kick-off meeting conference paper
The Secularist Appeal of Constitutional Law and Courts:
A Comparative Account
Ran Hirschl
November 2011
Funded by European Research Council
7th Framework Programme
THE SECULARIST APPEAL OF CONSTITUTIONAL LAW AND COURTS:
A COMPARATIVE ACCOUNT
♣
RAN HIRSCHL
♦
Contrary to what many liberals predicted or wished for, not only has religion not
vanished, but has instead gained a renewed momentum worldwide. From the
fundamentalist turn in much of the Islamic world to the spread of Catholicism and
Pentecostalism in the global south to the rise of the Christian Right in the United States
or the ever-intensifying struggle over the place of religion in Europe’s public life, it is
hard to overstate the significance of the religious revival in late twentieth and early
twenty-first century politics.
One of the outcomes of this religious resurgence is that the study of
constitutional law and religion has never been that relevant or exciting.
Almost by definition, constitutional law and courts in the west "reconstruct" or
"format" religion in several obvious ways, mainly by dealing with singular instances or
situations that attract tremendous media attention and relegate the rich world of religion
to matters such as whether an indigenous worker can consume illegal drugs for
sacramental purposes, whether a Sikh boy can wear the Kirpan to school, or whether
polygamy may be allowed under Dutch law.
The vast historical and sociological background of religion, the incredible
Notes prepared for the Keynote Address presentation at the ReligioWest Kick-off Meeting¸ Robert
Schuman Centre for Advanced Studies, European University Institute, Florence, October 14-15, 2011.
These notes draw on Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp. 50102; Ran Hirschl, “Constitutional Courts as Bulwarks of Secularism”, Consequential Courts: New
Judicial Roles in Global Perspective (Robert Kagan et al., eds.; Cambridge University Press, forthcoming
in 2012); and on Ran Hirschl and Ayelet Shachar, “The New Wall of Separation: Permitting Diversity,
Restricting Competition,” Cardozo Law Review 30 (2009): 2535-2560. Ran Hirschl © 2011 All rights
reserved to the author.
Canada Research Chair. Professor or Political Science & Law. University of Toronto.
♣
♦
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richness of beliefs and interpretive nuances is not something that constitutional
jurisprudence, at least in the West, tends to consider. With its inherent tilt towards
defining the entire forest by dealing with one or two trees, the constitutional domain
instills religion in the public mind as a reflection of such cases.
In an odd way, constitutional jurisprudence of religion thus conforms with
theories of cognitive linguistics that suggest that linguistic categories and usage
influence thought and certain kinds of non-linguistic behavior. Just as language may
frame behaviour, the constitutional discourse constructs or formats the discourse about
religion, channels or reduces it to familiar constitutional constructs and categories.
More generally, constitutional law and constitutional courts are often appealing
to secularist, modernist, cosmopolitan, and other anti-religious social forces in polities
that face deep divisions along secular/religious lines. What makes the domain of
constitutional law so attractive to such groups, with their well-defined worldviews,
cultural propensities, interests, and policy preferences? Several broad rationales come to
mind: (1) co-optation; (2) jurisdictional advantages; (3) constitutional delegitimation of
radical religious association; (4) political control of constitutional courts and judges;
and above all (5) the very nature and characteristics of constitutional law, its
epistemology, and its interpretive logic; and (6) the impressive religion-taming track
record of constitutional jurisprudence.
In the materials I sent, drawn from Constitutional Theocracy and other recent
writings of mine, I address the first four rationales. In this address, I want to illustrate
the secularist appeal of constitutional law and courts from a comparative perspective by
focusing on the constraining or "streamlining" effect of constitutional law on religion,
even in the constitutional settings that are most favorable to religion.
The very logic of modern constitutional law with its embedded notion of
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overarching objectives and conceptual supremacy, man-made law, state-driven
legitimacy and authority, separation of powers structure, rights provisions, emphasis on
individual’s dignity and autonomy, procedural rules of engagement, methods and styles
of reasoning, interpretive methods such as the “living-constitution” (or “living-tree”)
doctrine and the “proportionality” (or balancing) approach, and often measured
approaches to politically charged questions seems intrinsically appealing to those
advocating a moderate approach to matters of religion and state.
More specifically, most modern constitutions establish a nexus of governing
institutions and state organs whose legitimacy and raison d’être do not derive from
celestial authority. Constitutions are man-made law, adopted by mere mortals,
politicians and legal innovators who often purport to represent the authentic public will.
And so constitutions, in essence, are political and earthly, not divine. While religious
and aspirational statements are common in many constitutions, a practical, pragmatic
aura surrounds many or all of the governing structures they create. By its very nature,
a constitution – an entrenched, special piece of legislation – advances the rule of
law, often in lieu of and at times in tandem with the rule of God.
How does constitutional law's embedded inclination towards man-made law and
secularist solutions play itself out in various constitutional settings? For the sake of
simplicity, we can talk about several broad categories of state-and-religion relations:
"separationist" model, "accommodationist", and "strong establishment" or "theocratic"
That courts in "separationist" regimes of state-and-religion such as France, the
United States or Turkey take an overall religion-limiting stance is less than surprising;
two notably more difficult settings for probing into how courts reconstruct and format
religion are (i) countries where strong constitutional establishment of religion exists
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(e.g. in the predominantly Muslim world); and (ii) countries that take great pride in
advancing an official multicultural agenda.
