Be careful what you wish for, you just might get it! So goes the old English proverb. The essays in this symposium issue, guest-edited by Winnifred Fallers Sullivan and Elizabeth Shakman Hurd raise some stark questions about the nature and scope of religious freedom in a way that suggests that proponents of religious freedom may be getting something different from what they have bargained for in defending religious freedom as a human right at home and abroad.
What is religious freedom? Is religious freedom a triumphal US export to the world? Is it a distinctively Protestant construct, a privatized and individualistic legacy of the Protestant Reformation, privileging the forum internum of conscience over the external rituals and practices of groups? Is it a special right, distinct from rights of expression and association, in a way that demands special protection? For that matter, what is religion? What role, if any, should law have in defining religion and adjudicating religious disputes? Do religious freedom protections extend to religious minorities? Or does the political power of the law that is inherent in religious recognition and religious freedom protection tend to reinforce the religious views of majorities at the expense of minorities? What should the law do when it comes to religion and religious freedom? Is religious freedom possible? These and other questions are raised in the essays that comprise this issue.
These questions have been percolating in the field of religious studies for some time, largely as a result of arguments raised in Sullivan's widely noted book, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2005). They have likewise received an audience in the field of political science following Hurd's equally influential exposition of these issues through the lens of secularism debates in The Politics of Secularism in International Relations (Princeton, NJ: Princeton University Press, 2007). Sullivan, Hurd, and their interlocutors have conducted a series of vigorous debates and symposia over the electrons at The Immanent Frame blog. Their Politics of Religious Freedom Project, from which these essays emerge, has been funded by the Henry R. Luce Initiative on Religion and International Affairs.
The arguments contained in this symposium may be less familiar and perhaps more jarring to those in law and in the activist and advocacy communities that support religious freedom and religious human rights in domestic and international contexts. When religious groups bring their grievances to the courtroom for adjudication and relief, theoretical questions over the definition of religion can seem less urgent than the need to extend religious groups the equal protection of the law and some measure of the relief they seek, provided such relief is in accord with other constitutional and generally applicable legal principles. In attempting justice, the law cannot always keep its hands clean of definitional disputes regarding religion in the name of secularism, separationism, or legal or scholarly “neutrality.” Disputes require resolution and lines must be drawn and necessarily redrawn as the law continually evolves. Pluralism and democracy can be messy. The tangled path of the American constitutional law of church and state provides ample evidence for this proposition.
Internationally, the situation is no less murky, but even so, bright lines must still be drawn in the name of religious freedom. When Yazidis are being starved to death on a mountaintop and Christians told to convert or die in Iraq, the nature of religious freedom and the reality of its brutal and genocidal violation do not seem to require extensive debate. Whether a conflict begins with religion or is rooted in a complexity of economic, ethnic, and political relationships, not to mention the pernicious legacies of colonialism, when Muslims and Christians in the Central African Republic begin to slaughter each other in the name or guise of religion, then the designation “religious conflict” can quickly become a self-fulfilling prophecy. When violence erupts from Hindu nationalism in India or Buddhist nationalism in Sri Lanka and Myanmar, the religious dimension of those conflicts, though often inextricably intertwined with other factors, does not seem tangential or accidental. The normative demands of religious freedom amid the descriptive complexity of religion seem pretty apparent. After all, lives and liberty are on the line!
The essays in this symposium aim at a re-thinking, re-description, and reconsideration of religious freedom—and in this it certainly succeeds. C. S. Adcock raises, from the Indian context, important questions about whether religious freedom laws succeed in achieving their proponents' avowed goal of protecting religious minorities, or, in fact, end up reinscribing and reifying religious identity and difference through the rubric of the law in a way that obscures other factors (such as caste) and may even end up inviting religious conflict and violence. The power to name is the power to norm, but in light of the limits of the law to authentically map the “hyper-real” claims of religion or politics, Benjamin Berger, addressing recent controversies in Canada and Israel, recommends virtues of modesty and humility for law in the politics of religious freedom. Nandini Chatterjee, also writing on India, takes up continuities and discontinuities between British colonial law and its allowance of a legally pluralistic system of religious “personal status laws” in matters of family and inheritance with pre-colonial Mughal law and its management of religious identities and religious diversity.
In a way that parallels but then diverges from Adcock's observations of how religious freedom protection laws have been used strategically by Hindu nationalists to incorporate members of the Untouchable caste into Hinduism, sometimes against their will and explicit choice, Elizabeth Shakman Hurd describes the way in which Turkey's Alevi Muslim community has been defined into a “legal limbo” between the majority Sunni Muslim community and the Jewish and Christian communities, which have privileges and protections as officially recognized minority religions. The European Court of Human Rights has taken a different view, calling upon Turkey to extend to Alevis the religious minority protections of Turkish and international laws on religious freedom, from what Hurd describes as a “long and contested history of support for minority rights in the Middle East” that includes a “broader European- and American-sponsored set of international initiatives to institutionalize the right to legal personality for minority religions, create tolerant and democratic religious subjects, and promote a right to freedom of religion or belief globally.” Of course, one could argue in light of recent events that, whatever long-term prospects for international projects of tolerance and democracy in that part of the world, the minority religions currently at risk of genocidal extinction there probably need all the support they can get.
Mathijs Pelkmans takes us to the post-Soviet states of Georgia and Kyrgyzstan, in which there is “nostalgia for religious repression” and dissatisfaction with the “unintended consequences of religious freedom.” Noah Salomon interrogates the “soteriological” power of the secular state in South Sudan to mediate religious diversity amid the rise of tensions that have recently marred the hope that attended the creation of the world's newest nation. Benjamin Schonthal gives account of the way in which “constitutionalization” of religion and religious rights in Sri Lanka has exacerbated rather than mitigated religious tensions. Finally, Paul Sedra takes into the current situation of Egypt's Coptic Christian community and how it is faring amid political revolution and a revival of sectarian tensions that have rendered it less exceptional more similar to its Muslim Brotherhood counterparts in its relation to the state, even as European and American religious freedom advocates have continued to emphasize the uniqueness of Christian persecution.
This symposium, “Re-Thinking Religious Freedom,” is a global tour of current religious freedom hotspots that casts doubt on certainties about the definition of religion and the normative value of religious freedom that are widely held in the legal advocacy and human rights communities. Somewhat ironically, the articles do so even as several of the commentators in this issue's second half—a wonderful set of reflections on Ronald Dworkin's final book, Religion without God, largely seek to retrieve and reinforce the religious part of Dworkin's “religious atheism,” with little doubt of the significance of religion and religious freedom for the renowned jurisprudential philosopher in his final work. Would that contributors to this issue's two symposia might have the occasion to debate religion and religious freedom together!
The stakes are high in the arguments that Sullivan and Hurd and their colleagues bring to this symposium. Lives, liberty, and the fate of nations and the global community hang in the balance. The Journal of Law and Religion is fortunate and proud to be able to bring this provocative and timely set of arguments on religion and religious freedom to its interdisciplinary, international, and interreligious readership—and we look forward to the debate that shall, without a doubt, ensue.