A good democratic decision, democratic theorists have argued, must be a decision made “on the basis of the best available information and arguments” (Habermas Reference Habermas1996, 170) and reflecting adequate guidelines of inquiry, that is “principles of reasoning and rules of evidence in the light of which citizens are to decide whether substantive principles properly apply and to identify laws and policies that best satisfy them” (Rawls Reference Rawls1993, 224). Applying general principles to specific cases usually requires having reliable and sufficient information about the case at stake. This is also true when making decisions about religion. It sometimes matters greatly, for instance, how much a specific religious practice matters to religious believers. For instance, in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), the Supreme Court of Canada had to decide whether a decision to prohibit a Sikh boy from wearing a kirpan, a ceremonial dagger, to school was a violation of religious freedom. An informed decision must consider the fact that the kirpan is not seen by Sikhs as a weapon but as a religious symbol, as well as the fact that wearing a kirpan is perceived as extremely important by Sikhs as it is one of five articles of faith. Simply assuming that the kirpan is a knife, without regard for its religious significance and importance, would amount to making a decision based on a misunderstanding of what the practice of wearing a kirpan means for the Sikh boy, and the Sikh boy could reasonably argue that he has not been extended the equal respect that he deserves.Footnote 1 But what kind of information is needed, and how can it be obtained? Or in other words, who can be considered an expert when it comes to providing information about religion?
Those who are usually considered to be religious experts and asked to testify in front of legislative assemblies or courts on questions of religious identification and religious orthodoxy are either academics or religious leaders. Here I argue that both questions should be considered irrelevant for a religiously neutral understanding of politics and law. I introduce a distinction between cases of religious freedom and cases of religious establishment: only the subjective importance of commitments matters in the former, and only the objective, reasonable, and context-sensitive interpretation of religious establishment matters in the latter. In both cases, religious leaders and academic experts are not better placed than others to provide the necessary information, and consequently they should not be playing any special role in making decisions about religious freedom or religious establishment.
Religious expertise
Before legislators and judges can make decisions, they need to gather information. They commission reports, audition experts, and gather data. If a government adopts a policy that aims at reducing carbon emissions, they have to make sure that whatever the policy is doing is likely to lead to a reduction of carbon emissions. Such expectations are based on scientific studies on which decision-makers rely. We cannot expect decision-makers to be able to fact-check these studies themselves, and so to some extent their decisions are based on who they consider to be epistemically authoritative. In other words, they need experts. In fact, decision-makers in executive, legislative, and judiciary powers all commonly consult experts.Footnote 2
The authority of experts is justified by their special epistemic advantages: “the expert’s advantage is in his easy access to the evidence and in his better ability to grasp its significance” (Raz Reference Raz1990, 52). It is because of this epistemic authority that experts can be given a special role in decision-making. There might be concerns about the special role that democratic institutions tend to give to experts (Chambers Reference Chambers2017; Moore Reference Moore2021). It might be argued that it turns democracy into a technocracy, in which experts are not only consultants for decision-makers but become decision-makers themselves. These are valid concerns but acknowledging them does not necessarily commit us to the conclusion that relying on the epistemic authority of experts in a democracy must always be avoided. The concerns that I focus on in this paper are not about the role of experts in democratic decision-making in general, but rather about the role of experts when it comes to making decisions about religion in particular. In other words, although all kinds of experts might play a legitimate role in democratic politics, those that are usually considered as religious experts might not.
Those who have special expertise about religion are often asked to testify in courts as well as in front of parliamentary commissions or working groups. Two categories of people tend to be considered as experts. On the one hand, there are academics who are experts in relevant fields such as Religious Studies or Theology. The epistemic authority of academics comes from their titles, their published work, and other forms of recognition by their academic peers. On the other hand, there are religious leaders who are experts in their own religion. Their epistemic authority comes from the status and authority within their own religion. Like for academics, the authority of religious leaders is ultimately based on the recognition by their peers, but here the peers are their co-religionists. Their expertise is not meant to be neutral but religious leaders are usually seen as having access to a kind of knowledge that academics cannot have access to, except if they also happen to be religious themselves. Instead of the outsider perspective of a well-informed observer, religious leaders provide the internal perspective of those who have specific religious commitments.Footnote 3
Religious experts are regularly asked to testify in both legislatures and courts.Footnote 4 They can also be members of ethical commissions that are asked to provide policy recommendations on various ethical issues. In the French national advisory commission on ethics, for instance, several members are nominated as representatives of the principal spiritual and philosophical traditions (although the specific traditions are not named). Both academic experts of religion and religious leaders have an epistemic advantage compared to non-experts. They have studied religions or theology, they know the religious texts, the histories of religious traditions, the religious institutions, and so on. They know religion in general, or a specific religious tradition in particular, better than non-experts. Religious experts are indubitably experts in the sense of having some epistemic advantage compared to non-experts, with special expertise regarding questions of religious identification and questions of religious orthodoxy. Yet I will argue that this particular expertise is the wrong kind of expertise and should not be legally or politically relevant.