I wish to explore how constitutional jurisprudence, even in such settings,
“(de/re)construct”, “format”, "streamline" or simply contain and tame religion and its
interlocutors as a possibly threatening alternative interpretive hierarchy to the secular
state’s constitutional order.
There is a common assumption in the discourse about state-and-religion that vast
majority of the world lives in countries that subscribe to a separation of church and
state. But the reality is that even if we leave aside claims à-la Charles Taylor that
Western secularism has never really banished religion, as of 2011, approximately half of
the world’s population, perhaps more, lives in polities that do not subscribe to the
Franco-American doctrine of strict structural and substantive separation of religion and
state, and where religion continues to play a key role in political and constitutional life.
Within that religion-laden hemisphere, approximately a billion people live in polities,
national or sub-national, that feature key elements of what I have termed elsewhere
constitutional theocracy.
At one end of the spectrum, constitutional courts even in countries that enshrine
religion as “a”or “the” source of legislation—each court within the different
constitutional framework and political context in which it operates—advance
secularizing solutions to problems of state and religion. Courts in these countries have
developed extraordinary interpretive ingenuity, the richness of which makes the vibrant
interpretive debates in the United States look rather meager. Even in such strongestablishment and religion-infused settings, various constitutional strategies have been
developed by those who wield political power—and represent the groups and policy
preferences that defy principles of theocratic governance—to “reconstruct” or
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“streamline” the meaning of religion, as well as hedge or mitigate the impact of
religiosity on politics and public policy.
At the other end, even in the most “accommodating” edge of the tolerance
towards religion continuum, constitutional courts essentially display the same secularist
sentiment as their counterparts in predominantly religious settings. Even some of the
most accommodating polities—think of South Africa’s “rainbow nation”, and Canada’s
“mosaic” conception of citizenship—are open to diversity-as-inclusion claims but resist
nonstate-law-as-competition claims that seek to establish “islands of jurisdictions” lying
outside the governance of the state and its official agents.
Constitutional courts worldwide share a secularist tilt relative to the context
within which they operate.
Let us explore a few examples from the strong-establishment world:
Egypt: In 1980 Article 2 of the Egyptian Constitution was amended to establish
principles of Islamic jurisprudence (Shari’a) as the (not a) primary source of legislation
in Egypt. This was slightly revised in 2011. It now reads: “Islam is the religion of the
State, Arabic is its official language, and the principles of Islamic Shari’a are the
principal source of legislation.”
The Egyptian Constitutional Court response: developing its own moderate
“interpretation from within” of religious rules and norms; a unique jurisprudential
matrix that distinguishes between core tenets of Shari’a (consensus in fiqh and among
contemporary religious scholars), and other tenets where multiple opinions exist. Once
an issue (e.g. dress code/full-face veil, prohibition on interest/usury, female genital
mutilation, or talaq divorce) is classified as falling within the second category, a liberal
interpretation within fiqh is endorsed.
Legislation that contravenes a strict, unalterable principle recognized as such by
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all interpretive schools is declared unconstitutional and void, while at the same time,
ijtihad (contemplation or external interpretation) is permitted in cases of textual lacunae,
or where the pertinent rules are vague, open ended, or subject to various acceptable
interpretations. Furthermore, the government has been given broad legislative discretion
in policy areas where Shari’a is found to provide unclear or multiple answers, provided
that the legislative outcome does not contravene the general spirit of Shari’a.
This is arguably the closest concrete jurisprudential illustration (see also
Indonesia below) currently on offer of Noah Feldman’s argument that Islamic law is not
inherently incompatible with interpretive pluralism or with democracy.
Pakistan: In 1973, 1978-1980, and again in 1985 Pakistani legislators departed
from the country’s rich British common-law tradition by enabling the Pakistani
judiciary to use Islam as an authoritative source in constitutional interpretation. Article
1 of the current constitution declares that Pakistan’s official name shall be the Islamic
Republic of Pakistan, and Article 2 declares Islam the state religion. The Objectives
Resolution (an annex to the constitution) was made a part of its substantive provisions
by the insertion of Article 2A in 1985, thereby incorporating into the constitution a
requirement that all laws be brought into consonance with the Qur’an and Sunnah.
Articles 227–231 (Chapter IX, Islamic Provisions) organize various governing aspects
of Islam as the source of legislation and determine the purpose and composition of the
Islamic Council. Article 227(1) stipulates that “[a]ll existing laws shall be brought in
conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah,
in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is
repugnant to such Injunctions.” In theory, this construction of constitutional provisions
may reasonably mean that legislation must be in full compliance with principles of
Shari’a.
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The Supreme Court of Pakistan, however, has begged to differ. Its response: a
holistic view of the constitution—the “theory of harmonious construction”—that
emphasizes the interdependence and harmony of the constitution’s various sections, so
that no specific provision of the constitution, including Article 2A and Article 227(1),
stands above any other provision, or enjoys an elevated status vis-à-vis any other part of
the constitution. The Court has also been able to counter-balance the pro-religious
jurisprudence of the Shari’at Appellate Bench. This has proved time and again to be a
safety net for secular interests, most recently with respect to the application of Islamic
prohibition in interest/usury (riba), religion-based criminal code (hudud), and religionbased “accountability” or “morality-police” (hisba) in the North West Frontier
Province.
