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Religion as Liberal Politics
Published online by Cambridge University Press: 29 April 2024
Abstract
US and UK courts define religion as a belief system dealing with existential concerns, which is separable from politics, and need not be theistic. Where does this concept of religion come from? Some scholars trace it to the advent of the Protestant Reformation when religion became a matter of competing theological propositions. My analysis of both John Calvin and Roger Williams shows that those Protestant thinkers emphasized the view that religion is essentially a belief system. However, Protestantism cannot explain all of the features of the US and UK concept of religion. It is because of the liberal belief in individual rights and in popular sovereignty that early liberals like Roger Williams and contemporary courts embrace the separability of religion from politics. These courts also reject the view that religion is necessarily theistic given their liberal commitment to treating citizens that subscribe to certain non-theistic ideologies as equal citizens to citizens with theistic ideologies.
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- © The Author(s), 2024. Published by Cambridge University Press on behalf of Center for the Study of Law and Religion at Emory University
References
1 During prohibition in the United States, when alcoholic beverages were banned by the now-repealed Eighteenth Amendment to the US Constitution, sections 3 and 6 of the Volstead Act 1920 exempted the use “of wine for sacramental purposes, or like religious rites.” Volstead Act, ch. 85, § 3, 6, 41 Stat. 305 (1920) (repealed 1933).
2 Charity Commission of England and Wales, “Charity Commission Registration Decision for The Gnostic Centre,” December 16, 2019, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/324274/gnosticdec.pdf. The commission declined to register the Gnostic Centre given that it was, in its view, insufficiently religious because it did not have an identifiable positive, beneficial, moral, or ethical framework.
3 In Canada, religious organizations are classified as charitable organizations that are exempt from paying federal taxes. See Income Tax Act, R.S.C. 1985, s 149(1)(f).
4 I do not wish to simplify the historical complexity of the United Kingdom’s constituent parts vis-à-vis legal religion. As one anonymous reviewer commented, the term UK law applies only to legislation or judicial rulings that apply to the whole of the United Kingdom. Furthermore, certain features, of the religion-state relation pertain only to national subdivisions of the United Kingdom, for example, the senior clergy sitting in the House of Lords belong to the Anglican Church of England and not to the Church of Scotland (each respectively established in England and Scotland). Also, in the latter, the monarch is not the head of the church, whereas the monarch is the supreme governor of the former. There are no formally established churches in Northern Ireland or Wales.
5 I provide a more extensive analysis of legal definitions of religion in a US context elsewhere. See Adenitire, John Olusegun, A General Right to Conscientious Exemption: Beyond Religious Privilege (Cambridge: Cambridge University Press, 2020), 47–101 CrossRefGoogle Scholar.
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9 This is the approach taken by Judge Adams (discussed in more detail below) in Malnak v. Yogi, 592 F.2d 197, 207 (3d Circuit 1978).
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11 Africa, 662 F.2d at 1026 (citing Malnak, 592 F.2d at 207).
12 In so doing he was relying on his concurring judgment in Malnak, 592 F. 2d at 200-215 (Adams J., concurring).
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16 Malnak, 592 F.2d at 208.
17 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
18 Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. § 2000bb–2000bb-4 (1993).
19 Hobby Lobby, 134 S. Ct. at 2777.
20 Hobby Lobby, 134 S. Ct. at 2778.
21 Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Employment Division v. Smith, 485 U.S. 660 (1990).
22 Hobby Lobby, 134 S. Ct. at 2778–79.
23 Both pieces of legislation apply only in England and Wales. They have no application to Northern Ireland and Scotland where marriages are legally recognized under a totally different framework. Accordingly, the definition of religion provided by the UK Supreme Court here technically refers only to English and Welsh law.
24 R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77 (appeal taken from EWHC).
25 Hodkin [2013] UKSC, at para. 16.
26 Hodkin [2013] UKSC, at para. 17–22.
27 Hodkin [2013] UKSC, para. 57.
28 Hodkin [2013] UKSC, para. 57.
29 R v. Secretary of State for Education and Employment and others [2005] UKHL 15, [10], (Eng.). The relevant legislation under challenge, section 548 of the Education Act 1996, only applies to England and Wales. Accordingly, strictly speaking, the reasoning of the court applies only to the law of England and Wales, and not to Scotland or Northern Ireland.
30 Williamson v. Secretary of State for Education and Employment, HRLR 14 (QBD (Admin) 2001).
31 Ex parte Williamson & Ors, 2002 EWCA Civ 1926 (2002).
32 Ex parte Williamson & Ors, 2002 EWCA Civ paragraph 23.
33 Williamson [2005] UKHL, para. 22.
34 Nongbri, Before Religion, 26–34. See also Harrison, Territories of Science and Religion, 7–11; Cavanaugh, Myth of Religious Violence, 60–69.