The question of religious identification is the following: is this specific commitment or this specific practice religious or non-religious? That is the question, for instance, that Winnifred Sullivan and other expert witnesses were asked to answer in the Warren vs. Boca Raton case.Footnote 5 In this case, 11 plaintiffs sued the city of Boca Raton for violation of religious freedom. The plaintiffs were family members of people buried in the cemetery owned and operated by the city of Boca Raton in Florida. The regulations of the cemetery included a prohibition of vertical grave decorations, for “safety and economic reasons” (Sullivan Reference Sullivan2005, 20). The plaintiffs and others had disregarded the regulations and many vertical decorations, such as fences, crosses, statues, or candles, had been installed over the years. When the city threatened that non-conforming decorations would be removed, the plaintiffs sued and argued that the removal of the decorations would be an unconstitutional burden on their exercise of religious freedom. Whether religious freedom had been violated depended primarily on whether the decorations of the plaintiffs were in fact religious or not, and that is why religious experts were asked to testify both for the plaintiffs and for the defendant, the city of Boca Raton. Interestingly, but as is often the case at trials, the testimonies of experts on both sides were contradictory: those testifying on behalf of the city claimed that there was no substantial burden on the exercise of religious freedom, while those testifying on behalf of the plaintiffs concluded to the opposite. This disagreement is explained by their irreconcilable understandings of religion:
For the City, religion was something that had dogmas and rules and texts and authorities. Religion was something you obeyed, something about which you had little choice because of the imposition of an external authority. (…) For the plaintiffs, religion was a field of activity, one in which an individual’s beliefs and actions were the result of a mix of motivations and influences, familial, ecclesiological, aesthetic, and political. As the trial progressed, the plaintiffs seemed often truly (and understandably) at a loss to understand what exactly the City’s lawyers were asking of them. The evidence of an inflexible religious authority demanded by the City was alien to them. It formed no ordinary part of their religious lives. (Sullivan Reference Sullivan2005, 36)
Sullivan herself, along with two other expert witnesses testifying for the plaintiffs, argued that the decorations at the cemetery could be understood as religious practices (Sullivan Reference Sullivan2005, 215–217). Her report, in fact, emphasized the difficulty in determining what religion is, and which practices could count as religious. She carefully avoided claiming that the plaintiffs’ actions were definitively religious and instead simply concluded that these practices “may all be considered important religious practices in the context of a particular individual’s religious life” (Sullivan Reference Sullivan2005, 217).
The question of religious identification is necessary especially when, like with the Religious Freedom Restoration Act, some special treatment is given to religious practices or religious commitments. We need to know what is actually religious, because in many cases what is religious and what is not religious are treated differently. For instance, in some cases, only religious practices would be accommodated, while similar non-religious practices would not. In the case of the Boca Raton cemetery, it is only if it represents a substantial burden on the exercise of religious freedom that the removal of the decorations might be unconstitutional.
But sometimes, the question of religious identification is not the most important one. Certain practices are clearly, unambiguously religious, but they might not be central or particularly important within the religious tradition. It is the second kind of question that religious leaders and academic experts of religion are asked to answer, which I call the question of religious orthodoxy, and it can be formulated as follows: is this religious commitment or practice in line with the commitments or practices of this religious tradition?
Consider the case of the burqa. Wearing the burqa is a religious practice in Islam. But is it demanded by Islam? For legislators in a democracy considering restricting the right to wear such religious clothing, this is the central question. If the burqa is indeed demanded by Islam, then a prohibition would significantly restrict the exercise of religious freedom of Muslims and would therefore demand a particularly strong justification in the name of a compelling state interest. If it is not demanded by Islam, then the restriction could be more easily justified. Since the wearing of a burqa is not harming others, it is unlikely that a compelling state interest could justify its prohibition. That a practice is the object of a religious prescription does not entail, of course, that it cannot be legitimately prohibited. But the level of justification is much higher than for practices that are not central to religious commitments or to individuals’ identity. This is why the question of religious orthodoxy is crucial to the debate on the prohibition of the burqa.