In the landmark case Hakim Khan v. Government of Pakistan (1992) the
Supreme Court of Pakistan, led by Justice Ajmal Mian (who later served as chief justice
from 1997 to 1999), decided what has been arguably one of its most far-reaching rulings
since the Zia reforms. The court held that the “Islamization amendment” that was
incorporated as part of the constitution through Article 2A shall not prevail over the
other articles of the constitution. Instead, the court held that Article 2A possessed the
same weight and status as the other articles of the constitution and therefore “could not
be placed on a higher pedestal or treated as a grund norm.”
Israel: Israel defines itself as “Jewish and democratic State.” The commitment
to the creation of an ideologically plausible and politically feasible synthesis between
particularistic (Jewish) and universalistic (democratic) values has proved to be the
major constitutional challenge faced by Israel ever since its foundation. Reaching such a
synthesis is especially problematic given that non-Jews—primarily Muslims, Christians,
and Druzes—constitute approximately one-fifth of Israel’s citizenry (excluding the
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Palestinian residents of the West Bank and Gaza Strip). Even within the Jewish
population itself, the exact meaning of “Israel” as a Jewish state has been highly
contested. Not only do opinions differ bitterly as to whether Jews are citizens of a
nation, members of a people, participants in a culture, or co-religionists, but even within
the latter—arguably the most stable of these constructions—there are widely divergent
beliefs and degrees of practice. All this has taken place while over two thirds of the
world’s Jewry—on whom Israel relies for symbolic, material, and strategic support—
continues to live outside of Israel and does not subscribe to the Orthodox stream of
Judaism.
The Supreme Court of Israel responded to the increased tension between Israel’s
dual commitment to universal (democratic) and particularist (Jewish) values by
adopting a dual jurisprudential approach. On the one hand, it pursues a distinctly
liberalizing agenda in core matters of religion and state, inter alia, by subjecting the
jurisprudence of religious courts to the general principles of administrative and
constitutional law, by curtailing the jurisdiction of rabbinical courts, and by wearing
down the Orthodox monopoly over the provision of religious services.
The most important judgment regarding these matters was rendered in 1995 in
the Bavli case (Bavli v. The Grand Rabbinical Court), where the Supreme Court held
that all religious tribunals, including the Great Rabbinical Court, are statutory bodies
established by law and funded by the state and are thus, in principle, subject to review
by the Supreme Court, and must comply with the general principles of administrative
and constitutional law, e.g. due process and equality. While the Court recognized the
special jurisdictional mandate awarded to Jewish, Muslim, Christian, and Druze courts
by the legislature, it nevertheless asserted its power to impose constitutional norms upon
their exercise of authority. In the same vein, the Court ordered the inclusion of women
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and non-Orthodox Jews as members in religious councils, along with the liberalization
of rules pertaining to the solemnization of marriage, kashrut (“kosher”) and shmita
(land sabbatical) laws, and “prayer rights” in Jewish holy sites. It went on to impose
overarching egalitarian rules in matters of child custody and post-separation financial
arrangement, even between “common law” spouses.
In an important case decided in August 2009, the court followed the logic it had
laid down in Bavli to rule that although the right to cultural pluralism in education is
recognized by Israeli law, religious affiliation as a basis for autonomous schooling is not
an absolute right when it collides with the overarching right to equality.
Sidebar comment: One is reminded of the UK Supreme Court ruling of 2009
(R.(E) v. Governing Body of JFS), where seven of the nine judges applied extrareligious, general equality norms (most notably the Race Relations Act 1976) to a
denominational school’s own membership criteria, thereby ruling that the school’s
admission policy was unjustly discriminatory.
Malaysia: The Constitution of Malaysia (1963) establishes Malaysia as a unique
form of Islamic state where “Islam is the religion of the Federation; but other religions
may be practiced in peace and harmony in any part of the Federation” (Article 3), and
where “every person has the right to profess and practice his religion and to propagate
it” (Article 11.1).
The pragmatist state establishment has adopted a mainstream Islam Hadhari
doctrine (a moderate or “civilizational” Islam), which the religious opposition sees as
based on a watered-down, compromised, secularized understanding of Islam.
To add further complication, Malaysian law draws on religious ascriptions to
establish what has been termed “ethnic democracy,” where, despite the existence of
some ethnic power-sharing mechanisms and an accompanying façade of interracial
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harmony, Malay political dominance is ensured. Ethnic Malays (Bumiputra, or “sons of
the soil”), generally Muslim, are granted constitutionally entrenched preferential
treatment in various aspects of public life over members of other ethnic groups (Article
153 of the constitution). Malay citizens who convert out of Islam are no longer
considered Malay under the law and hence forfeit the Bumiputra privileges afforded to
Malays under Article 153. In 1988, an amendment to the constitution, Article 121(1A),
was introduced; it provided that civil courts “shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah Courts.”
The Federal Court of Malaysia’s response: jurisprudential duality. On the one
hand, respect for the exclusive jurisdiction of Syariah courts in personal status matters,
but at the same time, the Federal Court has effectively asserted the Court’s exclusive
authority as the ultimate interpreter of the constitution, inter alia through Article 4(1) of
the constitution, which declares that the federal constitution is the supreme law.
