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Our thesis is that the degree of permissible interaction between government and religion and its policy implications is most strikingly documented in the educational arena. To support our claim, we make three arguments: (1) by the early 1970s, New York, Pennsylvania, Rhode Island, and other states were experimenting with accommodationist policies in education that neither increased religious divisiveness nor denied religious freedom. These policy experiments contributed to the Supreme Court’s new understanding of religious accommodation under the First Amendment; (2) beginning in the late 1970s, a scholarly reappraisal of the establishment clause—based on a close reading of the debates over the First Amendment in Congress and the states—was demonstrating that reasonable governmental accommodations, particularly in education, would not violate the establishment clause; and (3) that periodizing the establishment clause’s history, by focusing on state-level innovations and scholarly reinterpretations, enhances the understanding of the policy developments of the First Amendment, particularly in the educational field.
It is a powerful question, that of the English writer Mary Astell in 1700: ‘If all Men are born free’, she asks, ‘how is it that all Women are born slaves’? What seems at first glance to be a striking statement of women's rights, however, Astell's words turn out to be a full-on attack on the liberal political theory of the rights-theorist, John Locke. Her presumption is that no person is ‘born free’; indeed, all are born under a condition of subjection to God. As Astell knew full well, in England, marriage stripped a woman of rights, those to property and those to her own person, to her sexuality and to control over her labor. Since this chapter is interested in the history of women's rights, it is best to consider what sorts of rights might be considered. Political rights, after all, are only one kind of right. And the category of women also presents challenges: a woman's marital position determined her rights.
Justin Reynolds narrates how Christians argued for religious freedom in rights terms at a moment of transatlantic hegemony in the 1940s, divorcing protection for religious practice from that for religious belief. That required abandonment of older models of Christian politics, but the results have been fateful for the regulation since of non-Christians around the world.
The extent to which religious motivations helped inspire the American Revolution has generated debate among historians. Some perceive the Revolution to be the convergence of the English radical traditions of religious dissent and political protest. In this view, a strong millennialist, anti-Catholic strain in Protestant evangelicalism saw the war of independence as an apocalyptic confrontation with the Antichrist. Other historians regard religion as a secondary factor in the independence movement. Yet consideration of connections between religion and Revolution cannot be limited to spiritual influences on the independence movement. Many enslaved African Americans embraced Protestant Christianity to criticize slavery and claim a right to freedom. Native American revival movements from the Great Lakes to the Deep South fueled resistance to colonial and Revolutionary land grabs. Loyalists asserted the same right to individual conscience as the Revolutionaries. Accordingly, the narrative of religion must include the sacred motives of many more participants, including those opposed to the struggle for independence.
The book concludes with recommendations for the future of religion in America, suggesting that a commitment to pluralism and inclusive civil religion is necessary to maintain one, indivisible nation. The authors make a case for allowing for public and private expressions of religion, promoting respectful religious pluralism, carefully balancing religious mission and activism, and broadening American civil religion beyond Judeo-Christianity to foster a vibrant American religious landscape.
The chapter demonstrates how religious freedom and robust pluralism can be catalysts for social healing – benefiting individuals and communities, building social capital, and encouraging solidarity. The chapter concludes with four case studies of bridging religious divides to achieve positive change, address injustice, reach compromise, and overcome adversity.
This chapter explains the reasons for the popularity of the anti-Iranian movie Not Without My Daughter in 1990s Türkiye despite the country’s own harrowing experience with Hollywood’s Midnight Express (1977). In conjunction, I analyze a moment of failed outreach from Iranian woman reformists to a devout, US-educated Turkish woman politician called Merve Kavakçı, who was denied her seat in parliament because of her headscarf in 1999. The chapter demonstrates how US discourses and Iran–Türkiye comparisons influenced the work of Turkish and Iranian women’s activists who sought to expand Muslim women’s political participation and reform repressive clothing codes in the 1980s and 1990s.
Hobbes argues that in a “condition of meer nature,” lacking a common power, reason requires that we appoint one, lest our lives be “solitary, poore, nasty, brutish, and short.” No covenant of peace can be effective without a Sovereign arbiter to enforce it. Therefore, reason requires each of us to surrender the natural right to judge for ourselves, and to appoint a Sovereign. An effective Sovereign must have authority to determine religious practice and to raise an army – precisely the powers the “Roundhead” rebels had denied Charles I.
Starting with three good ideas – natural equality, government resting on consent, and government limited by the terms of that consent – Hobbes derives distressing conclusions. Reason requires submission to the Sovereign even in matters of conscience. The Sovereign can do subjects no injustice. Mixed government must lead to civil war. This chapter traces and tests Hobbes’s reasoning.