35 As I discuss below, there is an exception in the writings of Tertullian, an early Christian.
36 Harrison, Territories of Science and Religion, 83–116. See also Cavanaugh, Myth of Religious Violence, 69–85; Nongbri, Before Religion, 89–98.
37 Harrison, Territories of Science and Religion, 93–94.
38 For more on this notion see Cavanaugh, Myth of Religious Violence, 85–101. For a more detailed account see Masuzawa, Tomoko, The Invention of World Religions: Or, How European Universalism Was Preserved in the Language of Pluralism (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar.
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42 My claim is not that Egypt and Iran are nonsecular states whereas the United Kingdom and the United States are secular states or that these jurisdictions do not exercise the power to say what religion is and is not in law, for, in fact, they do. My point is simply that jurisdictions define religion differently given their ideological aversion (as in the case of Egypt and Iran) or commitment (as in the case of the United Kingdom and the United States) to liberalism.
43 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 12, Constitute, https://www.constituteproject.org/constitution/Iran_1989.pdf.
44 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 12.
45 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 13.
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48 US Department of State, Office of International Religious Freedom, 2020 Report on International Religious Freedom: Iran, May 12, 2021, 5, https://www.state.gov/reports/2020-report-on-international-religious-freedom/iran/.
49 The US Department of State reports that “[a]ccording to Iranian Government estimates, Muslims constitute 99.4 percent of the population.” US Department of State, 2020 Report on International Religious Freedom: Iran, 4.
50 This was the object of litigation in Decision Regarding Communication 357/07 (Hossam Ezzat & Rania Enayet (represented by Egyptian Initiative for Personal Rights & INTERIGHTS) v. The Arab Republic of Egypt), Case No. ACHPR/COMM/357/07 (Afr. Comm’n Hum. & Peoples’ Rts. February 17, 2016).
51 Some courts have accepted that some individuals not born Muslim who converted to Islam were able to re-convert to their original religion (usually Christianity). See Oraby, Mona, “Authorizing Religious Conversion in Administrative Courts: Law, Rights, and Secular Indeterminacy,” New Diversities 17, no. 1 (2015): 69–70 Google Scholar. See also US Department of State, Office of International Religious Freedom, 2020 Report on International Religious Freedom: Egypt, May 12, 2021, 4–5, https://www.state.gov/reports/2020-report-on-international-religious-freedom/egypt/.
52 Mah. kamat al-Isti’nāf [Court of Appeal], case no. 35647, session of 29 Jan. 2008, year 61, quoted in Oraby, “Authorizing Religious Conversion in Administrative Courts,” 71.
53 US Department of State, 2020 Report on International Religious Freedom: Egypt, 3 (“Most experts and media sources estimate that approximately 90 percent of the population is Sunni Muslim and 10 percent is Christian.”).
54 US Department of State, 5.
55 Constitution of the Arab Republic of Egypt 2014 (rev. 2019), Article 64, Constitute, https://www.constituteproject.org/constitution/Egypt_2019.pdf.
56 Constitution of the Arab Republic of Egypt 2014 (rev. 2019), Article 64.
57 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 23.
58 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 2.
59 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 3.
60 Constitution of the Islamic Republic of Iran 1979 (rev. 1989), Article 4.
61 Constitution of the Arab Republic of Egypt 2014 (rev. 2019), Article 2.
62 Mah. kamat al-Isti’nāf [Court of Appeal], case no. 35647, session of 29 Jan. 2008, year 61, as quoted in Oraby, “Authorizing Religious Conversion in Administrative Courts,” 71.
63 This interpretation was implied by some comments of an anonymous reviewer.
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66 James 1:27, as quoted in Aquinas, Summa Theologiae, II-II, q. 81.
67 Aquinas, Summa Theologiae, II-II, q. 81, a. 1.
68 Aquinas, II-II, q. 81, a. 2.
69 Aquinas, II-II, q. 81, a. 5.
70 Aquinas, II-II, q. 81, a. 6.
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73 Aquinas, II-II, q. 1, a. 4.
74 Aquinas, II-II, q. 1, a. 6.
75 Aquinas, Aquinas, 278.
76 I focus here, chiefly for reason of space, on Calvin’s The Institutes of the Christian Religion. John Calvin, Calvin: Institutes of the Christian Religion, ed. John T. McNeill, illustrated ed. (Louisville: Westminster/John Knox Press, 1960). While a longer discussion might also engage the work of Martin Luther, Calvin was a more systematic writer than Luther and much of his theology is more easily accessible because it is contained in the Institutes.
