Skip to main content


  • Daniel Philpott (a1) and Timothy Samuel Shah (a2)

Not so very long ago, the idea of religious freedom enjoyed all the self-evident virtue of a Norman Rockwell painting. Sure, Americans disagreed about what it meant in practice, leaving their Supreme Court to hash out the details. Still, however Americans differed in their religious beliefs, they espoused religious freedom and insisted that it cannot be government's job to promote any one religious sect over others or coerce anyone's conscience in religious matters. “If there is any fixed star in our constitutional constellation,” thundered Supreme Court Justice Robert Jackson in 1943, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”1 For a time, this consensus seemed poised to embrace the entire world. When in November 1949 Eleanor Roosevelt proudly held up for public view a poster-size copy of the Universal Declaration of Human Rights, including its article on “freedom of thought, conscience and religion,” one might have been forgiven for thinking that all the peoples of the earth were ready to follow her matronly instruction.2

Hide All

1 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

2 Glendon Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).

3 Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb–2000bb-4 (2012); International Religious Freedom Act of 1998, 22 U.S.C. §§ 6401–81 (2012).

4 “The Politics of Religious Freedom,” The Immanent Frame,

5 Mahmood Saba and Danchin Peter, eds., “Contested Genealogies of Religious Freedom,” special issue, South Atlantic Quarterly 113, no. 1 (2014); Hurd Elizabeth Shakman and Sullivan Winnifred Fallers, eds., “Symposium: Rethinking Religious Freedom,” Journal of Law and Religion 29, no. 3 (2014).

6 Elizabeth Shakman Hurd, “The Tragedy of Religious Freedom in Syria,” Chicago Tribune, March 29, 2012,

7 Mahmood Saba, The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2005).

8 Ibid., 28.

9 On religious freedom as a presumption against undue religious compulsion, along with an argument for its cross-cultural validity, see Little David, Sachedina Abdualaziz, and Kelsay John, “Human Rights and the World's Religions: Christianity, Islam, and Religious Liberty,” in Religious Diversity and Human Rights, ed. Bloom Irene, Martin J. P., and Proudfoot Wayne (New York: Columbia University Press, 1996), 213–39.

10 Illustrative of this school is Dubuisson Daniel, The Western Construction of Religion: Myths, Knowledge, and Ideology, trans. Sayers William (Baltimore: Johns Hopkins University Press, 2003); Nongbri Brent, Before Religion: A History of a Modern Concept (New Haven: Yale University Press, 2012).

11 On the disproportionate role of liberal Protestants in launching modern American sociology, including the sociological study of religion, see the first two chapters in Smith Christian, ed., The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Berkeley: University of California Press, 2003), 1159 .

12 Theologian William Cavanaugh, who sympathizes with the new critics, discusses the great diversity in religious definitions and definitional approaches in The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (New York: Oxford University Press, 2009), 102–22.

13 Wilken Robert, Christianity and Religious Freedom (New Haven: Yale University Press, forthcoming). Wilken stresses the significant fact—ignored by Hurd and Mahmood—that the Religion Clauses of the First Amendment to the US Constitution reflect and protect this broad conception of the “free exercise of religion,” and thus pointedly decline to reduce religion to mere belief or conscience in the way the new critics assume is endemic to Western modernity.

14 On the indispensability of the concept of religion, see Riesebrodt Martin, The Promise of Salvation: A Theory of Religion (Chicago: University of Chicago Press, 2010), 57 .

15 For a powerful argument making substantially the same point about Sullivan Winnifred Fallers, another new critic, and her book The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), see Little David, Essays on Religion and Human Rights: Ground to Stand On (Cambridge: Cambridge University Press, 2015), 171–72.

16 Jacques Berlinerblau, “The Crisis in Secular Studies,” Chronicle of Higher Education, September 8, 2014,

17 Marx Anthony W., Faith in Nation: Exclusionary Origins of Nationalism (Oxford: Oxford University Press, 2003).

18 Hobbes Thomas, On the Citizen, ed. and trans. Tuck Richard and Silverthorne Michael (Cambridge: Cambridge University Press, 1998), 1415 ; Hobbes, Leviathan, ed. Tuck Richard (Cambridge: Cambridge University Press, 1996), especially chapter 29.

19 For a discussion of Grotius's illiberal liberalism and the respects in which it pursued objectives radically incompatible with robust religious freedom, see Shah Timothy, Even if There is No God: Hugo Grotius and the Secular Foundations of Modern Political Liberalism (Oxford: Oxford University Press, forthcoming).

20 It could be argued that England and the Dutch Republic are exceptions. But it is probably more accurate to argue that Dutch and English authorities, rather than deliberately embrace wide religious freedom for the sake of any broad state-building objectives, gradually backed into providing greater de facto and de jure religious toleration for their unusually religiously diverse populations—through great tumult and reversals and in fits and starts—over the course of the seventeenth century. What religious toleration they instituted often took the form of piecemeal concessions necessary to meet short-term political objectives, such as securing sectarian support for William the Silent's campaign against the Spanish, or securing the support of Protestant nonconformists for the accession of William and Mary in 1688. It would be hard to identify any important political decision makers, even in these fabled contexts of “religious toleration,” who self-consciously embraced a wide policy of religious freedom as a path to hegemonic nation-state construction.