An example of this duality: The Lina Joy case (2007) raised the question of
Syariah courts’ jurisdictional authority over apostasy in a case of conversion out of
Islam. Ms. Lina Joy, who was born Azalina Jailani, claimed to have converted from
Islam to Christianity and argued that conversion was protected by the right to freedom
of religion under Article 11 of the Constitution, and that she had the right to convert to
Christianity without being designated as apostate. However, the National Registration
Department refused to change her name or her religious status as they appeared on her
identity card on the grounds that the Syariah court had not granted permission for her to
renounce Islam. In other words, Lina Joy questioned the hierarchy of three core tenets
of Malaysian constitutional order: Shari’a court jurisdiction over conversion, individual
religious freedoms, and the ethnic issue (conversion out of Islam questions one’s
Bumiputra, “authentic Maaly” status). Following a long legal battle, the Federal Court
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of Malaysia ruled in May 2007 that approvals of conversions out of Islam fall under the
exclusive jurisdiction of the Syariah court system. In other words, the court refused to
limit the jurisdictional boundaries of Syariah courts in Malaysia, even at the cost of
infringing on general principles of freedom of religion or formal gender equality.
But less than a year later in Abdul Kahar bin Ahmad (2008), the Federal Court
dismissed in an atypically decisive tone an argument that the 1988 amendment and, in
particular, Article 121(1A) conferred jurisdiction on Syariah courts to interpret the
constitution in matters falling under the jurisdiction of such courts. The Federal Court
stated: “The constitutionality of any law, whether a law made by Parliament or by the
Legislature of a State . . . is a matter for this court to decide, not the Syariah High Court
. . . Interpretation of the Federal Constitution is a matter for this Court, not the Syariah
court. If this court says that the Syariah Court has jurisdiction, then it has . . . Article
121(1A) was not inserted to oust the jurisdiction of this Court in matters that rightly
belong to it … The entire realm of the constitutionality of state law, however Syariah
based it may be, can be decided only by the Federal Court.”
Indonesia: Indonesia has one of the largest Muslim populations in the world;
approximately 90% of its roughly 250 million citizens identify as Muslim. One of the
five core precepts of the Pancasila (the foundational national philosophy) established
by the Indonesian Constitution (1945, reaffirmed 1959) is that “the state shall be based
on the belief in the one and only God.” Buddhism, Catholicism, Hinduism, Islam,
Protestantism, and, as of 1998, Confucianism enjoy equal status as state-recognized
religions.
The Indonesian Constitutional Court response to the increasing calls for more
Islam in public life has been an exclusive endorsement of the institutionalized version of
Islam via the Pancasila, the Quran as one among several sources of authority, and of
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state-endorsed Shari’a courts as the only permissible interpretative authorities.
In the Religious Court Law Case (2008), the Indonesian Constitutional Court
unanimously rejected a claim made by a religious student who argued that the stateimposed limitation of the jurisdiction of religious courts to particular civil matters is
unconstitutional because it prevents his full observance of Islam. The Court held that
expanding the list of subject-matters falling within the jurisdiction of religious courts is
within the exclusive prerogative of the government, and is not something the Court can
do. Justice Muhammad Alim’s note sums it up nicely (translated and cited by Dr. Simon
Butt, U. of Sydney Law): “[I]n this Republic of Indonesia, the highest law is the 1945
Constitution, not the Quran. As Muslims, we consider the Quran to be the highest law
but . . . the national consensus is that the Constitution is the highest law.”
In 2010, the Indonesian Constitutional Court went on to uphold the legality of
the country's controversial 1965 Blasphemy Law (Blasphemy Law Case). The law
officially acknowledges six religions as stated above. It prohibits religious interpretation
and activities that deviate from the basic teachings of any of these denominations. This
has been used to clump down on “unofficial” Islamic voices ranging from the
Ahmadiyah sect (whose members have been persecuted in parts of the Islamic world) to
militant Wahhabism. Proponents of Western-style rights argued that the law in its
current form infringes upon basic individual and group rights, and violates the
International Covenant on Civil and Political Rights. Drawing on a “war on terror”
impulse (Bali and other parts of Indonesia have been targets of bombings tied to Islamic
militants), the government argued that the law must be upheld to avoid interpretation-atwill by keeping the process of religious interpretation under official check.
A striking phenomenon in all of these settings is the emergence of constitutional
law and courts as the natural companions of secularists, modernists, and statists who
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seek to keep religious authority in check. The very logic of constitutionalism, with its
set of core tenets and prevalent modes of interpretation and reasoning, makes it an
attractive enterprise to those who wish to contain religiosity and assert state or civil
society authority over religious texts, worldviews, and interpretive hierarchies. Many of
the jurisdictional, enforcement, and cooptation advantages that gave religious legal
regimes an edge in the pre-modern era (see, e.g. Harold Berman’s Law and Revolution),
are now aiding the modern state and its laws in its effort to contain religion. Formal
establishment of religion may be portrayed as surrender to religion, but in reality it
helps limit the potentially radical impact of religion by bringing it under state control
(see also Adam Smith on “lazy monopolists”; or Max Weber's “from ‘kadi justice’ to
‘rational law’”). The constitutionalization of religion and the consequent subjection of
religious authority to state scrutiny turn legal and political considerations into key
determinants in the evolution of religious law. This process makes the state (and its
courts) a key player in picking religion’s official interpretive authorities and jurists and
gives the state a stake in the interpretive game. Even if the jurisdiction of constitutional
courts is formally religious in some sense, it will inevitably reflect a less militant view
of religious identity.
