"Transnational Nonestablishment"

Claudia E. Haupt, Transnational Nonestablishment, 80 George Wash. L. Rev. 991 (2012)

This article is set in the context of the widespread entrenchment in international law of the right to freedom of religion without the concomitant (to many American eyes) entrenchment of a principle of nonestablishment.  Haupt intriguingly argues that a recent trend towards nonestablishment might be gleaned from a review of European Court of Human Rights cases dealing with religious freedom.  Haupt says:

"Under the [European Convention on Human Rights], we may be observing an emerging trend toward nonestablishment.  A number of recent [European Court of Human Rights] decisions addressing the relationship between religion and the state in democratic societies seem to implicitly assume a nonestablishment principle.  This trend is normatively supported by developments on the EU level and in individual European countries." (p. 1004)

Haupt argues that the "textual anchor" for this trend towards nonestablishment is actually contained in a clause in the Convention that serves as a limitation on the right to freedom of religion: Article 9(2).  She goes on to discuss several cases that she argues demonstrates the existence of this trend (pages 1008-1012), but also discusses an arguable counter-example, Lautsi.  She also concedes that many individual European countries have various forms of establishment domestically.

I'm not familiar enough with the Convention or the decisions that Haupt cites to evaluate how persuasive the claim of an emerging trend is.  I can say that the article is thorough, well-researched, and balanced.  The treatment of the nonestablishment principle in international law is an important topic, and well-worth watching closely.

"Law, Sociology, and Religion: An Awkward Threesome"

Grace Davie, Law, Sociology, and Religion: An Awkward Threesome, Oxford Journal of Law & Religion (2011) pp. 1-13.

This short article is an attempt to help bridge the gap between lawyers and sociologists when it comes to religion. As Davie notes, "Lawyers and sociologists are differently trained and ask different questions about religion, as indeed about everything else. They do not always listen to each other." (p. 1) Davie goes on to discuss, in a very broad and somewhat meandering way, three topics of interest to both lawyers and sociologists in the field of religion: constitutional issues, human rights, and family law/end of life concerns, all presented in a European context.

The main thesis of the article--that law is a reflection of, and often influenced by, broader social issues, is one that is as true as it is (or should be) obvious. However, the article is useful in its insightful discussion of some more specific issues. For example, on the suppression of Muslim women wearing veils in France, Davie explains:

"In France, an egalitarian approach strongly encourages assimilation into French culture, with the entirely positive goal that all citizens should enjoy similar rights. This leads in turn to a mistrust of alternative loyalties and their outward expression—whether to religion or to anything else. It follows that in France ‘communautarisme’ is a pejorative word, implying a less than full commitment to the nation embodied in the French state." (p. 8-9)

Overall, however, although well-intentioned, I don't see this article enjoying much success in persuading lawyers and sociologists to give more creedence to each other's discipline.

Christmas as a Secular Holiday

Monday's USA Today has interesting two articles reporting survey results and interviews on the often-discussed issue of whether Christmas is increasingly becoming a secular holiday because those who celebrate it often downplay or ignore the event's religious significance:

"Many Skip Christmas' Religious Aspect"

"Survey: For Many, Jesus Isn't the Reason for the Season"

"Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy"

Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (Montreal & Kingston: McGill-Queen's University Press, 2004)

Recognizing Religion in a Secular Society is a 2004 collection of nine essays about a wide variety of topics within the general category of the relationship between religion and government. The essays are more in the vein of philosophy and ethics than legal scholarship, and with an exception or two tend to have a pro-religion bent. Four of the essays are very Canadian-focussed, but the others are general enough that the collection is useful to non-Canadians interested in religion and secularism.

"Religion in the Public Realm" by H.R.H. Prince El Hassan Bin Talal is a short essay written from a Muslim perspective. The author argues that, contrary to to its reputation, Islam is compatible with democracy and pluralism and is undergoing "a gradual but nonetheless thoroughgoing process of evolution that is changing our religion as comprehensively as any revolution[.]" (p. 8). It's hard to make a persuasive case for such a controversial claim in just 8 pages, and therefore the essay is heavy on assertion and light on evidence or analysis.

"Freedom of Religion and the Rule of Law: A Canadian Perspective" is an important essay as it was written by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin. She addresses what she believes is the dilemma facing all liberal democracies: how to reconcile an individual's deep-seated commitment to religious principle with society's obligation to enforce the rule of law. (p. 16) McLachlin maintains that it is the responsibility of courts to find "in the comprehensive claims of the rule of law, a space in which individual and community adherence to religious authority can flourish." (p. 20) A discussion of the courts' treatment of religious freedom in Canada follows, and McLachlin makes no apologies for that responsibility being in the hands of the legal system. The essay doesn't tread a lot of new ground or offer new insight on how religious freedom issues should be resolved--it all comes down to "balancing" in McLachlin's mind. (p. 22) What is interesting, however, is her strong defense of courts as the institution to do that balancing.

In "A Response to Chief Justice McLachlin", Jean Bethke Elshtain challenges the view that courts are the proper forum for the resolution of religious freedom issues. Elshtain maintains that such issues should be resolved by "citizens, variously located, through a culture of democratic argument: citizens engaging one another and sorting things out, as often they will, in a rather untidy, rough and ready way." (p. 39) In this view, courts should serve only as a last resort with the democratic process fails.