In 2009, a group of French parliamentarians was tasked with writing a report on full-face veiling. The report of that commission concluded that a legal prohibition of the burqa was justified because, in the words of its president, “the full veil is an intolerable attack on women’s freedom and dignity” (Rapport, 13, my translation) and because it was seen as being incompatible, or at least in tension, with other key values such as gender equality, “living together”—emphasizing the importance of face-to-face interaction—and public order.Footnote 6 The report was then included as part of the parliamentary work that led to the adoption of the 2010 French law prohibiting face covering.
The commission interviewed 211 persons, including religious experts, representatives of all kinds of associations, philosophers, professors of public law and other academics, mayors, senators, former ministers, and also several representatives of public services, including a midwife, a police officer, a high school principal, and an employee of the post office. Among the religious experts, 15 were invited as religious leaders, and about half a dozen were academic specialists of Islam. The working group also interviewed 2 women who are not religious experts but who have personal experience of wearing the veil: one is wearing a full-face veil voluntarily (although the report notes that she did remove the veil during the interview), and the other had been forced by her father to wear a veil (she was also prevented from going to school, sequestered, beaten, and married against her will). The balance, then, is clearly tilted in favor of religious leaders and academic experts of Islam, who are considered as having the epistemic advantage to answer the question of religious orthodoxy.
The question of whether the full-face veil is a religious prescription in Islam is recurrent in the interviews of the religious experts. The report insists that “it is not for public authorities to interfere in theological controversies or to define the orthodoxy of any belief whatsoever” but it also adds immediately “since the invocation of a religious basis serves to legitimize a practice, the commission could not avoid the question of possible links between the practice of wearing the full veil and the prescriptions of the Koran or hadiths” (Rapport, 36, my translation). Relying on the testimonies of these experts, a long section of the report develops the claim that the practice is, in fact, not a religious obligation. This interpretation is presented as being the object of a “large consensus among leading figures of the Muslim faith, both nationally and internationally” (Rapport, 39, my translation). Following the views of religious experts and quoting sacred texts, the report concludes that the full-face veil is “an imported ante-Islamic practice that is not a religious prescription” (Rapport, 25, my translation).
As this consensus shows, answering the question of religious orthodoxy is often more straightforward than answering the question of religious identification.Footnote 7 The question is asked within the framework of a particular tradition, and this tradition can be identified and examined objectively: it refers to specific historical events, figures, texts, and those who have a better knowledge and understanding of the tradition, such as both academic experts and religious leaders, are in a better position to make authoritative claims about what fits or does not fit within that tradition. Contrary to the question of religious identification, religious experts have an undeniable epistemic advantage compared to others when it comes to the question of religious orthodoxy.
Religious experts thus do have specific epistemic advantages, at least when it comes to answering the question of religious orthodoxy. Yet the questions of religious identification and of religious orthodoxy are not the right questions to ask and therefore whatever epistemic advantage religious experts do have on those issues should anyway be irrelevant.
Against religious identification and religious orthodoxy
In this section, I argue that religious identification and religious orthodoxy should not matter in a religiously neutral state. The problem of religious identification is that it only makes sense when religion is treated as being uniquely special; but treating religion as uniquely special is unfair. The problem of religious orthodoxy is that it cares about religious traditions instead of religious individuals: it is therefore inherently conservative and fails to protect the interests of minorities within religious traditions. In both cases, there is a misunderstanding about why religious freedom matters and why it deserves to be specially (though not uniquely) protected.
To explain why religious identification and religious orthodoxy are problematic, then, it is necessary to first show that the uniqueness thesis that they rely on is problematic. The claim that religious freedom is unique must be based on the idea that religion itself is distinctive. Defending the thesis of the uniqueness of religion, McConnell has for instance argued that
Religious claims – if true – are prior to and of greater dignity than the claims of the state. If there is a God, His authority necessarily transcends the authority of nations; that, in part, is what we mean by “God.” For the state to maintain that its authority is in all matters supreme would be to deny the possibility that a transcendant [sic] authority could exist. Religious claims thus differ from secular moral claims both because the state is constitutionally disabled from disputing the truth of the religious claim and because it cannot categorically deny the authority on which such a claim rests. (McConnell Reference McConnell1985, 15)
This is however a very unsatisfying explanation. That the state cannot deny the truth of a religious claim does not justify the superiority of any religious claim. Ultimately, the only reason on which the uniqueness of religion is based is the belief of religious individuals in this uniqueness, as expressed by the meaning they attribute to “God.” This is not a reason that a liberal state committed to religious neutrality can accept. That religious individuals genuinely believe that religious claims are unique and superior to secular moral claims does not provide the state with a reason to treat them as such.
