Volume 18, Issue 1 - Rethinking the Public-Private Divide: Law and Religion in the Modern State; Co-edited by Jaclyn Neo and Gila Stopler

How do the United States and France guarantee that their proclamations of non-establishment and separation are respected? These two countries employ different types of tools to preserve and protect separation, directly rooted in the contexts from which they differently emerged – the writing of the Constitution in the U.S. and the 1905 law of separation in France: fiscal or financial in the United States, penal in France. This article analyses in detail how these various tools have emerged and developed throughout the 20th century. Since the 1980s, increasing political and judicial struggles raised by the development of new minority faiths (namely Islam) in France and Christian fundamentalism in the U.S. have caused a\ quasi-abandonment of the tools protecting separation that has contributed to regressions, back to the regimes the framers of the Constitution in the United States and authors of the law of 1905 in France respectively sought to abandon: the establishment or the state control of religion.

Professor Weil’s thesis seems largely correct with respect to the United States, whose law on religious establishment I regularly teach. Funding is central to American debates over religious establishment. The fight over religious establishments in Virginia, which inspired both James Madison’s “Memorial and Remonstrance against Religious Assessments” and Thomas Jefferson’s “An Act for Establishing Religious Freedom,” was over whether persons could be forced to pay taxes to support religious instruction. Financial concerns were at the root of church-state debates in the nineteenth century, when Protestants repeatedly rebuffed Catholics who wanted funding for Catholic private schools. Many state constitutions still have what are known as mini-Blaine Amendments that forbid public funding for religious institutions. Whether proponents of a strong separation between church and state in the United States are fighting the same battles as proponents of a strong separation of church and state in France is nevertheless problematic. The French revolutionaries had to subordinate a reactionary church. The American revolutionaries merely had to negotiate peace treaties among the different sects that supported the Declaration of Independence. Separation of church and state in the United States is best conceptualized as a division of labor among liberal institutions rather than a means for purging anti-liberal religion from the liberal public sphere.

In August 2019, the local council of Umm al-Fahem, Israel, cancelled a scheduled performance of the known Palestinian rapper Tamer Nafar, claiming that Nafar’s artistic work did not meet with the town’s accepted religious, moral, and social norms. Subsequently, residents of the town and the Association for Civil Rights in Israel, petitioned the Court against the local council’s interference with Nafar’s freedom of artistic expression. Significantly, Nafar was not among the petitioners. The Court concurred with the petitioners, determining that the local council had no authority to interfere with Nafar’s artistic content, and if there was concern regarding detrimental effects on public peace or security, police security should be provided for the event. Despite this ruling from an Israeli court, Nafar refused to perform in Umm al-Fahm. Instead, he accepted an invitation for dialogue with the conservative non-liberal forces within Umm al-Fahm council, a dialogue that resulted in reconciliation. I argue that Nafar’s decision, as a liberal subject to choose dialogue with non-liberal forces in Palestinian society embodies the conceptual foundations of post-secularism, which extend beyond the binary of liberal/non liberal divisions and binaries and pave the way for internal dialogue between religious and secular actors. It constructs a platform for liberal subjects in Palestinian society to be heard in the public Palestinian sphere, providing social and political alternatives to the violent authority of Israeli law.

A culture war has been brewing in Singapore since 2009 when a conservative Christian group conducted a reverse takeover of a feminist civil society organization and was subsequently expelled from the organization in a publicized meeting between the two groups. Since then, the state has mediated the contestation of values between religious conservatives and liberal groups allied around issues of gender and sexuality. The culture war between the two sides has revolved around creative protests that have evaded state prohibitions against public contestations over what is legally considered private beliefs and affairs. They involve innovative hybridizations of American discourses on values and rights mixed with Asian emphases on family traditions and sentiments. The COVID-19 pandemic has, however, laid bare the adaptation of the American culture war into the Singaporean public sphere. This article looks at and analyzes COVID-19 vaccine hesitancy among conservative Christians in Singapore and their incorporation of anti-vaccination views from American Christian nationalism into secular framings, invoking legal rights and responsibilities aligned with the state’s nationalist discourse. I argue that this represents a new phase of contestation by conservatives, refashioning their religious views into secular frames of public good and morality serving the secular nation. By doing so, they implicitly challenge the state’s regulation of religion as private interests and beliefs. This altered religious activism has shifted the terms of secularism and loosened the hegemony of the state in defining these terms.

This article examines the impact of identity politics on the traditional liberal distinction between public and private spheres, arguing that critical theories associated with identity politics have significantly blurred these boundaries. This blurring is largely due to the portrayal of equality as a non-negotiable value by proponents of identity politics, who are prepared to limit fundamental freedoms to uphold it. Utilizing Francis Fukuyama’s distinction between “lived experience” and “shared experience,” the article proposes a reinterpretation of the anti-discrimination principle aimed at cultivating shared liberal citizenship. It scrutinizes decisions by Supreme Courts around the globe concerning the denial of wedding cake services to gay couples as a case study. These legal battles exemplify how cultural disputes are reshaping the public-private divide and highlight the need for principles that can justly reconcile freedom and equality in an era marked by intense cultural wars and deepening political division. The article suggests several principles that could assist courts in mitigating the political tensions inherent in cases fueled by cultural conflicts.