Band 10, Heft 1 - Public Religion, Private Communities and Human Rights

This article considers the effects of secularization on the American constitutional law of religion. It argues that, in a secular age, religious belief becomes a matter of subjective opinion to be treated in much the same way as other opinions. Claims that religious beliefs occupy a privileged legal position become problematic, once those opinions are understood to be merely subjective. Free exercise jurisprudence tends to collapse into the jurisprudence of free speech: We protect religious speech because it is speech, not because it is religious. In establishment clause jurisprudence, endorsement becomes the focus of attention. If religious belief can never be more than a subjective opinion, then it is measured like other opinions: we want to know who supports it, not whether it is true. Thus, the endorsement test asks whether the state is asserting a religious belief as its own. Once religious belief is understood as subjective opinion, its natural place will appear to be within, not outside of, politics, for interest groups are defined by the opinions they pursue. Perhaps ironically, the increasingly visible role of religious groups in American politics is an expression not of how seriously we take religion, but of how much less serious it has become. No longer about the truth of the human condition, it is merely another opinion.

The Canadian Charter of Rights and Freedoms is globally unique in that it includes explicit commitments to the values of multiculturalism and gender equality. Section 27 of the Charter provides that: “[It] shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” whereas section 28 states that: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” The Canadian experiment (as I will call it) offers us a rare, living laboratory in which a thriving constitutional system searches for legal and institutional pathways to addressing seemingly incongruous demands, obligations, rights, and protections. This article identifies a range of concrete legal responses developed and articulated by Canadian judges and other policymakers in response to claims for fair inclusion raised by members of religious minority communities. Contributing to ongoing theoretical and legal debates, I will conceptualize three variants of such fair inclusion claims. I will then assess what the Canadian multicultural experiment can teach other comparable countries about principled and pragmatic responses to the challenge of “living together” in shared spaces such as workplaces, schools, courthouses, and during citizenship ceremonies. The discussion will then explore the promises and pitfalls of a jurisprudential approach that resists the hierarchy of rights formulas, and tries instead to cover all grounds so as to neither erase diversity nor sacrifice equality.

Constitutional law and religious law are often portrayed as diametrically opposed domains. While there are obvious foundational differences between the two domains, the simplistic portrayal of religious law as altogether irrelevant to contemporary discussions about engagement with the laws of others provides an all-too-easy excuse for contemporary constitutional discourse to blind itself to religious law’s rich history and doctrinal innovation. Alongside other possible new horizons of interdisciplinary inquiry, religious law may provide a fertile terrain for placing contemporary debates in (comparative) constitutional law in a broader context. In particular, few authors have paid close attention to the potential value of legal concepts developed within religious law to meeting the challenge of encounters with foreign law. Even fewer have drawn analogies between the effect of extra-doctrinal factors on interpretation in the two domains. The poignant dilemmas of rejection of or interaction with foreign law yearn for thorough and prompt cross-disciplinary analysis, as their relevance to contemporary constitutional law comes to echo their historic importance in religious law. In this article, I explore elements of early engagement with the constitutive laws of others along two lines: (i) various doctrinal innovations in pre-modern religious law, particularly Jewish law, in respect to engagement with the laws of others; (ii) earthly motivations for change to religious law’s treatment of external sources and practices. I conclude by suggesting that the current liberal constitutional canon’s hostility toward religion, in particular its simplistic portrayal of religion as a monolithically “traditional,” “particularist,” “backward” and outdated domain runs the risk of throwing out the baby (religious law) with the bathwater (religion).

The proliferation of neoliberalism has unavoidably bred an impoverishment of meaning in the lives of people. The more neoliberal a state is the more religious its populace is likely to turn. If this is accompanied by the decline of the meaning provided by the narratives and practices of the nation-state, religion remains the only real source of big meaning for the citizens of the post-nationalist neoliberal state. The combination of neoliberalism and post-nationalism is therefore a potential threat to the future prospects of secular liberal-democracy. The liberal state cannot provide its citizens with a system of big meaning, or at least not with a thick and comprehensive such system. But if it abides by what I call “the liberalism of flourishing”, the liberal state will take it upon itself to provide its citizens with rich contents of deep meaning, i.e., with an abundance of materials embedded in art. Rich contents of deep meaning can serve as building blocks for individuals to develop their own personal conceptions of the big meaning of life. This is the main way in which a liberal state can compete with the contents of big meaning provided by religion.