If the state wants to be neutral and avoid making controversial assumptions about religious claims, then it must reject the uniqueness thesis. This is where egalitarian theorists come in: “religious freedom is not a distinctive freedom” (Laborde Reference Laborde2014, 54). Singling out religion for special treatment is unfair, they say, because non-religious commitments might be as important or as central to someone’s identity or conception of the good life as religious ones. It is not religion itself that is the protection-worthy value, but something that is shared by other non-religious claims as well. It is these interests that are common between religious and non-religious claims that deserve extensive protection by the liberal state, not religion qua religion. It has therefore become widely accepted among liberal political philosophers that “it is the human capacity for moral or spiritual agency, not for leading good lives with a determinate, perhaps religious, content, that should ground the respect that the state owes to persons qua persons” (Laborde Reference Laborde2014, 55—see also Bou-Habib Reference Bou-Habib2006; Maclure and Taylor Reference Maclure and Taylor2011; Seglow Reference Seglow, Laborde and Bardon2017). Treating commitments differently solely on the basis that some are religious and others are not is unfair as that distinction should be normatively irrelevant from the perspective of the liberal state. Instead, the liberal state can treat commitments differently on the basis that some are particularly important to the individuals holding them while others are not, that it is central to how they believe they should live their life, or that it is key to their identity.
Identifying which value or interest should in fact be the relevant protection-worthy criterion is however a deeply contentious issue for egalitarian theorists of religious freedom. It has been argued that the relevant category is that of “core or meaning-giving commitments” (Maclure and Taylor Reference Maclure and Taylor2011, 12–13), “important commitments and projects” (Eisgruber and Sager Reference Eisgruber and Sager2007, 52), any activity that involves “searching for the ultimate meaning of life” (Nussbaum Reference Nussbaum2008, 169), or “integrity-protecting commitments” (Laborde Reference Laborde2017, 203–204). But whichever category is the right one, what is crucial to this egalitarian account is that knowing that a commitment is religious or non-religious is completely irrelevant. Ultimately, the only distinction that the liberal state can fairly rely on without appealing to sectarian considerations is the distinction between deep commitments and superficial preferences.
The question of religious identification, therefore, can only make sense in the context of a non-neutral state which singles out religion for special treatment, which is incompatible with the liberal commitment to treat all citizens equally, without advantaging any based on sectarian views about religion being uniquely valuable.
But why isn’t the question of religious orthodoxy relevant? Surely, many religious commitments are indeed the kind of deep commitments that we believe are protection-worthy, even if not all of them are. Part of the epistemic advantage of religious experts is precisely to tell others which practices or beliefs are particularly important or central to a specific religious tradition. Surely, if religious experts had agreed that the burqa was indeed the object of a religious prescription in Islam, then this would be highly relevant when decision-makers are about to prohibit it?
Here as well, what religious experts can tell decision-makers might be helpful but it does not provide the exact information that decision-makers actually need. Granting a special role to religious leaders could be justified in two different ways. First, it could be argued that the views of religious leaders correctly represent the views of ordinary religious individuals: knowing what leaders think gives us a shortcut to knowing what all followers think, as the assumption is that these views are the same. Second, it could be argued that, in cases in which the views are not exactly the same, those of religious leaders are superior to those of ordinary religious individuals.
The first justification can be easily empirically rejected. Religious orthodoxy tends to paint religious groups as highly homogeneous, when in fact there is significant internal diversity. We know that what religious leaders see as being important to a specific religious tradition does not necessarily and perfectly overlap with what religious individuals see as being important to their own religious practice. Only the latter and not the former should be politically relevant. It might be the case that some practice is very important to religious individuals and yet is not considered as equally important in the religion that they adhere to. This is arguably what is happening with the burqa. Knowing that religious experts agree that there is no religious prescription to wear a burqa in Islam does not entail that Muslim women can’t sincerely believe that they have a duty to wear a burqa or that wearing a burqa is very important to them.Footnote 8 But it might also be the case that some practice is very important to a religious tradition and yet this importance is not reflected in the commitments of individual believers. This is arguably the case with the Catholic claim that only men can be priests. Although religious experts agree that this is a central tenet of Catholicism, a growing number of Catholic individuals, and sometimes a majority of Catholics within national borders, believe that women should be allowed to become priests (Tevington et al. Reference Tevington, Nortey and Smith2024; see also Bardon, Reference Bardon, Laborde, Tebbe and SchwartzmanForthcoming). In both cases, then, knowing what Islam as a religious tradition says about the burqa and what Catholicism as a religious tradition says about women in the priesthood does not give us any reliable conclusion regarding the individual beliefs of all those who adhere to these religions.
