature of a State, judges of the Supreme Court and judges of the High Court. The Indian Constitution also sought to address the religio-cultural protection of minority religious communities through legal pluralism in family or personal laws specific to Muslims, Christians and Parsis. Yet it is felt that the Indian legal system is only nominally secular, as it operates on the basis of Hindu value system (Menski, 2007, 45; Anthony & Sterkens, 2019a, b). ‘Although group-differentiated rights have expanded in several areas, a lack of elaboration of their rationale through public debate and, in terms of their society-wide benefits, has left minorities vulnerable to resentment and backlash, as witnessed in the current dominance of the Hindu Right’ (Bajpai, 2017, 10). Having highlighted the state-religion rapport from the perspective of the former, we proceed to clarify it from the side of latter.

3 Religion’s Function in the Indian Society Generally, it is the fact of being born in a specific family that makes one Christian, Muslim or Hindu. In other words, it is by assimilating the belief and value system of the family that people adhere to the religion of ancestors. While among Christians

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there is the ritual of baptism that marks one’s official entrance to the Christian community, in the case of Muslims and Hindus, there are no formal initiation rituals. One is just born a Hindu and remains a Hindu; unless one formally declares one’s allegiance to another religion like Islam or Christianity. As a way of life, Hinduism allows individuals to seek their own path, ensuring considerable flexibility in ethics and values with a variety of practices and beliefs (Menski, 2007, 1–2), which is not the case with Islam or Christianity. These traits – further elaborated below – determine to a great extent not only the rapport among the three religions but also point to their vision of human dignity, religious freedom and their role in society, particularly in the educational sector, crucial for the socioeconomic wellbeing of the people (Anthony & Sterkens, 2020). Diverse manifestations of these religious traditions are to be found in the public sphere ranging from literature, art, music, drama, dance, films and websites to health services and public protests.

3.1 Christian Tradition It is the biblical Christian belief that God created human beings in his image and likeness (Genesis 1:26–27) and has shown his boundless love in an eternal covenant sealed with the birth, death and resurrection of Jesus. These beliefs disclose the dignity of every human person. Although Christianity is not tied to any particular ethnic group, culture or nation, its growth and expansion have been particularly associated with Europe and its colonialism. So much so, in the Asian/Indian context, it has been depicted as the religion of the Western world (Brown, 2007, 257–260). With the growth of Christianity in South America, Africa and Asia, inculturising the Christian faith and acknowledging the role of native ecclesiastical authorities have emerged as indispensable, particularly after the Second Vatican Council in the Catholic Church (Anthony, 1997). Likewise, the exclusive approach to other religious traditions that characterized the Christian communities for centuries has given way progressively to approaches such as inclusive-fulfilment monism, commonality pluralism and differential pluralism, in search of an ever-profound understanding of the interrelated divine-human-cosmic reality (Anthony et  al., 2014, 117–142). During the European past, Christian hierarchy has often gone hand-in-glove with the state authorities to endorse and support each other’s decisions and actions. Such church-nationalism/ethnicity rapport differs according to the ecclesial traditions, as that of the Catholic Church, Anglican Church or Eastern Orthodox Church. By and large, Christians think of their duties more in relation to the Church than to the state. When the state authority goes unethical, Christians feel that it is their duty to challenge it. Liberation theology in this sense raises its voice for justice in support of the oppressed (Brown, 2007, 224f, 265–267). Instead of merely maintaining the status quo at the political and social levels, transforming the society and the world at large through intra-religious and interreligious engagements (Anthony, 2012) is now viewed as the principal task of Christianity.

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With the view to spreading the good news and promoting cultural development, both in the European context and in the mission lands, Christianity has played a crucial role in the educational field by establishing schools, colleges and universities. Only from the later part of the nineteenth century did the states begin to take responsibility for the educational institutions (Brown, 2007, 234–236). For instance, the Santa Fe School (1540) in Goa was the first formal Christian educational enterprise anywhere outside Europe, to be followed by many others in South India.2 With the view to making the young good Christians and responsible citizens, Christian educational institutions have provided, and continue to provide, high-level qualification and ethic-religious formation to both Christian youth and others.