Holy places are protected by the law, but the rationale for this protection has received little attention. The purpose of our paper is to fill this gap. The natural explanation for this protection lies in terms of religious freedom. However, since this freedom is violated only when believers are required to actively act against the dictates of their religion, this notion is of no help in the present context. Even when holy places serve as sites for worship, there is usually no religious duty to carry out worship there. Another explanation would base the protection of holy places on the prohibition against hurting religious feelings. But while this looks promising when the desecration is intentional, it is less so when the desecration or the hurt are incidental. Finally, the protection of holy places is sometimes understood as a way of preserving “cultural heritage.” But many holy sites do not fall under this definition and still enjoy protection. Our tentative conclusion is that holy places do not enjoy automatic protection just because they are perceived as such by some religious group. This protection must be earned by arguments that would establish the (“objective”) holiness of the relevant site within some religious tradition, explain the exact nature of the harm or offense that is the matter of concern, and demonstrate why the believers’ interests regarding the perceived holy place override those of the public.

The article argues that secularism in Europe needs to be fundamentally reconsidered. Everywhere European secular states face a double threat: On one hand fundamentalist religion, on the other negative secularism. Firstly, the paper explains negative secularism and the reason it is a problem rather than an asset. It then elaborates a new conception of positive secularism that can be understood either as a political or as an ethical project. Either way, the point of positive secularism is to distance itself from religion in order to embrace diversity of all types, religious and non-religious. Political secularism, however, relies on an elusive hope of reaching overlapping consensus between religious and non-religious people. Ethical secularism aims instead to protect diversity by promoting the establishment of a marketplace of religions, which acknowledges a public role for religion while regulating it. The marketplace of religions promotes religious pluralism and helps to iron out the different treatments between religions. Ethical secularism aims to be a worldview of worldviews that creates the preconditions for all religious and non-religious people to live well together.

Most studies on constitution-making emphasize how cultural and institutional characteristics independently impact successful democratic transitions. This article proposes a new approach to theorizing this process, positing that the character of institutional and cultural elements and the relationships between them give rise to a unique temporal and political context called a critical juncture, with qualities and characteristics that place some states on trajectories toward success and others toward failure. By analyzing and comparing the events surrounding the Egyptian and Tunisian transitions, we demonstrate how the placement of these institutional and cultural elements put Tunisia on the path to democratization and led Egypt inevitably toward autocracy. The findings show that, where these junctures fail to instill civic ideals and avenues for all parties’ participation, the political environment becomes uninhabitable for successful transition.

The encounter between synagogue and state in Israel’s military context raises a variety of complex questions that defy conventional paradigms. While religious liberty continues to occupy a special place in most liberal democratic thought, the legal and philosophical literature pondering its various dimensions has largely lost analytic sight of the fascinating intersection of military and religion. This article embarks on analyzing the appropriate integration between loyalty to God and to country, and between religious male and secular female soldiers. Evaluating examples of synagogue-state tensions and accommodationist policies, this article explores the manner and extent to which the Israeli military (IDF) responds to the observant soldier’s multiple identities as a religious minority member and a faithful citizen of the larger secular polity. Against this backdrop, the article analyzes the vexed challenges posed to multicultural theory by the equivocal status of the Orthodox community as a numerical minority but “power majority” within the military, and by the IDF’s unique exercise of multiculturalist protection, termed herein “external restrictions,” imposed on majority group members. It concludes that the ongoing “religionization” of the IDF through the 2002 “Appropriate Integration” regulation has served as a powerful counterforce to gender equality, fostering a growing practice of female exclusion through which women are disenfranchised from core, non-negotiable protections of citizenship. The article identifies as the prime casualty of this aggressive multicultural accommodation not only secular women’s hard-won equality of opportunity, but also the very rights and status of minority women within their own religious community.