If you haven’t already, don’t forget to RSVP for tomorrow night’s event at the Harvard Club. [Tweet This!] . Marc and I will discuss his new book, The Tragedy of Religious Freedom. Hope to see you there.
I am greatly looking forward to participating in a conference next month called, “The Politics of Religious Freedom,” and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law–Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.
The title of my panel is “Religion and Politics After Religious Freedom.” With the organizers’ permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law’s distinctiveness as both a practical and an academic discipline. I welcome your thoughts.
My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.
The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.
It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.
In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR). To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.
Francisca Pérez Madrid (University of Barcelona) has organized what looks to be a wonderful conference next month in Jerusalem, “Religious Diversity Governance: Territorial and Personal Law.” The conference will take place at Hebrew University from October 2-4. Here’s the description:
Because we regard the places we live as the centre of our legal structure and relations, the concept of law has always been closely tied to the notion of territory. But because our social life extends beyond the relations each person has with a territory and makes us members of larger communities and social groups, we also need to establish systems of peaceful coexistence. While territoriality and personality are therefore dramatically different legal systems, they can still operate side by side as “communicating vessels” which influence and complement one other like two sides of the same coin and two different ways of applying law.
For countries characterised by internal cultural, ethnic or religious diversity, the possibility that we might make the territorial and the personal principle more mutually compatible becomes particularly interesting and this is where the State of Israel occupies a unique position in the world. Maintaining as it does the Millet system of law, which it inherited from the Ottoman Empire and which grants each of the State’s recognized ethno-religious communities exclusive or concurrent jurisdiction in areas of personal and family law, the question becomes the following: Can the application of the personal principle to diverse groups facilitate peaceful coexistence in a plural state? Our Symposium will seek to answer this and to provide an opportunity to debate the resolution of conflicts in which human rights are put at risk.
The conference program is here.
An update on the California headscarf litigation I discussed earlier this month. Abercrombie & Fitch has settled the lawsuit and agreed to allow Muslim employees to wear headscarves while on the job. A federal district court in California recently ruled that A&F’s refusal to allow headscarves on the job violated US employment discrimination law. A&F has agreed to pay the plaintiff in the case, Hani Khan, $48,000 and unspecified attorneys fees. The Guardian has the full story, as well as information about other headscarf litigation against A&F.
From The Spectator, a post about a recent panel at the National Liberal Club in London on the under-reporting of violence against Christians in the Middle East:
Some of this has been reported, but the focus has been on the violence committed against the Brotherhood. Judging by the accounts given by one of the other speakers, Nina Shea of the Center for Religious Freedom, the American press is even more blind, and their government not much better; when Mubarak was overthrown one US agency assessed the Muslim Brotherhood as being ‘essentially secular’. . . .
Without a state (and army) of their own, minorities are merely leaseholders. The question is whether we can do anything to prevent extinction, and whether British foreign policy can be directed towards helping Christian interests rather than, as currently seems to be the case, the Saudis.
Monica Lugato (LUMSA-Rome) has posted a new article, National Policy Towards Religious Associations within the Framework of European Law, on SSRN. The abstract follows:
The article discusses the current status of policy towards religion as a national competence within the framework of European law. It submits on the one hand that, in the present stage of European integration, core decisions concerning the public dealing with religion and religious communities are inherently a national policy domain. However, because religion is at the same time an element of the Member States’ national identities, one of the sources of the founding values of the European Union and a fundamental freedom both nationally, internationally and within EU law, the scope of such inalienable policy domain is shaped, through an on-going process, not only by national law implementing national policy choices on religion, but also by EU law aimed at preserving national identities and the identity and specific contribution of religious (and philosophical and non-confessional organizations) associations, as they have historically and culturally developed within the national States, while at the same time safeguarding the EU framework on fundamental freedoms and fundamental rights; and, finally, by international rules on freedom of religion limiting Member States’ and the EU’s freedom in the same area.
Rex Adhar (University of Otago, New Zealand) has published an article, “Is Secularism Neutral?”, in this month’s edition of Ratio Juris (subscription required). The abstract follows:
This article argues that secularism is not neutral. Secularization is a process, the secular state is a structure, whereas secularism is a political philosophy. Secularism takes two main forms: first, a “benevolent” secularism that endeavours to treat all religious and nonreligious belief systems even-handedly, and, second, a “hostile” kind that privileges unbelief and excludes religion from the public sphere. I analyze the European Court of Human Rights decision in Lautsi v Italy, which illustrates these types. The article concludes that secularism as a political philosophy cannot be neutral, and the secular state is not neutral in its effects, standpoint, governing assumptions or treatment of religious truth claims.