21 Shah Timothy and Hertzke Allen, eds., Christianity and Freedom, vol. 1, Historical Perspectives (Cambridge: Cambridge University Press, 2016). See especially the articles by David Little, David Lantigua, and Robert Wilken.

22 Ibid. See especially the essays by Timothy Shah and Robert Wilken. For numerous contemporary cases supporting this claim, see Shah Timothy and Hertzke Allen, eds., Christianity and Freedom, vol. 2, Contemporary Perspectives (Cambridge: Cambridge University Press, 2016).

23 Pew Research Center, “Trends in Global Restrictions on Religion,” June 23, 2016,

24 Gill Anthony, The Political Origins of Religious Liberty (Cambridge: Cambridge University Press, 2008).

25 Mahmood Saba, “Modern Power and the Reconfiguration of Religious Traditions: Interview with Talal Asad,” Stanford Humanities Review 1, no. 5 (1996): 10 .

26 Asad Talal, “Anthropological Conceptions of Religion: Reflections on Geertz,” Man 18, no. 2, (1983): 251 . Emphasis in orginal.

27 Asad Talal, “Thinking about Religious Beliefs and Politics,” in The Cambridge Companion to Religious Studies, ed. Orsi Robert (Cambridge: Cambridge University Press, 2012), 56 .

28 See also contributions to the Immanent Frame forum on which the Politics of Religious Freedom is based as well as a closely related Immanent Frame forum on religious freedom. Winnifred Fallers Sullivan, “The Extra-Territorial Establishment of Religion,” The Immanent Frame, March 22, 2010,; Webb Keane, “What is Religious Freedom Supposed to Free?,” The Immanent Frame, April 3, 2012,; Robert Yelle, “Christian Genealogies of Religious Freedom,” The Immanent Frame, April 6, 2013,; Peter Danchin, “Hosanna-Tabor in the Religious Freedom Panopticon,” The Immanent Frame, March 6, 2012,

29 The story of Protestantism's mixed and frequently negative record on religious freedom is well told in Joseph Lecler's magisterial study, Toleration and the Reformation, 2 vols. (London: Longmans, 1960).

30 However, as many, including Wolfe Alan (The Future of Liberalism [New York: Alfred A. Knopf, 2009], 162) have noted, it is unclear that Diderot originated (or even wrote or said at all) this famous line, and it seems uncertain who did.

31 Wilken, Christianity and Religious Freedom; Digeser Elizabeth DePalma, The Making of a Christian Empire: Lactantius and Rome (Ithaca: Cornell University Press, 2000).

32 Timothy Samuel Shah, “The Roots of Religious Freedom in Early Christian Thought,” in Shah and Hertzke, Christianity and Freedom, 1:33–61.

33 Quoted in Gross Rita, Religious Diversity—What's the Problem? Buddhist Advice for Flourishing with Religious Diversity (Eugene: Cascade Books, 2014), 44 .

34 Irenaeus, Against Heresies, book 4, chapter 37, section 1, in The Writings of Irenaeus, vol. 2, ed. and trans. Roberts Alexander and Rambaut W. H. (Edinburgh: T. & T. Clark, 1871), 36 .

35 For discussion of Tertullian, Lactantius, Sophocles, and Dignitatis Humanae, see Shah and Hertzke, Christianity and Freedom, 1:1–32, 33–61, 62–89; Riesebrodt, The Promise of Salvation, 38–40; Timothy Samuel Shah, “A Philosophical Basis for Transatlantic Cooperation on Religious Freedom?,” Arc of the Universe: Ethics and Global Justice, November 6, 2015,

36 Qur'an 2:256 (Abdullah Yusuf Ali translation).

37 G.A. Res. 217 (III)A, Universal Declaration of Human Rights (Dec. 10, 1948); International Covenant on Civil and Political Rights art. 27, Dec. 19, 1966, 999 U.N.T.S. 172; G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (Nov. 25, 1981).

38 International Religious Freedom Act of 1998, 22 U.S.C. §§ 6401–81 (2012).

39 Peter Danchin, “Good Muslim, Bad Muslim,” The Immanent Frame, April 21, 2010,

40 Elizabeth Shakman Hurd, “International ‘Religious Freedom’ Agenda Will Only Embolden ISIS,” Religion Dispatches, November 10, 2014,

41 Pew Research Center, “Trends in Global Restrictions on Religion.”

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
Please enter your name
Please enter a valid email address
Who would you like to send this to? *



Altmetric attention score

Full text views

Total number of HTML views: 142
Total number of PDF views: 195 *
Loading metrics...

Abstract views

Total abstract views: 626 *
Loading metrics...

* Views captured on Cambridge Core between 18th January 2017 - 18th December 2017. This data will be updated every 24 hours.