Wednesday, June 25, 2014

Who's Winning: Freedom of Religion or Theocracy?

Below is a column submitted to newspapers based upon my article Religion and New Constitutions: Recent Trends of Harmony and Divergence:

Who’s Winning: Freedom of Religion or Theocracy?

In historical perspective, the spread of freedom of religion over the past century is frankly startling.  Country after country has embraced constitutionalism, usually with a full bill of rights attached.  The UN Declaration of Human Rights and other international agreements have continued and accelerated this trend. 

Yet, every trend can give rise to resistance.  It should be no surprise that religious fundamentalism is on the rise in many countries with the goal of explicitly aligning church and state.  Fundamentalism is not limited to any one faith, although Islamist movements have received the most media attention.  The formal recognition of Islam in the new constitutions of Iraq and Afghanistan, for example, dismayed many who assumed that Western influence would lead to officially secular governments.

Where then does the world stand?  Is freedom of religion still on the rise or has theocracy turned back the tide?  As Larry Cat√° Backer phrases it, “is there now arising a theocratic constitutionalism in opposition to and competing with conventional constitutionalism for a place as one set, or the supreme set, of organizing principles for states?”

There are many ways to answer this question.  A common method in the scholarly literature is primarily anecdotal in nature and involves a discussion of one or more prominent examples including Iraq, Afghanistan, Libya, and Egypt.  This method usefully provides extensive detail on the history and textual provisions of particular constitutions; however, because it is anecdotal in nature, it is dangerous to generalize global trends from such a small sample of data.

In a recent article in the McGeorge Law Review, I approached the issue through another method: studying every new constitution adopted by a country around the world since the year 2000. The study sorted references to religion in new constitutions in the following ways: Preambular or Ceremonial; Establishment of Religion; Religious Freedom; Separation of Religion and State; Equal Protection of Religion.  Most constitutions had references in multiple categories.  By examining how each constitution dealt with the topic of religion, I was able to reach some tentative conclusions about the freedom versus theocracy question. 

The results are fascinating.  Of the forty new constitutions studied, all but two included an explicit guarantee of religious freedom.  All but five guaranteed non-discrimination on the basis of religion.  Perhaps most surprisingly, over half included a provision directly separating church and state or designating the government as “secular.”  Countries as diverse as Hungary, Niger, and Ecuador included anti-establishment provisions.

In contrast, although many constitutions included religious references in preambles and other symbolic provisions, only eleven of the forty erected an official state religion.  The majority of these were predominantly Islamic countries (Iraq and Afghanistan included), but two were Buddhist establishments (Thailand and Bhutan) and one country established multiple religions (Myanmar).  However, nine of those eleven constitutions with establishment provisions simultaneously guaranteed religious freedom.  How that conjunction works in practice is an interesting question that would require further, country-by-country research.

Formal constitutions aren’t everything, of course, and should never be taken as a substitute for the “on-the-ground” political reality in a particular country.  The surge of ISIS in Iraq is a good example.  As one indicator of global trends, however, the fact that most drafters of new constitutions chose to embrace freedom of religion and secularism over establishment should be encouraging to those of us who believe in the fundamental principles of liberal democracy.

Jeremy Patrick is a Lecturer in the University of Southern Queensland School of Law and Justice.

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