3.2 Islamic Tradition According to the Islamic belief, human beings are the most noble of God’s creation with material, intellectual and spiritual attributes. That human beings have been appointed by God as vicegerent, points to their dignity and their role in the cosmos. Viewing diversity as a work of God and as a blessing, Islam manifests a spirit of inclusiveness and mutual acceptance towards other linguistic, ethnic and religious groups, particularly towards the people of the book, namely, Jews and Christians; for in its view, God’s grace and salvation are open to all. The common origin and the innate dignity of human beings require that their ethical life be founded on moral reasoning, choice and accountability (Nanji, 2007, 278f, 321–325, 332–334). Historically the task of Muslim rulers has been that of defending the faith, the land and the people, besides offering protection to other minorities, with the view to promoting peace and justice. As citizens of nation-states, even when they are a minority community, Muslims’ allegiance is to the governing authority on the basis of legal codes that define their duties and responsibilities, objecting to these when they are not in accordance with their religious values (Ibid., 294–296, 326). Besides its contribution to the sociopolitical realms, Islam also played a vital role in the educational sphere. To advance knowledge and learning, rulers made provision for public libraries, such as the historical Bayt al Hikma (Houses of Wisdom) in Baghdad and Cairo during the Islamic Golden Age (eighth to fourteenth century). In addition to the teaching of the Qur’an in Arabic, the jami or university and madrasas were set up for higher learning in law, philosophy and literature, mathematical, physical and life sciences, alchemy and astrology. Traditional forms and new educational models have merged in the present-day educational institutions to transmit the Islamic heritage to the new generations (Ibid., 302–304).

  CBCI Office for Education and Culture: http://www.cbcieducation.com/school-data.aspx (accessed 24-05-2021). 2

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3.3 Hindu Tradition Rather than viewing the human being as an autonomous individual, Hindu tradition considers human reality as an interlinked part of the cosmic whole. Accordingly, human dignity is viewed as based on the advaitic (non-dual) consciousness of the transcendent-immanent reality. This represents a unique secularist strand in Hinduism, namely, ‘transcendental secularism’ (Nayak, 1992). In this vein, the concept of dharma lays emphasis on duties rather than human rights, for one’s rights are to be ensured by the duties of others, given the principle of interlinkedness. In the dharmashastra literature, monarchy is viewed as the normal form of government, determined by rajadharma, namely, by complex set of duties rather than rights of the ruler. It was ruler’s task to respect the religious and social customs of the conquered land. Likewise, in the contemporary democratic context, those in power are viewed as accountable to the people and to the dharma (Menski, 2007, 6–9; Thotakara, 2001). Recognizing the limits of human knowledge, Hinduism places more emphasis on experience and action than on belief. The cosmic worldview and the nondogmatic nature of Hindu belief and worship systems allow for openness and respect for other religious traditions. Since proselytising is a rare phenomenon among Hindus, it is viewed as unacceptable aggression when others, like Christians, engage in it (Menski, 2007, 23f, 44f). The public expression of Hindu religiosity can be seen in the wayside shrines and temples, pilgrimages and festivals. Religious procession of Hindus – as in the case of other traditions – can give rise to conflict, if it becomes a provocative affirmation of one’s religion in a neighbourhood where the majority professes another. Traditionally education of the young (brahmacharin) was under a guru (master), and it aimed at forming an integrated personality rather than cater merely to intellectual growth. The long-standing interest in education in the Indian context is attested by the Nalanda University (Mahavihara) – an ancient and revered Buddhist monastery  – that was perhaps the earliest and greatest centre of learning in the world, from the fifth to the twelfth century CE. In the contemporary context, however, the task is entrusted more to the family and to the formal educational system. Education in the Indian context has now become a path to prosperity and higher social status, overcoming the traditional religious, caste and occupational barriers. It has also become a basis for the emancipation of women and transformation of the society.

4 Conceptual Framework and Research Questions On the basis of the foregoing theoretical elaborations and in consonance with the scope of our research, the conceptual model (Fig.  3.1) focuses on state-religion separation as dependent variable. With the view to examining the attitude of the

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young, we have represented state-religion separation in terms of state’s obligations with regard to religion’s right in the sphere of education and public life and state’s autonomy in the sphere of education and public life. Religious attitudes, which constitute an independent variable in this study, encompass personal and contextual aspects. The personal aspects include religious beliefs, religious experiences, and religious practices, whereas the contextual aspects of religious attitude cover the functions of religion in society, approaches to religious pluralism and trust in religions. The other independent variable, experience of democracy, includes the value of human dignity, functioning of the state and political orientation of the individual. The background features comprise personal profile and psychosocial traits. Thus, as shown in Fig. 3.1, the conceptual model used to conduct this study comprises three sets of variables: state-religion separation (dependent variables), attitudes towards religion and democracy (independent variables) and personal profile and psychosocial traits (background variables). The conceptualization and operationalization of these variables form part of the International Empirical Research Project ‘Religion and Human Rights’ (2012–2021) coordinated by prof. Hans-­ Georg Ziebertz of the Würzburg University. Hence, we limit ourselves to a synthetic presentation of the operationalization of these variables in the section on measuring instrument. The questions that we seek to address in this research are the following: 1 . What understanding of state-religion separation emerges among our respondents? 2. Are there significant differences in the levels of agreement with state-religion separation between Christian, Muslim and Hindu students?