A same judicial antipathy toward “nonstate law as competition” or “alternative
sources of law” is evident at the “multicultural” end of the continuum.
But before we turn to the expressively multicultural world, a brief passage to
India: India is not only the second most populous country in the world but also one of
the most religious ones. Comparative sociological studies consistently rank India as one
of the most religious polities in the world. Most Indians (much like Americans or Turks)
view religion as a crucial marker of identity, as well as a significant source of reference
and guidance in their day-to-day lives.
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The tension between religiosity and secularism has dominated Indian politics
from the outset. In fact, as several scholars have pointed out, the very concept of
secularism has multiple meanings in the Indian context: the universalist, neutralist,
separation-of-religion-and-state notion of secularism often associated with Western-like
modernization and social progress; the populist vision of secularism often associated
with Hindu right-wing parties, such as the BJP, which advocate secularism with the
understanding that it will reflect the perspectives of the dominant Hindu majority; and a
“multicultural” or pluralist conception of secularism, which reflects the status quo in
India and whereby members of different religious communities are afforded some legal
recognition and jurisdictional autonomy in the realm of personal-status law. How the
Indian Constitution has emerged as a distinctly secularist one against the backdrop of
deep religiosity and multiple and contested understandings of secularism is a fascinating
political story that is for others to tell; for present purposes, the more crucial question is
how the Indian Supreme Court played a vital role in this near-miraculous evolution.
The Court’s pertinent jurisprudence has generally endorsed the first vision of
secularism described in the preceding paragraph (see Josh Goodman's "Divine
Judgment" piece), and has long been an active advocate of universal secularism (and,
by extension, the adoption of a uniform civil code) against the status quo, in which
religious minorities, most notably Muslims, enjoy a certain jurisdictional autonomy in
matters of personal status, primarily marriage and divorce.
In the landmark Kesavananda Bharati case (1973) the court introduced the
“basic-structure” doctrine, according to which the basic features and structure of the
Constitution of India are beyond the powers of amendment of the Parliament of India.
The court held that amendments and other laws that violated or attempted to change the
basic structure or basic features of the Indian Constitution would be held invalid. The
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response of the legislature to this ruling was the 42nd Amendment, passed in 1976,
which attempted to reverse the “basic-structure” doctrine. However, the court voided
the provisions of the 42nd Amendment that contradicted the basic-structure doctrine,
and the doctrine has since remained established in Indian jurisprudence.
Nonetheless, the 42nd Amendment did insert into the preamble to the
constitution the words “socialist” and “secular” so that it reads: “We, the people of
India, having solemnly resolved to constitute India into a sovereign, socialist, secular
democratic republic.” Thus “secularism” has formally been incorporated into the
Constitution.
In 1994 (Bommai v. Union of India) the Court went on to rule that “secularism”
(introduced via the 42nd Amendment, 1976) is part of the basic structure of the
Constitution.
Section 44 of the Indian Constitution states that “[t]he State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India.” However,
for a host of political reasons, not least the pressure to preserve the status quo of
religious jurisdictional enclaves, little has been done in practice to enact such a uniform
law. Nevertheless, the Supreme Court has been an avid and vocal proponent of
abolishing religiously based personal-status laws (e.g. Shah Bano 1985; Mary Roy
1986; Sarla Mugdal v. Union of India 1995; Vallamattom 2003).
In the 1999 case of Githa Hariharan (yes, the renowned Indian author), section
6 of the Hindu Minority and Guardianship Act of 1956 was challenged as violating
Articles 14 (equality), 15 (non-discrimination) of the Constitution. Section 6 of the Act
states that in the case of a Hindu minor, guardianship should be assigned to “the father,
and after him, the mother. . .” The statutory text had been understood by religious
authorities to mean “award custody to the mother if the father has died”, but the Court
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observed that such a reading would make the Act violate the equality provision of the
Constitution. It declared that “[n]ormal rules of religious interpretation shall have to
bow down to the requirement of the Constitution since the Constitution is supreme and
the state shall have to be in accordance therewith”.
To mention another example, in the 1996 case of Madhu Kishwar v. State of
Bihar, the court ruled that provisions of a tribal customary law unconstitutionally
excluded women from inheriting property from male relatives. In its lengthy opinion,
the Court quoted a scholarly work’s conclusion that “secularization of law is essential to
the emergence of the modern Indian state” and “the existence of different personal
[laws] contradicts the principles of non-discrimination by the State.”
So within the various meanings of “secularism” in India, the Supreme Court has
consistently advocated the universalist notion, and has continuously seen its role as
active promoter of a modernist vision for the new Indian state.
Canada: Canada is considered one of the most accommodating national
jurisdictions on earth in the areas of religion and, indeed, cultural diversity more
broadly. Unlike the French understanding of secular citizenship (laïcité) or the United
States’ “melting-pot” approach, Canada adheres to a multicultural or differentiated
citizenship model (or the “mosaic” metaphor), whereby ethnic, religious, or linguistic
differences are, in principle, not seen as a threat to citizenship or nationhood. This is
reflected in Canadian public discourse and in Canada’s official policy of
multiculturalism, as well as in the Charter of Rights and Freedoms, adopted in 1982.
