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.
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