The second justification which prioritizes the views of religious leaders above the views of ordinary religious individuals is also problematic. As in any other group, the authority of leaders might be challenged or rejected by followers. But within the main religious groups in contemporary societies, followers do not have any opportunity to select their leaders or hold them accountable. Religions are rarely democratically run, leaving ordinary individuals with few options to make their disagreements heard. In such cases, granting a special role to leaders becomes particularly objectionable as it solidifies their authority and even provides them with some externally attributed legitimacy. Adhering to the fundamental beliefs of Islam or Catholicism does not necessarily entail consenting to specific leaders, and it is unclear that such official leaders are recognized by followers as having legitimate authority. Relying on the views of those in power might be justified when these are appointed through democratic procedures, but that is not the case for traditional religious groups. For most religious groups, then, granting a special role to leaders is controversial because it makes it even more difficult for those who internally disagree to bring about any change.
Religious leaders and academic experts on religion, then, should not be invited by decision-makers to answer questions of religious identification or religious orthodoxy. However, it is important to note that there may be other reasons beyond epistemic authority to include them in political decision-making process.Footnote 9 The inclusion of religious leaders might serve an expressive function for instance, to give representation to a religious group, even though they should not be invited qua religious experts, that is as having a specific epistemic authority regarding religion. Academic experts of religion, by contrast, could legitimately play a role qua religious experts, but not to adjudicate questions of religious identification or religious orthodoxy. Instead, they can provide valuable insights into the experiences of members of religious communities, in particular in identifying patterns of discrimination or marginalization. Crucially, such information is highly relevant for making some political decisions but it does not turn on religious identification or religious orthodoxy. For instance, when making decisions restricting the right of individuals to wear religious signs, it is important for legislators to know that this affects one specific group, Muslim women, more than others. Considerations regarding the place of Islam in society and the discrimination faced by Muslim women in particular might be relevant. An empirical study has notably shown that the “educational outcomes and economic integration of Muslim women was negatively affected” by the 2004 French law banning religious signs in public schools (Abdelgadir and Fouka Reference Abdelgadir and Fouka2020, 721). The expected effects of a prohibition to wear religious signs in certain contexts should be highly relevant for those considering the adoption of such a prohibition. Academic experts of religion can and arguably should be included in making decisions about religion to answer precisely that type of question.
In other words, what I have argued so far is not that religious leaders and academic experts on religion have no epistemic authority at all, but rather that, to the extent that this epistemic authority concerns religious identification or religious orthodoxy, it is a kind of expertise that should be considered as irrelevant from a political and legal perspective. Therefore, no religious expert should be consulted on those specific questions in making decisions about religion.
The importance of commitments and the interpretation of symbols
It does not follow, however, that there is no such thing as relevant information about religion or religious commitments. But which kind of information is needed depends on which kind of case is at stake.
There are two kinds of cases that concern religion and about which political decisions must be made. The first are cases of religious freedom: what are the limits of this religious freedom? What should be done when the religious commitments of individuals conflict with the requirements of universally applicable rules? That people have a right to religious freedom is a non-negotiable feature of liberal democracies, but the boundaries of such right remain contested. The focus is on religion as it is exercised by individuals or collectives. The second kind of cases are cases of religious establishment: to what extent can religion be supported, either purely symbolically or more coercively, by the state? What is allowed or precluded by the separation of religion and state? That the state should be to some extent neutral toward religion is another non-negotiable feature of liberal democracies, but here again the specific interpretation of this vague principle is up for debate. The focus is on religion as it is endorsed, promoted, or otherwise supported by the state. In this section, I examine each category in turn and show that different dimensions of religion are at work. Consequently, the way in which the relevant information should be obtained depends on the case at hand.