Section 2 of the charter protects freedom of religion, Sections 16 to 23 protect language
and minority language education rights, and Section 27 states that the charter “shall be
interpreted in a manner consistent with the preservation and enhancement of the
multicultural heritage of Canadians.”
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Over the years the Supreme Court of Canada has developed a rich jurisprudence
in support of state-endorsed multiculturalism and generous accommodation of cultural
and religious difference in the public sphere. It issued landmark free- exercise rulings
concerning Sunday closing (e.g., R. v. Big M Drug Mart, 1985; R. v. Edwards, 1986)
alongside controversial rulings concerning continuation of public funding for Roman
Catholic schools in Ontario (e.g., Adler v. Ontario, 1996).
In two rulings over the last few years, for example, the Court went out of its way
to generously address faith-based claims falling squarely within the parameters of
multicultural citizenship as advancing a vision of diversity as inclusion. In Amselem, a
case involving Orthodox Montreal Jews who erected sukkahs on their balconies in a
residential condominium, partly in contravention of a boilerplate tenancy contract, the
majority advocated tolerating a practice where the individual sincerely feels that it is
connected to religion, regardless of whether the practice is required by a religious
authority. In Multani the court used a proportionality (Section 1) analysis to overturn a
Quebec school board’s decision not to allow a Sikh student to carry the kirpan (a
ceremonial dagger) because of potential safety hazards and an apparent conflict with the
school’s prohibition on weapons and dangerous objects. A decision to ban the kirpan
universally, the court ruled, was not the least drastic means to address the rather limited
potential of harm, especially when one weighed the sincerity of the student’s religious
beliefs and the fact that the interference (the ban on the kirpan) was not trivial. The
Court thus held in favor of Gurjab Singh Multani, providing a resounding statement of
the diversity-as-inclusion theme of differentiated citizenship:
“The argument that the wearing of kirpans should be prohibited because the
kirpan is a symbol of violence and because it sends the message that using force is
necessary to assert rights and resolve conflict must fail. Not only is this assertion
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contradicted by the evidence regarding the symbolic nature of the kirpan, it is also
disrespectful to believers in the Sikh religion and does not take into account Canadian
values based on multiculturalism.”
But even Canada’s multicultural policy, arguably the most accommodating
constitutional regime presently on offer, has been obliged to set boundaries. In clashes
of religion and culture, arguments that move beyond requests for accommodation (or
specific exemption from general laws) to attempts to advance alternative, extrajudicial
moral or adjudicative orders appear to fall beyond the limits of tolerance. This is the
dividing line where diversity as inclusion ends and nonstate law as competition
emerges, the latter often bringing with it the wrath of the state. Unlike the many
diversity-as-inclusion cases requesting reasonable accommodation under the rule of law
(as these terms are interpreted by the courts of the secular state), arguments that pursue
the claim that faith-based sources of authority and obligation are, or ought to be,
completely unregulated and parallel or superior to the general rule of law are typically
answered with ironclad resistance.
Early in the charter era the Supreme Court ruled in R. v. Jones that an Alberta
pastor in a fundamentalist church could not educate his three children in a church’s
basement without having any accreditation or approved home-schooling curriculum, as
required by the relevant secular legislation. In this case the Alberta Schools Act required
all parents to send their children to a public school unless the parent could show that the
children were going to an accredited private school or the government had approved the
home-school curriculum. Jones was charged with truancy under the Schools Act. In
response, he challenged the very authority of general law over the matter, arguing that
the rule requiring government approval to educate his children involved “his
acknowledging that the government, rather than God, has the final authority over the
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education of his children” and so contravened his right to freedom of religion under
Section 2(a) and his right to have control over how his children were educated, which
was protected under Section 7 (“life, liberty and security of the person”).
Writing for the majority, Justice La Forest dismissed the religion-based
challenge to state authority and held that there was a compelling state interest in
requiring accreditation. The certification procedure was in no way manifestly unfair or
contrary to any principles of fundamental justice. While the province must reasonably
accommodate religious belief in accordance with Charter principles, no extraconstitutional source of authority of the kind Jones argued for existed (in the eyes of the
state). The Court therefore bluntly rejected Jones’s assertion that he should not be
forced to apply for exemption or certification from the government because, as he saw
it, the authority to attend to his children’s education came from God, making it sinful
for him to request the state’s permission to do God’s will. Thus the jurisprudential tone
was set at the outset of the Charter era to accept claims for accommodation that fit the
diversity-as-inclusion mold but reject claims for alternative authority or inapplicability
of the constitutional law or state regulatory powers, or those falling in the nonstate-lawas-competition category.
In American constitutional jurisprudence Wisconsin v. Yoder (1972) stands out
as a landmark case of expansive accommodation that exempted members of the Old
Amish community who reached the age of fourteen from two additional years of
schooling that would have otherwise been mandated by the state’s compulsoryeducation law. As Austin Sarat and Peter Berkowitz observe, the Burger Court’s proaccommodation ruling in this case can be partly explained by the fact that the Amish
were not perceived as “disorderly” or threatening the social order. If anything, the
Court’s ruling evokes a nostalgic vision of an agrarian, self-sufficient community that
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preserves American values of the early Republic that have long since been lost in
mainstream society. In these notes’ terminology, the Court stretched the diversity-asinclusion category to fit the facts of this case, thus rescuing it from the nonstate-law-ascompetition framework.
