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 Catá 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.

Reflections on Williams II

The High Court’s recent decision in the second Williams case is widely seen as a defeat for the Commonwealth.  The Court invalidated, for the second time, the federal government’s school chaplaincy program.  As many predicted at the time it was passed (just days after the first Williams decision was handed down), Parliament’s 2012 emergency legislation, the Financial Framework Legislation Amendment Act (FFLAA), was not enough to save the program.

In perhaps the most important respect, however, the Commonwealth won as it lost.  The High Court focused with laser-beam like precision on the chaplaincy aspect of the legislation and did not invalidate any other aspect of the FFLAA.  That means the 400+ other programs supported by it remain valid unless and until an individual plaintiff with standing challenges, one at a time, the constitutionality of the programs.  The Commonwealth would likely succeed on defending many of those programs given the High Court’s relatively liberal interpretation of the heads of legislative power in the Constitution; and even those programs that probably are not constitutional will not actually be struck down due to the lack of a challenge.  If one looks at the Commonwealth’s actions from a cynical perspective, the always-dubious emergency legislation bought two more years of chaplaincy and the potential for the vast majority of its other programs to remain in operation even if theoretically unconstitutional.

The simple truth is that the “loser pays” system in Australia makes it extremely rare for individuals to bring constitutional claims: the risk of owing tens or hundreds of thousands of dollars in legal fees is often too much for anyone besides unions, corporations, and wealthy individuals to take.  Citizen-activists like Ronald Williams (and, earlier, Bryan Pape) are thus the exception.  They should be applauded for their courage and willingness to further a vision of what the Constitution demands, even if we may disagree with them on the legal or political merits of their challenges.  In an ideal world, the High Court would make it easier for citizen-activists to bring constitutional claims by relaxing strict rules of standing and Parliament would encourage these attempts to enforce the rule of law by legislating, as the U.S. does in civil rights claims, that a non-vexatious plaintiff will never pay the government’s legal costs.

What will happen to chaplaincy itself?  As the High Court has stated that there is no plausible head of power to support it, no future federal legislation can directly fund it.  The possibility often floated is for the Commonwealth to use the Section 96 grants power to channel money to the states on the condition that they use that money for chaplaincy.  At first glance this seems like an easy workaround, but in truth it may create major complications and changes to how the chaplaincy program functions.  States would gain the power to negotiate over the terms, and it would be State administrative bureaucracies overseeing the spending.  Some states traditionally hostile to chaplaincy, like New South Wales, might refuse the money altogether.  Others might insist, despite the current federal government’s wishes, that the money be available for both religious and secular chaplains.  Perhaps one of the most intriguing possibilities is that state agencies could bypass the evangelical chaplaincy service providers that have gained an effective monopoly in states like Queensland.  If this occurs, the proportion of chaplains who are Christian (currently 99.5%) could become closer to that of the Australian population (61%); a clear win for religious diversity and pluralism in Australia.

The long-term effects of the Williams pair of cases remain to be seen.  Although it is clear that most forms of executive spending require independent legislative support, the precise scope of this general rule remains unclear and the government is sure to test it through a variety of clever schemes.  The disparity in reasoning in Williams I itself is problematic in understanding the boundaries imposed on executive spending: for example, much was made in that case on the role of the Senate and deliberative democracy, but all of that discussion  vanished completely in Williams II.  To my mind, the only safe bet is that the Williams cases will linger over Commonwealth spending like a dark and cryptic shadow for years to come.

Satanic "Black Mass" Stirs Controversy at Harvard

Salon had a good commentary a few weeks ago on the controversy that erupted when the Satanic Temple, a national organization, planned to perform a historical re-enactment of a "Black Mass" to one of Harvard Extension School's student clubs.  According to organizers, the event was intended to include an educational lecture on historical views on Satanism and the intentional use of blasphemy to resist dominant religions.  After a public outcry that included condemnation by Harvard's president and protests by Catholic organizations, the event was moved off-campus due to concerns that the venue could not hold everyone who planned to attend.

Ahmadis, Vigilante Justice, and Blasphemy in Pakistan

On May 16th of this year, Religion Clause Blog had a post that provides yet another example of vigilante justice and the problems faced by the minority Ahmadi faith in Pakistan.  After some Ahamadis asked a shopkeeper to remove a sticker that they felt was offensive to their religion, the shopkeeper had them arrested for blasphemy.  A teenage boy then entered the police station and shot one of them dead.

Tattoo of Buddha Gets British Tourist Deported from Sri Lanka

Catching up on some older stories today.  In April, Religion Clause Blog had a post about a British tourist who was deported from Sri Lanka because she had a tattoo of Buddha on her arm and was "hurting the religious feelings" of those who saw it, including two taxi drivers.