Cases of religious freedom: the importance of commitments
In cases of religious freedom, what needs to be determined is the importance of the religious commitments to those who adhere to them. Some commitments are particularly central to someone’s life plans, and those are precisely the kinds of commitments that are considered as being especially worthy of protection. Making it more costly for people to do what truly matters to them requires a much stronger justification than making it more costly for people to do what they simply prefer doing. Importance, here, could mean weighty, central, perceived as the object of an obligation, or anything similar. Contrary to giving priority only to commitments that are religious or only to commitments that correspond to moral duties, the distinction between important and less important commitments treats all people fairly (Bardon Reference Bardon2023, 486).
The only relevant consideration, then, is whether individuals themselves perceive the commitments as important. Whether these commitments are religious, or whether they are understood as the object of a religious prescription based on tradition, scripture, or religious leaders, is irrelevant. This means that the approach must be subjective: only individuals themselves have the epistemic authority to determine the importance of their own commitments. Decision-makers should not rely on the views of religious experts since these cannot provide this necessary assessment of the importance of individual commitments.
Such a subjective approach is widely shared among egalitarian theorists (Laborde Reference Laborde2017; Maclure and Taylor Reference Maclure and Taylor2011) and is also often appealed to in courts. But this approach faces a significant issue: what if people are lying about their commitments or about the importance of their commitments? What if they exaggerate in order to obtain some kind of advantageous treatment? (Eisenberg Reference Eisenberg2009). The possibility of fraudulent claims is a serious problem but it can be significantly mitigated by assessing the sincerity of individuals, which consequently becomes a central question in the subjective approach (Laborde Reference Laborde2017, 205–207; Maclure and Taylor Reference Maclure and Taylor2011, 83–84; Martin Reference Martin2020; Weinstock Reference Weinstock2011, 165–166).
Whereas the importance of the commitments can only be determined subjectively by those who have them, the sincerity of the beliefs regarding these commitments can be assessed objectively. Consider a woman who claims that wearing a burqa is very important to her and how she believes that she should practice her religion. If it turns out that, in practice, she rarely wears the burqa, not because she can’t (say, because uniform regulations at her place of employment prevent her from wearing a burqa while she is working) but because she decides not to, it would be reasonable to question the importance of the practice to her. The burden that is entailed by a burqa ban would be much heavier for a woman who cannot imagine leaving her home without covering herself than for a woman who would only do so occasionally. The account remains subjective to the extent that it is still up to the individuals themselves to determine what is particularly or especially important to them. No reference is made to commonly accepted texts, traditions, or to the views of religious leaders. But the past actions of the individuals are helpful to assess objectively the sincerity of the claims: what individuals claim should be reflected in what they do.Footnote 10 In other words, the subjective account of religion can be combined with an objective test of sincerity (Martin Reference Martin2020, 266–267).
It follows that, when facing the question of whether some practice is the object of particularly important commitments for certain citizens, decision-makers should not go to religious experts but to the individuals who have these commitments. In the French commission, for instance, the place given to burqa-wearing women is a marginal one. Only two women who believe that it is important to wear a burqa make an appearance in the report. The first one is Farah, a young woman from Marseille who lives in Damas and who only appears indirectly in the report: she briefly met one of the members of the commission but was not interviewed herself. The report does not reproduce her voice directly. Instead, she is only talked about indirectly by the member of the commission who met her in Damas and who describes her as a “ghost, trapped in this veil that masks her identity, her country” (Rapport, 16—my translation). One can reasonably be skeptical that the recollection of the encounter really does justice to Farah’s views by presenting her exclusively as a victim and as someone who is wearing the burqa not out of her own volition but because she “had to.” The story of Farah is a missed opportunity to provide the commission with the much-needed subjective assessment of the importance that some women attribute to the burqa. The second woman is Kenza, the only burqa-wearing woman invited to testify in front of the parliamentary commission. Unfortunately her interview is one of the very few that was not made public, and so the transcript of the interview is not part of the report. She is mentioned in the report as having “tried to convince the members of the commission that wearing the full-face veil was for her a completely free choice, without any pressure from her family or spouse” and as having declared that “she decided to wear a full-face veil to resemble the Prophet’s wives” (Rapport, 44—my translation). There is however no detailed account of how she understands the importance of the commitment.
By giving much more space to the testimonies of religious experts than to those of religious individuals, the commission is endorsing an objective approach of religion.Footnote 11 As a result, it can only hope to answer questions of religious identification and religious orthodoxy, which are precisely questions that decision-makers should not be asking.