The text of the First Amendment explicitly protects two foundational social institutions: religion and the press. Since 2021, however, the Supreme Court has increasingly granted one of these two institutions – religion – a status of heightened constitutional privilege. In contrast, current law treats the other First Amendment institution – the press – as wholly unexceptional. However, the press is defined – from newspapers to television and bloggers in pajamas to professional journalists – it receives no greater constitutional protections than any other speaker. The Court has essentially read the Press Clause out of the Constitution, voiding its specific textual commitment, despite the absence of any countervailing constitutional provision parallel to the Establishment Clause. Until religion law’s recent exceptional turn, the law’s treatment of religion and the press were in some sense parallel. Recently, they have diverged, as press law has not kept pace with changes in religion law. In this chapter, I argue that the press should be treated at least as constitutionally exceptional as religion, and I explore what such press exceptionalism might mean in practice.
This chapter analyses constitutional intolerance on the basis of the Hungarian Church Law of 2011, which deregistered hundreds of religious organisations, attached special conditions to re-registration, and privileged a number of politically favoured religious organisations in return for their political legitimation and support. These micro-legal actions are analysed within the context of the notion of the “System of National Cooperation” and “constitutional identity”. Constitutional intolerance in Hungary appears to stem from a traditionalist commitment to protect traditional values: on the one hand, by strengthening the position of the main Hungarian churches, and on the other hand, by championing anti-liberal policies on gender and sexuality, including the prohibition from exposing minors to “gay propaganda”. But the varnish of Christianity is relatively thin: Hungarian society is thoroughly secularised with low numbers of church attendance, with language and ethnicity taking precedence over religion in their importance to national identity.
In 2012, a German district court in the city of Cologne decided that male circumcision for non-therapeutical reasons amounted to criminal assault that could not be justified by parental consent. Over a period of several months, between the decision and the drafting of the amending legislation, the German public and academy became embroiled in a remarkably heated and emotional debate about the future of the practice. But this time, the resentment did not just appear in the notorious online world but became woven into medical and legal arguments against circumcision. Even though critics of circumcision were eager to stress that their concerns were children’s rights alone, the Cologne debate sent a signal to Germany’s Jews that the law could easily turn them into strangers again. Through a close reading of this legal controversy, this chapter examines how contemporary secular legal responses to religious infant male circumcision reproduce Christian ambivalence and rely on a supersessionary logic that renders Jews as stuck in a backward past, while constituting the majoritarian secularised Christian culture as a superior locus of equality and progress.
The state of the Free Exercise Clause in U.S. constitutional law is uncertain. With an opportunity in Fulton v. Philadelphia to clarify the vitality of the current standard from Employment Division v. Smith, the United States Supreme Court has declined to do so. The lasting impact of Smith has been to move away from directly requiring government justifications for infringing free exercise. Instead, courts now use neutrality and general applicability as heuristics for government justification. Yet, relying solely on neutrality and general applicability to proxy for government justification when infringing religious exercise distracts courts from conducting a fact-based inquiry. This article demonstrates how more scrutiny of the legislative facts in free exercise doctrine may serve as a viable alternative to Smith’s flawed approach for evaluating government justifications. The author first shows empirically how more factual scrutiny—directly requiring the government to justify its actions with evidence—can benefit government and religious claimants and then discusses the normative advantages of a fact-intensive approach to constitutional scrutiny. During a moment of sharp division over religious freedom and other competing rights, factual scrutiny can be a powerful tool for handling free exercise challenges and promoting responsible religious freedom.
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.
The juridical status of persons nowadays tends to be discussed only in narrow contexts: civic status (citizen, alien, and various visa statuses), marital status, penal status, employment status, religious or ethnic status within colonial and postcolonial states, status of the fetus, corporate personal status, and so on. In the century and a half since Henry Maine’s 1861 treatise, Ancient Law, in which he discerned a general movement from status to contract in progressive societies, broad discussions of status as a general feature of law are few, so a renewed comprehensive approach to the issue remains a desideratum. This symposium, which has its origins in an interdisciplinary conference held in November 2019 at Washington and Lee University School of Law, is a step in that direction. The articles and essay gathered here illuminate the multifarious ways in which juridical status of persons overlaps with religious conceptions of persona and status. They provide grounds for seeing the religious component as distinctive because of the uniquely privileged authority attributed to divinely mandated status distinctions and the urgency of claims to religious rights. They also show how a juridical status can straddle law and religion, and how legal institutions handle such hybrid forms of status.