77 Calvin, Institutes of the Christian Religion, 1:4.
78 Calvin, 1:43.
79 Calvin, 1:545.
80 Calvin, 1:545–46.
81 Calvin, 1:44.
82 Calvin, 1:43–44.
83 Calvin, 1:43.
84 Calvin, 1:37.
85 Calvin, 2:1485.
86 Calvin, 2:1487.
87 Calvin, 2:1488.
88 Calvin, 2:1489.
89 Some may wonder why I focus on Roger Williams rather than on John Locke, given that Locke is arguably more influential than the former. In short, Locke’s famous refusal to extend legal toleration to atheists and Catholics makes him a poor predecessor for the contemporary notion of religious freedom that clearly extends to both atheists and Catholics. Williams’s view of religious liberty is much broader, and therefore it is closer to contemporary notions. Indeed, an anonymous reviewer suggested that categorizing Williams as an early liberal is anachronistic. Yet Locke, his contemporary, is commonly regarded as a classical liberal because of his defense of individual liberty as a limitation to government. See Shane D. Courtland, Gerald Gaus, and David Schmidtz, “Liberalism,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, pt. 1.1, https://plato.stanford.edu/archives/spr2022/entries/liberalism/. Because Williams also defended individual rights and limited government at a similar time, I do not think that it is anachronistic to label Williams an early liberal.
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92 As Williams describes it, “An arm of flesh and sword of steel cannot reach to cut the darkness of the mind, the hardness and unbelief of the heart, and kindly operate upon the soul’s affections to forsake a long continued father’s worship and to embrace a new, though the best and truest. This work performs alone that sword out of the mouth of Christ.” Davis, 148.
93 Davis, 115.
94 Davis, 118–19.
95 Davis, 119.
96 Aquinas, Aquinas, 278; Calvin, Institutes of the Christian Religion, 2:1489.
97 Aquinas, Aquinas, 278.
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103 An anonymous reviewer helpfully suggested that the road to ideological pluralism in the United States and United Kingdom was very different, given their differing constitutional relationships with established churches. In particular, the reviewer suggested that the influence of the Church of England on the development of the legal doctrine on religion in England and Wales deserved detailed analysis. While discussion of this point is beyond the scope of this article, fortunately, this analysis has already been expertly carried out by others. See Rivers, Julian, The Law of Organized Religions: Between Establishment and Secularism (Oxford: Oxford University Press, 2010), 1–31 CrossRefGoogle Scholar; Sandberg, Russell, Law and Religion (Cambridge: Cambridge University Press, 2011), 17–38 CrossRefGoogle Scholar; Oliva, Javier García, Religion, Law and the Constitution: Balancing Beliefs in Britain (London: Routledge, 2019), 50–126 Google Scholar.
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107 Malnak v. Yogi, 592 F.2d 197 (3d Circuit 1978).
108 Malnak, 592 F. 2d at 206 (footnotes omitted and emphasis added).
109 R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77 (appeal taken from EWHC). An anonymous reviewer suggested that the United Kingdom’s commitment to ideological pluralism and rejection of religion as fixed identity stems from the requirements in Article 9 of the European Convention of Human Rights (ECHR) to freedom of thought, conscience, and religion. Hodkin was decided after the ECHR became part of UK domestic law through the Human Rights Act 1998. Accordingly, this suggestion is plausible. Nevertheless, the judgment of Justice Toulson explicitly refused to engage with the submissions by the appellants on their rights based on the ECHR. See Hodkin [2013] UKSC, at para. 65.
110 Hodkin [2013] UKSC, at para. 51.
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112 Some scholars, such as Salaymeh and Lavi, rather than talking about religion in law as having Protestant and liberal origins, talk about it as being Protestant and secular. Perhaps, like others such as Hussein Ali Agrama, they think that secularism is an instrument of liberal ideology. If so, they should do more to unpack the relationship between liberalism as an ideology and secularism as an instrument of liberal governance. On Agrama’s view that secularism and liberalism are historically intertwined see Agrama, Hussein Ali, “Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or a Religious State?,” Comparative Studies in Society and History 52, no. 3 (2010): 495–523, at 501CrossRefGoogle Scholar.
113 I am attracted to the view that more intellectual coherence and fairness would be achieved if the law substituted the legal category of religion with other categories such as conscience, speech, and association. This is a view held by Nickel, James W., “Who Needs Freedom of Religion,” University of Colorado Law Review 76, no. 4 (2005): 941–64, at 943Google Scholar.