Cases of religious establishment: the interpretation of state-supported religion
In cases of religious establishment, what needs to be determined is what specific symbols or acts mean, that is what kind of message they are sending. Some symbols can be seen as referring to a religion, and as such it might be problematic for the state to endorse them. Some publicly supported religious symbols send a message of symbolic exclusion, that is they suggest that those of who are adherents of the publicly supported religion are second-class citizens (Bardon Reference Bardon2022; Laborde Reference Laborde2017; Nussbaum Reference Nussbaum2008). The point then is precisely not to focus on how adherents of the publicly supported religion interpret that support, but on how that support can be objectively and reasonably interpreted. Whether religious establishment can be interpreted and evaluated in such an objective manner is a contested issue in political theory.Footnote 12 Defending the superiority of the objective approach is beyond the scope of this paper. It suffices to note here that, by “objective,” I mean that the interpretation and evaluation of religious establishment can be done independently of examining the subjective feelings of individuals, but I do not endorse the claim that such subjective feelings are entirely irrelevant. The point is that, beyond such subjective feelings, we can also rely on contextual evidence to reconstruct more or less convincingly the communicative meaning of religious symbols.
The specific way in which a religion is supported can be coercive or purely expressive, ranging from cases of public funding of religious schools to the public display of Christmas trees. In each case, there must be some reasonable and context-sensitive interpretation which aims at reconstructing the particular message that is being conveyed to all citizens. In some cases, the message will be rather harmless, like when public support primarily recognizes the particular role that a specific religion has historically played in a society. The fact that non-mandatory religious education is given in public schools but only for dominant religious groups is usually understood as conveying this kind of harmless message. But in other cases, the message could be morally objectionable, like when a state expresses a preference for a specific religion. The public display of religious symbols in spaces that have a special political meaning, such as in parliaments or courthouses, is often understood as conveying this kind of objectionable message.
Notice how in all cases of religious establishment, whether something is in fact recognized as religious or as having a particular meaning for a religion is irrelevant. We do not need to ask religious experts whether a crucifix is in fact a religious symbol, or what exactly a crucifix means for Christians because this would not help us to determine the message that a crucifix hanging on the walls of a public building can be objectively and reasonably understood as sending to non-Christians. The two are not entirely disconnected of course, since presumably how non-Christians understand the crucifix is at least partly the result of how the crucifix is understood by Christians. It matters, for instance, that the crucifix is a highly significant religious symbol in Christianity, that it has a long history of serving to make a reference to Christianity, and that it is not used as a symbol for anything else. But the reason this is relevant is ultimately because, in the context of contemporary societies, the crucifix can be reasonably interpreted as a religious symbol. In other words, the kind of information that decision-makers must rely on in order to make good decisions in cases of religious establishment is not one that religious experts have any epistemic advantage on.
In such cases, then, the challenge is precisely to determine how citizens, especially those who are not members of the publicly supported religion, might understand the message that the state sends through its support of that religion. This interpretation relies on considerations regarding the symbol itself and the context in which it is displayed. It should not reflect the personal views of individual political decision-makers but should be recognized as a reasonable context-sensitive interpretation. Consider for instance the Kitzmiller case, in which plaintiffs argued that the promotion of Intelligent Design at the local school is in violation of the Establishment Clause of the First Amendment.Footnote 13 Many experts were asked to testify regarding the religious nature of Intelligent Design: only if Intelligent Design is religious can it be in violation of the Establishment Clause. One of these experts, a theologian, testified on behalf of the plaintiffs that Intelligent Design is fundamentally a religious claim. But whether Intelligent Design can be defended without referring to the existence of some supranatural designer is not the right question to ask for the court. Instead, the only question that matters is whether the teaching of Intelligent Design can be reasonably interpreted as the promotion of something that is widely perceived as a controversial (religious) view. The fact that there is a clear religious project behind Intelligent Design is relevant, but only to the extent that it explains why Intelligent Design is reasonably perceived as something religious.
At this point, one might ask: how is such an objective approach of the interpretation and evaluation of religious establishment compatible with the subjective approach of religion endorsed earlier regarding cases of religious freedom? The reason there is no inconsistency here is because the approaches apply to very different objects. Religion, I have argued, should not be defined objectively because what matters is the importance of commitments, which can only be assessed by the individuals themselves. In cases of religious establishment, however, what matters is not whether something is religious but whether it sends a problematic message such as a message of exclusion to those who are not members of the established religion. Such message constitutes an expressive harm and, contrary to religion, harm is something that must be defined and identified objectively. In the Kitzmiller case, it is the distortion of a religious belief into a pseudo-scientific theory and its promotion in public schools that can be considered, objectively, as harmful.