This book argues that liberty of conscience remains a crucial freedom worth protecting, because safeguarding it prevents political, social, and psychological threats to freedom. Influential early modern theorists of toleration, John Milton, Thomas Hobbes, Baruch Spinoza, and Pierre Bayle, I show, defend liberty of conscience by stressing the unanticipated repercussions of conformity. By recovering the intellectual origins of liberty of conscience in early modern politics and situating influential theorists of toleration in overlooked historical debates on religious dissimulation and hypocritical conformity, I demonstrate that infringements on conscience risk impeding political engagement, eroding civic trust, and inciting religious fanaticism. While this is a book about freedom, it is also a book about threats to freedom, specifically conformity, hypocrisy, and persecution. It considers the social, psychological, and political harms done by political refusals to tolerate religious differences and allow individuals to practice their religion freely in accordance with the dictates of conscience. By returning to a historical context in which liberty of conscience was not granted to religious dissenters –but rather actively denied – this book foregrounds Bayle’s argument that coercing conscience exacerbates religious fervor and inflicts significant psychological harm on dissenters, thereby undermining the goal of cultivating social cohesion in politics. In controversies on the politics of conscience, I suggest that we acknowledge that refusals to tolerate claims of conscience – while perhaps well-grounded in democratic laws and norms – might exacerbate conscientious fervor and empower resentment against the state. This Baylean intuition does not necessarily tell us where to draw the limits of toleration – what should be tolerated and what goes beyond the pale – but it does tell us something about how to approach invocations of conscience and what to expect when we deem something intolerable.
Taking Ktunaxa Nation v. British Columbia as a focal point, the author argues that the legal framing of Indigenous sacred land claims in terms of religious freedom carries significant costs. It impels courts to bracket consideration of sovereignty and territorial rights, while positioning Indigenous worldviews as nonrational rather than as dynamic intellectual traditions and ways of life that are respectably different from those embodied in settler systems of law. Genuinely fair adjudication of such claims requires not religious exemptions from general laws but recognition of the sui generis rights of Indigenous nations in relation to lands they never ceded (acknowledging historical injustice); deep differences between dominant European settler and Indigenous cultures (acknowledging that settler law is also cultural); and the validity of Indigenous environmental philosophies (acknowledging that they are no less rational than Western ones).
The article explores the connection between the rule of law and the right to freedom of thought, conscience, and religion from an empirical and theoretical perspective. The author posits that the two are not merely interdependent, but that freedom of thought, conscience, and religion is foundational for embedding the rule of law because a state needs to facilitate freedom of thought, conscience, and religion to encourage the exploration of virtue to inform consensus around society’s common norms. This virtue-building role of freedom of thought, conscience, and religion gives the human right its foundational role for creating the conditions required for embedding the rule of law. This conclusion is drawn from Martin Krygier’s analysis of the sociological conditions necessary to embed the rule of law and a comparison of the worldwide rule of law, religious freedom, and happiness indexes. To support a universal approach to the human right and to underpin the identified essentiality of it, the author proposes a theoretical approach grounded in the theory of common grace; Rowan Williams’s other-regarding communal approach to rights; and the framework for plural living together proposed by Herman Dooyeweerd. The author posits that this approach could be adapted with a plural metanarrative to accommodate dialogue around virtue building and dispute resolution within societies with very different outlooks.
This article addresses the challenge of conceptualizing the practice of religious proselytism in the context of international human rights law and its significance for the law of religious freedom. The author examines the evolving approach taken to religious proselytism within the landscape of human rights law, revealing that important aspects of religious freedom risk being lost given complex positive and negative views on proselytization. The author then explores the concept of human dignity and argues that there are relational and interactive dimensions associated with human dignity that are obscured in the international legal discourse of religious freedom. Recovering these dimensions of dignity will help address religious proselytization in international human rights law and reinvigorate the law of religious freedom.
According to diverse indices of political performance, the Middle East is the world's least free region. Some believe that it is Islam that hinders liberalization. Others retort that Islam cannot be a factor because the region is no longer governed under Islamic law. This book by Timur Kuran, author of the influential Long Divergence, explores the lasting political effects of the Middle East's lengthy exposure to Islamic law. It identifies several channels through which Islamic institutions, both defunct and still active, have limited the expansion of basic freedoms under political regimes of all stripes: secular dictatorships, electoral democracies, monarchies legitimated through Islam, and theocracies. Kuran suggests that Islam's rich history carries within it the seeds of liberalization on many fronts; and that the Middle East has already established certain prerequisites for a liberal order. But there is no quick fix for the region's prevailing record of human freedoms.