Another example of the renewed emphasis on enforcing secular provisions
against expressions of pious resistance to the ground rules established by the civil
religion is found in the landmark decision in Bruker v. Marcovitz, in which the high
priests of constitutionalism rejected the idea that noncompliance with a contractual
obligation becomes immune to judicial review or intervention merely by virtue of
claiming religious freedom as the motivation for such noncompliance.
In the Marcovitz case a Jewish husband made a contractual commitment to
remove barriers to religious remarriage in a negotiated settlement reached with the
consent of the parties and after consultation with in de pen dent legal counsel. That
agreement was incorporated into the final divorce decree between the parties (decree
nisi); indeed, its provisions became part of the terms that enabled the civil divorce to be
finalized by the relevant state authority. Once the husband had the secular divorce in
hand, however, he failed to honor the agreement, claiming that he had undertaken a
moral rather than legal obligation.
The Supreme Court of Canada refused to enter the fray of exploring competing
interpretations of the religious obligation at issue. What remained undisputed between
the parties was that unless the husband granted a Jewish divorce decree (get) to his wife,
she could not be released from that religious marriage because the secular divorce did
not terminate or affect that relationship. Mr. Marcovitz’s refusal to remove the religious
barriers to remarriage thus left Ms. Bruker in the situation known as the agunah or
“chained wife”; despite being civilly divorced, the woman is unable to remarry or have
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children who are recognized as members of the faith community. The Supreme Court
recognized the gendered harms caused to Ms. Bruker by Mr. Marcovitz’s refusal to
deliver the get, but it was not in a position to order specific performance (e.g., directing
the husband to turn to a Jewish beth din, a religious law tribunal). Instead, the judgment
imposed monetary damages on the husband for the breach of the contractual promise in
ways that harmed the wife personally and affected the public interest generally. The
significance of this ruling for our purposes is that This decision was made despite the
ex-husband’s claims that no secular authority had the power or right to enforce damages
for breach of contract in this context because his promise to remove the religious
barriers was moral, not legal, and, as such, was a protected religious freedom. The court,
in a majority opinion penned by Madam Justice Rosalie Abella, rejected this claim. It
held, instead, that it was fully within the court’s jurisdiction to “[r]ecognize the
enforceability by civil courts of agreements to discourage religious barriers to
remarriage, addressing the gender discrimination those barriers may represent and
alleviate the effects they may have on extracting unfair concessions in a civil divorce.”
The key to understanding this decision is found in its opening paragraphs, which
conform squarely to the distinction between accepting diversity as inclusion and treating
nonstate law as competition as a potential threat that must be curtailed, contained, and
regulated.
Justice Abella wrote: “Canada rightly prides itself on its evolutionary tolerance
for diversity and pluralism. This journey has included a growing appreciation for
multiculturalism, including the recognition that ethnic, religious or cultural differences
will be acknowledged and respected. Endorsed in legal instruments ranging from the
statutory protections found in human rights codes to their constitutional enshrinement in
the Canadian Charter of Rights and Freedoms, the right to integrate into Canada’s
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mainstream based on and notwithstanding these differences has become a defining part
of our national character. ”
This is a classic manifestation of Canada’s now-canonical policy favoring
diversity as inclusion. Immediately following this declaration, in the subsequent
paragraph, the court quickly set limits to its celebrated commitment to tolerance. These
restrictions were erected precisely in response to challenges in which differences were
seen as failing to accept or submit to the overarching authority of the secular state and
the core values enshrined in its civil religion: “The right to have differences protected
does not mean that those differences are always hegemonic. Not all differences are
compatible with Canada’s fundamental values and, accordingly, not all barriers to their
expression are arbitrary. Determining when the assertion of a right based on difference
must yield to a more pressing public interest is a complex, nuanced, fact-specific
exercise that defies bright-line application. It is, at the same time, a delicate necessity
for protecting the evolutionary integrity of both multiculturalism and public confidence
in its importance.”
The final decision, then, on how to articulate this “delicate necessity” is not
reserved for those claiming exemption or immunity from general laws through raising
the nonstate-law-as-competition challenge. Instead, the state’s high priests retain the
crucial designation as the ultimate arbiters in conflicts between the tenets of the civil
religion and its competitors.
A similar trend is evident in South Africa with respect to customary law. See,
e.g. Shilubana & Others v Nwamitwa, 2009; and Gumede v. President of the Republic of
South Africa, 2009. In the clash here between customary law as male privileging and the
equality rights of women and children, the South African Constitutional Court has
clearly sided with the latter. The triumph of general state law, most notably
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constitutional law, over the legacy of customary law as a competing normative order
with values that stand in tension with those encoded in the civil religion has been
completed. The result is not that customary law no longer exists or is derecognized;
rather, it has been made palatable to the statist order, transformed, as it were, into a
more moderate diversity-as-inclusion mechanism of governing difference by disarming
a potential challenge to both the supremacy of the secular legal authority and the clout
held by the high priests of constitutionalism.