Background variables

Personal profile • Age • Sex Psychosocial traits • Right-wing authoritarianism • Social dominance orientation • Empathy

Dependent variables

Independent variables Personal religious attitudes • Religious beliefs • Religious experiences • Religious practices Contextual religious attitudes • Function of religion • Religious plurality • Trust in religions Experience of Democracy • Value of Human dignity • Functioning of the state • Political orientation

State-religion separation

• • •

State’s obligations with regard to religion’s right in education. State’s obligations with regard to religion’s right in public life. State’s autonomy with regard to religion in education and public life.

Fig. 3.1  Conceptual model: state-religion separation (dependent variables), religious attitudes and experience of democracy (independent variables), and personal profile and psychosocial traits (background variables)

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3. Which independent variables related to religion (personal and contextual religious attitudes) and democracy (value of human dignity, functioning of the state and political orientation) correlate with state-religion separation among Christian, Muslim and Hindu students? 4. Which background variables (personal profile and psychosocial traits) correlate with state-religion separation among Christian, Muslim and Hindu students? 5. Which independent variables related to religion and democracy, and which background variables emerge as predictors of state-religion separation among Christian, Muslim and Hindu students?

5 Research Design In this section, we first briefly sketch the sample and the process of data collection, before proceeding to the instrument we used in the study, and finally to the statistical methods we chose for data reduction and analysis.

5.1 Sample and Data Collection With the view to examining students’ attitudes towards state-religion separation and how these may be influenced by their attitudes towards religion and democracy, we draw on the data collected in Tamil Nadu, for the Religion and Human Rights Project mentioned above. We decided to contact around 1200 respondents among whom men and women, and the three religious traditions were equally represented and hence used a stratified quota sampling with random selection of respondents in each stratum. The respondents of the study primarily included undergraduate students of seven Arts and Science colleges. Two colleges were chosen from each of the three regions and one from the state capital of Tamil Nadu, resulting in the following number of respondents from different regions: northern region (308), western region (304), southern region (303) and Chennai (300). The total sample comprised 1215 respondents: 407 Christians, 408 Muslims and 400 Hindus. There were 614 male and 601 female respondents, and they mostly belonged to the age group 17–20 years. This is an appropriate age group to study attitude towards state-religion separation, as these young people prepare to take their place in the societal life.

5.2 Measuring Instrument The objective of our research is to study the state-religion separation and how it may be influenced by the religious attitude of students and their experience of democracy. With this in mind, we shall provide a brief account of the measuring

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instrument resulting from the operationalization of state-religion separation, religious attitude, experience of democracy and personal background features. The dependent variable of state-religion separation has been operationalized from the perspective of state’s obligations with regard to religion in the sphere of education (four items) and public life (two items) and state’s autonomy with regard to religion in the sphere of education and public life (two items). In a multireligious context, religious beliefs can refer to a personal or a nonpersonal God. The belief in a personal God can be represented in terms of theism, pan-­ en-­theism and natural pan-en-theism. Instead, the belief in a nonpersonal God can be represented in terms of deism, pantheism and meta-theism. Factor analysis of 12 items representing these beliefs results in 2 factors, namely, belief in personal God and belief in nonpersonal God.3 Based on the contemporary distinction between religion and spirituality, experiences denoting them were represented as faith experience and spiritual experience. However, factor analysis brought spiritual experience and faith experience into one meaningful and reliable factor, ‘religious experience’.4 This is significant in a profoundly religious Indian context attentive to spiritual experience. Religious practice in our research has been limited to verifying the frequency of prayer. Among the contextual religious attitudes, our research considered three sets of variables: function of religion in society, approach to religious pluralism and trust in one’s own and others’ religion. As for the functions of religion, those related to public opinion, national culture, prophetic voice, spiritual service and cultural conformity were taken into account. Factor analysis of the eight items evinced factors representing two meaningful functions of religion, namely, ‘integral transformative function’ and ‘cultural conformity function’.5 In a pluralistic context, the followers of various traditions may take broadly two approaches as to how these contribute to flourishing life: exclusivism as affirming the singularity of one’s religion and pluralism as appreciation of other religions in this regard. A multireligious context brings into question not only how one may  The independent variables – except for those consisting of single items – are results of rigorous procedure of factor analyses. However, we do not report on the factor analyses of the independent variables, except for two cases where new configurations emerge: religious experience and integral transformative and cultural conformity functions. 4  Factor analysis brought the two items representing spiritual experience (i.e. people say that they have had an experience of profound inner peace and that they have had an experience of oneness with all things) and the two representing faith experience (i.e. people say that their faith has often helped them not to lose courage in particular situations and that their religion gives them a certainty in life that they otherwise would not have) into one meaningful and reliable factor ‘religious experience’ (α .72). 5  The integral transformative function included six items (α .69): Religions should try to influence public opinion on social problems; should publicly stand up for the underclass; should take joint responsibility with the state for the national culture; should take public responsibility for the societal development; should take responsibility for their members’ spiritual growth and should create places for deep spiritual experiences. The cultural conformity function (α .39), instead, included two items: religions should always keep up with current social trends and should go along with changing ideas in society. 3