William Galston's "Religion and the Limits of Liberal Democracy" is a short but interesting essay that argues against "civic totalism": the idea some liberals have of "public institutions as plenipotentiary and civil society as a political construction possessing only those liberties that the policy chooses to grant and modify or revoke at will." (p. 42) Unfortunately, there's little discussion of how things would change if "civic totalism" were abandoned.

"Human Dignity and the Social Contract" is an essay by David Novak that argues "only religious people in a democratic society have sufficient reasons for ensuring the limitation of the normative reach of that society." (p. 63) Without traditional communities founded on religion, Novak argues that the state would become totalistic because only religious people have sufficient faith and belief in the rightness of their principles to resist the ever-expanding reach of government. According to Novak, neither "civil religion" nor the "social contract" are adequate to sustain democratic principles in the absence of traditional faith communities. Novak, however, fails to explain why so many countries throughout history with traditional faith communities have displayed little respect for democratic freedom, nor how his argument can be reconciled with democratic Western Europe, where traditional faith communities have shown some dramatic losses in influence in recent decades.

Jean Bethke Elshtain returns with another essay titled "Persons, Politics, and a Catholic Understanding of Human Rights". Elshtain argues that human rights claims are fundamentally ineffective against a totalizing state unless such rights are conceived of as being anchored in religious principle. (p. 80) According to Elshtain, "Human dignity is lodged in the fact that human beings are creatures of a certain sort, creatures in fact who derive their dignity directly from God, whose personhood is a capacity for communion with God." (p. 80) The argument is interesting, but it crucially depends on the facts: has the Catholic Church been an inspiration or an obstacle to modern human rights movements? In my view, the Church's record is decidedly mixed.

Iain T. Benson's "Considering Secularism" is an analysis and critique of how the Supreme Court of Canada has deployed the term "secularism" in its judgments. According to Benson, the Court implies that "secularism" is a doctrine of neutrality towards religion, when in fact history shows that the term has its origins in the "anti-religious aspects" of G.J. Holyoake's philosophy. Benson advocates the "religion-inclusive" word "secular" over "secularism", (p. 98) but a major thrust of his essay seems to be dismay over the Court's openness to GLBT rights when such rights apparently clash with the values of traditional religious communities.

"Birth, Death, and Technoscience: Searching for Values at the Margins of Life" is an interesting essay by Margaret Somerville on the difficulties of resolving moral questions in a diverse society lacking uniformly held values. Somerville discusses several dilemmas that occur at the "margins of life": genetic screening, cloning, stem cell research, and euthanasia. Somerville adopts a fairly conservative tone in the essay and is far more concerned with the risks posed by new technologies than the potential benefits. She argues that religion can and should be an important player in the debate.

H. Tristram Engelhardt, Jr.'s "Taking Moral Difference Seriously: Morality After the Death of God" begins with a persuasive account of how "first-order consensus" on moral principles is impossible in modern liberal democracies. Engelhardt says that instead of trying (and inevitably failing) to reach such a consensus, we should acknowledge the problem and then work on how "to collaborate in the face of moral difference." (p. 117) Thus, "[i]nstead of directing ourselves to the goal of a consensus universally imposed through the force of law, we should envisage policy approaches that can encompass a plurality of peaceable moral visions, allowing uncoerced collaboration in the face of real moral diversity." (p. 121) It's not exactly clear to me what this would look like in practice, though it seems to imply a more "hands-off" libertarian approach to moral issues.

Douglas Farrow's "Of Secularity and Civil Religion" is an odd essay that includes a long and discursive discussion of Rousseau before moving on to (in my view) a legally naive discussion of how the inclusion of the phrase "Whereupon Canada is founded upon principles that recognize the supremacy of God and the rule of law" in the Charter's Preamble somehow protects the nation and its government from becoming truly "secular".

On the whole, I have to politely disagree with Witte's blurb on the back cover that "[n]o one can read this book without being shaken, and edified." I may have been mildly "edified" about fairly standard moderate-conservative views about the role of religion in society, but I can attest, under oath, I was never "shaken." Recognizing Religion in a Secular Society is a solid and useful collection of essays on a topic that has received a lot of attention in recent years.

"Religious Freedom, Democracy, and International Human Rights"

John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory Int'l L. Rev. 583 (2009)

This interesting and provocative article argues that, despite the rise of constitutionalism and concomitant religious freedom guarantees all over the world, "this very same global human rights revolution has coincided with intensifying religious and ethnic conflict, oppression, and belligerence" (p. 586) in the Middle East, Africa, Central Asia, and much of the former Soviet Union. The article accurately notes that "charges of blasphemy, seemingly as premodern as charges of heresy or apostasy, are making their way back into the headlines" (p. 599), as are punishments for religious conversion or evangelization. "Indeed, in many areas of the world, a new 'war for souls' has broken out--a battle to reclaim the traditional, cultural, and moral fabric of these new societies and a struggle to regain adherence and adherents to indigenous faiths. . . . These tensions exist under the surface of shiny constitutional veneers of international human rights instruments[.]" (p. 587) The fact that religious freedom is under attack in many countries across the globe is not news, of course, but the fact that constitutionalism--domestic or international--has largely failed to solve the problem should be a good wake up call for any legal theorists who spend too much time thinking about rights in the abstract and too little about concrete measures of enforcement.