What all of these examples discussed here, drawn from recent constitutional
jurisprudence of “developed” or “developing” world countries—be they theocratic,
multicultural or anywhere in between—seem to share in common, is embedded judicial
sympathy for modernist, religion-light visions of society over traditional, customary, or
religion-driven visions. Their considerable differences notwithstanding, constitutional
courts have limited the spread and impact of traditional law or religious practices, and
have invested tremendous energy in bringing religion under constitutional check. The
courts are all committed to their constitutions’ modernist tilt, uniform application,
individual rights and formal equality provisions, and, above all, their overarching
authority. This impulse is shared with courts in polities where religion has become a
major political force.
The reason for judicial antipathy toward alternative sources of law or
interpretive hierarchies is as simple as it is powerful; what is perceived to be at stake
here is nothing less than the very authority and source of legitimacy of the accepted
civil religion. When faced with the non-state law as competition type of claims, courts
and legislatures may loudly manifest their commitment to respecting tolerance,
balancing rights, protecting the vulnerable, ensuring proportionality, and other
important values. However, they may nevertheless interpret the situation as reflecting a
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more foundational power struggle between competing systems of knowledge and
interpretation: the earthly, human-enacted constitution and the claim to speak in a
vernacular of a revealed or divine authority.
When faced with this kind of a challenge, even the most generous and evenhanded officials of the state are structurally not in a position to rule from a “point of
view from nowhere.” Instead, as stakeholders in the civil religion, they may feel obliged
to take action to restore the superiority of its sources of legitimacy, rules of engagement,
methods, and style of reasoning that are state-driven and entrenched in the secular
constitution precisely when the very foundations of the legal and social order they
protect and adhere to are (or are perceived to be) at stake.
CONCLUSION
The meanings and worlds of religion are far broader and more nuanced than
what is reflected in the prevalent constitutional discourse about religion (what was once
called “Church and State” matters). Nonetheless, throughout the world, the
constitutional domain has become a main arena for addressing the challenge of religion,
its texts, worldviews, followers and traditional interlocutors. The fact that the
constitutional domain sports a near-universal tendency towards relative secularism and
modernism regardless of the socio-political context within which it operates, suggests
that there may be deeper reasons for why constitutional law and courts are so appealing
to a- or anti-religious social forces in polities that face divisions along secular/religious
lines. Granted, instrumentalist factors are many. Effective political control over, as well
as better access to, the constitutional arena makes it attractive to political power holders
who seek to keep religious authority under check. If we look at the composition of
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constitutional courts in the Near and Middle East, as well as in North Africa, many
judges have received general legal education and are familiar with Western law’s basic
principles and methods of reasoning. This is certainly true in places such as India,
Israel, Malaysia, Egypt, or Pakistan. More often than not, the judge’s educational
background, cultural propensities, and social milieu are closer to those of the urban
intelligentsia and top state bureaucrats than to those of any other social group.
Constitutional courts are established and funded by the state, and their judges are
appointed by state authorities, often with the approval of political leaders.
Consequently, a judge’s record of adjudication is well known at the time of his or her
appointment.
But there seem to be embedded structural and epistemological reasons for the
secularist tilt of constitutional jurisprudence, even in polities where a given religion is
constitutionally enshrined a major source of legislation. The very logic of constitutional
law, with its reasoned set of core tenets, prevalent modes of interpretation, and
embedded emphasis on overarching state authority, makes it an attractive enterprise to
those who wish to contain religiosity and assert state or civil society authority over
religious texts, worldviews, and interpretive hierarchies. Ironically, many of the
jurisdictional, enforcement, and cooptation advantages that gave religious legal regimes
an edge in the pre-modern era, are now aiding the modern state and its laws in its effort
to contain religion. The constitutional establishment of religion and its interlocutors
helps the statist project of bringing religion under check. The fact that law now
emanated from the state is translated into judges’ reluctance to treat organs of the state
as subordinate to religious directives (see, e.g. Martin Shapiro; Zubaida; Feldman).
Constitutional courts are inherently unsympathetic toward alternative hierarchies of
authority and adjudication, which they constantly strive to bring under check (Robert
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Cover). There is a certain centralizing, “seeing like a state” tilt to their outlook (James
Scott). The important role of rights provisions and jurisprudence in contemporary
constitutional discourse alongside the ever-increasing cross-jurisdictional fertilization in
that area and the formation of a transnational epistemic community of jurists add to
constitutional law’s secularist appeal. The combination of anti-religious propensities
and interests, alongside creative interpretation that leads to religion-limiting
jurisprudence, may explain why constitutional law and courts have become key agents
in the grand game of (de/re)constructing and formatting religion.
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ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES
The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992
and directed by Stefano Bartolini since September 2006, aims to develop interdisciplinary and comparative research and to promote work on the major issues facing
the process of integration and European society. The Centre is home to a large postdoctoral programme and hosts major research programmes and projects, and a range of
working groups and ad hoc initiatives. The research agenda is organised around a set of
core themes and is continuously evolving, reflecting the changing agenda of European
integration and the expanding membership of the European Union. The aim of the
Robert Schuman Centre for Advanced Studies is to contribute to the public debate by
offering views and opinions on matters of general interest.
The European University Institute and the Robert Schuman Centre for Advanced
Studies are not responsible for the proposals and the opinions expressed by the
author(s).
RELIGIOWEST
ReligioWest is a four year research project funded by the European Research Council
and based at the European University Institute, Florence, Italy. It aims at studying how
different western states in Europe and North America are redefining their relationship to
religions, under the challenge of an increasing religious activism in the public sphere,
associated with new religious movements and with Islam.
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