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interpret another religion but also the trust one may place in one’s own and other’s religion. Human dignity is the basis of democracy, and it can be considered from three different perspectives: as resulting from merit, as depending on the moral behaviour and as intrinsic to human beings. Besides this, experience of democracy has been represented by the functioning of the legislative, executive and judicial powers of the state and the political orientation of individuals. Among the background variables, besides the personal profile of age and sex, psychosocial traits of right-wing authoritarianism, social dominance orientation and empathy have been considered.

5.3 Methods of Analysis With the view to understanding the general tendency of the respondents concerning the state-religion separation, mean and standard deviation for each of the eight items were calculated. In order to respond to the first research question, principal axis factor analysis with varimax rotation was undertaken. Two reliable factors of religion’s rights and one factor of state’s autonomy emerged. To test for significant differences between Christian, Muslim and Hindu students in their attitude towards state-religion separation, Scheffé’s test was employed. Simple correlation analysis evinced some strong and moderately strong correlations (Pearson’s r) of independent variables representing religion (personal and contextual religious attitudes) and democracy (value of human dignity, functioning of the state and political orientation) with state-religion separation factors. Similarly, correlation analysis was employed to elucidate the associations of personal profile and psychosocial traits with state-religion separation. Finally, with the view to identifying the predictors of state-religion separation, multiple regression analysis was undertaken with independent and background variables. We included those independent and background variables, which showed no less than a moderate correlation (r ≥ 15) with the factors of state-religion separation in at least one of the three religious groups.

6 Empirical Results Taking up the research questions in order, we shall present the agreement tendency with regard to state-religion separation and ascertain if there are significant differences in agreement tendency of the respondents on the basis of their religious affiliation. We shall then verify if independent variables of religion and democracy correlate with respondents’ understanding of state-religion separation, and if there are any predictors emerging.

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Research Question 1  What understanding of state-religion separation emerges among our respondents? Our respondents were invited to express their view of the state-religion separation considering state’s obligations with regard to religion in the area of education (items 1, 2, 3, 4) and public life (items 5 and 8) and its autonomy with regard to religion in the area of education and public life (items 6 and 7). The mean scores (Table 3.1) show that respondents tend to agree that students be offered time, space and room in schools for their prayers (item 1: mean 4.05), that the state respect the right of religions to establish schools (item 2: mean 3.66), provide enough space for religion to be taught in schools (item 3: mean 3.47) and not prevent female teachers from wearing a head scarf for religious reasons (item 4: mean 3.40). Overall, our students agree to religion’s rights in education. Concerning religions’ rights in the public sphere, namely, the missionary activity of both majority and minority religions, our respondents manifest agreement tendency (item 5: mean 3.40). Instead with regard to public manifestations by the majority and minority religions, they only show positive ambivalence (item 8: mean 3.22). Overall, the students agree to the activity of religious propagation without state interference, while they seem rather uncertain about religion’s right to public manifestation. Likewise, the respondents tend to be uncertain when it comes to parliament’s autonomy to decide school laws (item 6: mean 3.33) and ethical questions even if religious leaders may be consulted (item 7: mean 3.33). Overall, we find that students are uncertain about state’s autonomy in deciding school laws and ethical