Which experts, then, should decision-makers turn to in such cases? No one has special authority to deliver such a reasonable interpretation, but the interpretation should be as well-informed and as objective as possible. Importantly, the information must be context-specific and must take into account particular historical or cultural traditions. Not all symbols will be given the same interpretation in all societies or across time. The focus should be on whether the specific case of religious establishment at hand is expressively harmful, that is whether its communicative meaning is likely to send messages of disrespect or inequality to members of society. Theologians and religious leaders are not the experts here. However, there might be other experts with relevant epistemic advantage, such as academics with in-depth knowledge of the uses and meanings of particular religious symbols.Footnote 14
Conclusion
In this paper, I have argued that giving any special role to religious experts when making decisions about religion cannot be justified. The role of religious experts in such cases should therefore be limited to that of ordinary citizens. This is not because we should be skeptical regarding religious expertise in general. There are individuals who are religious experts, that is who do have authority based on their epistemic advantage regarding certain questions. But that kind of authority does not apply in the political context, as their knowledge specifically regarding questions of religious identification and religious orthodoxy is irrelevant for the specific questions that matter for decision-makers.
What kind of knowledge about religion is necessary to arrive at good and fair political decisions depends on which case it at stake. Cases of religious freedom, on the one hand, require that we know about religious commitments, their weight, and their importance to the individual’s life, and that we can balance these against the secular purposes of generally applicable rules. This means that religious individuals themselves are the only ones who can provide the required information. Cases of religious establishment, on the other hand, require that we know what message the official recognition or support granted to any particular religion is sending to all members of society, and in particular to non-adherents of the publicly endorsed religion. Such interpretation is based on a context-sensitive and objective interpretation. The legitimacy of democratic decisions regarding religion depends on the ability of states to determine when to use a subjective approach of religion and when to use an objective approach of the interpretation of religious establishment.
The upshot, then, is that decision-makers should be careful about who they consider as experts when it comes to religious questions. Religious leaders and academic experts on religious issues are routinely used by political decision-makers but reliance on their expertise is problematic. This is because they are experts only on questions of religious identification and religious orthodoxy, but assuming that these questions matter for how religion should be treated in law and politics relies on a misunderstanding regarding the nature and importance of religious freedom in a religiously-neutral state. In a state committed to principles of equality and religious neutrality, religious commitments should be treated as important and protection-worthy qua deep commitments and not qua religious commitments. What makes such deep commitments politically and legally relevant is the fact that they matter to individuals, and not the role they play in particular traditions. Consequently, religious identification should not matter because religion should not be treated as being uniquely special, and religious orthodoxy should not matter because it gives priority to religious traditions over religious believers.
The participation of religious experts in ethical commissions is equally problematic. If the ethical commission examines a question related to religion, an epistemic advantage on religious identification or religious orthodoxy still remains irrelevant. But in most cases, ethical commissions examine questions about bioethics, public health or emerging technologies which are not directly about religion. In such cases, the participation of religious experts (usually religious leaders) could only be justified based on the assumption that they have special expertise to answer complex moral questions. This, again, seems hardly compatible with the idea of a liberal and religiously-neutral state.
This is not to say that religious experts cannot play any role in making decisions about religion or in informing policy and legislation about other moral issues. However, in both cases, their role should not go beyond that of ordinary citizens.
Acknowledgements
I would like to thank Svenja Ahlhaus and Iman Al Nassre for inviting me to their workshop at the University of Münster. I am grateful to them and to all workshop participants for their valuable comments on earlier drafts of the paper. Special thanks also to Alice el-Wakil who shared her own expertise about democratic theory to help me think through the question of the role of religious experts in democratic decision-making. Finally, I am grateful to two anonymous reviewers for helpful suggestions and comments.
Aurélia Bardon is Professor of Political Theory at the University of Konstanz (Germany). Her research focuses on public justification, religion, liberal neutrality, cultural appropriation, and civility. Her work has been published in journals such as American Journal of Political Science, British Journal of Political Science, and Critical Review of International Social and Political Philosophy, she has co-edited the volume on Religion in Liberal Political Philosophy (Oxford University Press, 2017, with Cécile Laborde) and she has co-authored Cultural Appropriation: Wrongs and Rights (Routledge, 2025, with Jennifer M. Page).
Open access