Table 3.1  Descriptive (mean and s.d.) of attitude towards state-religion separation for all respondents (in descending order of mean) 1. Students should be offered time, space and a room in schools to do their prayers 2.  The state should respect the right of religions to establish schools 3. The government should provide for enough space that religion could be taught in schools 4. The state should not prevent female teachers from wearing a head scarf for religious reasons 5. The state should not interfere with missionary activities in both the majority and minority religions 6. Parliament should decide on school laws regardless of religious leaders’ opinions 7. Politicians may consult religious leaders about any ethical problem in the country but should decide independently by themselves 8. The state should stay out of the public manifestations by the majority and minority religions

N mean s.d. 1204 4.05 1.25 1207 3.66 1209 3.47

1.31 1.32

1208 3.40

1.43

1204 3.40

1.25

1207 3.33

1.26

1209 3.33

1.23

1207 3.22

1.23

Interpretation of means: 1.00–1.79: strongly disagree; 1.80–2.59: disagree; 2.60–3.39: not sure (negative/positive ambivalence); 3.40–4.19: agree; 4.20–5.00: strongly agree

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Table 3.2  Factor analysis (PCA. Oblimin rotation with Kaiser Normalization) with communalities (h2), percentage of explained variance and reliability (Cronbach’s alpha) of state-religion separation for all respondents 1. Students should be offered time, space and a room in schools to do their prayers 2. The state should respect the right of religions to establish schools 3. The government should provide for enough space that religion could be taught in schools 8. The state should stay out of the public manifestations by the majority and minority religions 5. The state should not interfere with missionary activities in both the majority and minority religions 6. Parliament should decide on school laws regardless of religious leaders’ opinions 7. Politicians may consult religious leaders about any ethical problem in the country but should decide independently by themselves Cronbach’s alpha Number of valid cases

F1 .681

F2 .265

F3 .076

h2 .53

.693

.010

−.319

.54

.753

.041

−.112

.57

−.017 .760

−.141

.60

.253

.746

−.070

.58

.121

−.018 −.839

.71

.129

.272

−.665

.49

.523 1191

.347 1197

.356 1204

Explained variance = 57.46%; F1 = Religions’ right in education; F2 = Religions’ right in public life; F3 = State’s autonomy in education and public life

questions, as well as religion’s rights in the public sphere; instead, they agree to religion’s rights in the educational sphere. Factor analysis (PCA) of the eight items (Table 3.2) brings to light three meaningful factors moderately reliable (as shown by the Cronbach’s alpha) on account of the items being just three or two, yet explaining over 57% of the total variance. Only item 4 referring to female teachers wearing a head scarf for religious reasons  – mostly an Islamic custom  – had to be eliminated due to the difference in factor loadings not meeting the criterion (>.15). The other three items referring to religions’ right in education load in the first factor, named as ‘Religion’s right in education’ (F1 with α .523). Two items that load on second factor (F2 with α .347) stand for ‘Religion’s right in public life’. Instead, the two items representing ‘State’s autonomy in education and public life’ load on factor three (F3 with α .356). It is significant that religion’s right in the two spheres, namely, education and public life, emerge as separate factors as well as state’s autonomy in these spheres as a distinct factor. Research Question 2  Are there significant differences in levels of agreement with state-religion separation between Christian, Muslim and Hindu students? When we consider the religious affiliation of the students, we find some significant differences (Table 3.3) in their understanding of the state-religion separation. Although the three religious groups agree to religion’s right in education, Muslims (mean 11.81) affirm it more strongly and differ significantly from Christians (mean

3  State-Religion Separation in the Multireligious Context of Indian Democracy…

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Table 3.3  Levels of agreement (mean and standard deviation) with regard to state-religion separation for Christian, Muslim and Hindu students and comparison of means between the groups (Scheffé’s tests) N mean s.d. Religion’s right in education (three items) Christians 407 11.15 2.70 Muslims 405 11.81 2.72 Hindus 398 10.37 2.84 Religion’s right in public life (two items) Christians 407 6.93 1.95 Muslims 407 6.35 1.81 Hindus 400 6.45 2.03 State’s autonomy in education and public life (two items) Christians 407 6.61 2.09 Muslims 406 6.79 1.75 Hindus 398 6.54 2.04

Muslims

Hindus

*

** **

**

*

Five-point Likert-scale from total disagreement (1) to full agreement (5) Intergroup differences are significant at p