The politics of religious freedom:

Beyond establishment

posted by Lori G. Beaman

Religious freedom and religious establishment have come to mean many things to many people. This is, in part, because of the shifting contours of the definition of religion itself (as has been pointed out by others in this series, including Winnifred Fallers Sullivan and Elizabeth Shakman Hurd). But it is also because the nature of freedom is contested ground. The shifting nature of these two concepts makes normative assessment—religious freedom is good, religious freedom is bad—extremely difficult to carry out in any meaningful way. Further, when people advocate for or against religious freedom they are often talking about very different things. Similarly, the measurement of establishment is equally nebulous.

One of the key words in the religious freedom lexicon in the United States has been “establishment,” generated by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”; Establishment has become the base criterion by which the possibility of religious freedom has been measured. Discussing the relationship between these two concepts has become something of an intellectual cottage industry, which has been transformed into a national export. Nations that do not espouse the sort of constitutional disestablishment embraced in the US example are often suspect, as is their ability to support any sort of meaningful religious freedom. But disestablishment as a conceptual touchstone and ultimate goal does not translate especially well into other contexts, nor, perhaps, even in the American context. A number of scholars, especially Sullivan, have seriously dented the establishment armor, pointing out that religious establishment has immobilized social institutions like law, preventing them from engaging in creative thinking about religious freedom. Nonetheless, the myth of disestablishment continues to hold sway as the place from which to begin discussions about religious freedom. Further, there is some evidence to suggest that religious establishment, defined in US terms, has created space in some jurisdictions for religious minorities in public discourse. And, equally important, it has created space for the non-believers, atheists, agnostics, humanists, and the indifferent. The UK provides perhaps the best example of this, although the situation there is informed by historical and global confluences and tensions over who has a voice that are too complex to review here.

My argument is not simply for a critical assessment of whether or not establishment exists, but for a shift in analytical focus from the constitutional discourse on establishment and its attendant discussion of church-state relations to one that begins with different assumptions and questions. If the state is always assumed to have a relationship with religion in one form or another it might then be possible to move out of the binary of establishment-disestablishment, which would in turn shift the focus to mapping the contours of the myriad and dynamic ways in which that relationship works. It might then also be possible to step away from the freedom-disestablishment association that stifles critical and creative analysis. This in turn could prompt a more sophisticated treatment of power that would embrace a relational understanding of power relations rather than a narrowly hierarchical one. Although it might be objected that an assumption of a relationship goes too far, evidence from a number of liberal Western democracies suggests that this sort of acknowledgement is realistic and accurate.

An example of the type of analytical shift in direction being suggested is illustrated by the work of James Beckford in “The Return of Public Religion? A Critical Assessment of a Popular Claim.” In this article Beckford reviews the relationship between the British state and organized religion. He reflects on the often heard yet contradictory statements that religion is enjoying a resurgence in the public sphere and that religion is systematically excluded from public life. Beckford addresses this contradiction by pointing out that the state, political society, and civil society have never been neatly divided in Britain. He then outlines the British government’s strategy for engaging with religion as a strategy for both blurring the line between state and civil society, and for managing religious and ethnic diversity. He doesn’t use the word “establishment” or “religious freedom” once in his article, and only a couple of times specifically mentions “church-state” relations. Yet the analysis is rich in insight in terms of the ways in which religion, spirituality, state, public, and private are layered through each other. Beckford also highlights the relational rather than hierarchical nature of these engagements.

It might be useful to complicate the discussion about religious freedom, then, by embracing two assumptions: first, that religious freedom means different things in different contexts, and thus an interesting analytical launching place might be engaging in an exploration of how (or whether) religious freedom is being used and by whom, rather than whether a state has an established religion; and second, that all states have a relationship with religion(s) and that it is not, in fact, always possible to make clear distinctions between the state and civil society in the first place. What emerges as being important, then, is the exploration of the nature of that relationship, the framing of interests, and the ways in which interests collude or clash. Does this mean that an analysis of (dis)establishment is never relevant or should be completely displaced from discussions of religious freedom? Not necessarily, but decentering establishment can yield some fruitful results. To illustrate, I’ll draw on a Canadian example.

Is there a religious establishment in Canada? Yes and no. The constitution does not explicitly address establishment, but instead guarantees religious freedom in the Charter of Rights and Freedoms. However, the preamble to the Charter states: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law,” and in Section 29 recognition is given to the historic compromise that supports state funding for Protestant schools in Québec and Roman Catholic schools in Ontario. Public discussions of religion sometimes casually mention that “we have separation of church and state” in Canada, even though this is not constitutionally true, and, in fact, evidence from the constitution itself as already noted would support the opposite conclusion. David Martin has argued that there is a shadow establishment, and others have suggested similar conclusions. I have argued that there exists a Christian hegemony, which is embedded in social institutions and which shapes not only the ways that religion is imagined, but also the construction of nation, values, citizenship, conceptual drivers like multiculturalism, and Othering discourse.

As Beckford argues is the case in Britain, in Canada too the divisions have never been clear between state and civil society. The services of religious organizations were called upon by the state, for example, to deliver schooling to aboriginal children. This was a collaboration that met the needs of both religion and state, the former to save the souls or missionize those they viewed as being uncivilized and in need of being saved, the latter to civilize and nation-build. Does disestablishment make sense in the Canadian context? Not really. The ongoing relationship between the state and religion, and their close intertwining to the point of being indistinguishable mean that religion is so embedded in the social structure and institutions of this nation that it is impossible to untangle them from each other. Therefore, any claim to disestablishment ignores the historically embedded power relations that shape contemporary developments. One of those developments has been the decision by the Canadian government to establish an office of religious freedom.

In its election platform released in April 2011 the Conservative Party announced that it would pursue the establishment of an office of religious freedom. In the June 2011 Throne Speech the (by then) conservative majority government announced that it was indeed establishing such an office. On October 3, 2011, the government held its first consultation meeting about the office. Subsequently the government came under criticism, primarily for its limited, conservative-Christian-heavy consultation process and for the suspicion that the office would be primarily aimed at securing and protecting Christian missionizing. Several things are of interest for the purposes of this discussion: first, one of the 6 people consulted was Thomas Farr, who was the first director of the US International Office of Religious Freedom; second, through ministers’ speeches the government has consistently linked democracy and religious freedom, stating that “The long history of humanity has proven that religious freedom and democratic freedom are inseparable.” Finally, both establishment and disestablishment regimes (Canada being the former, the US the latter) have been able to support the idea of an office of religious freedom. In the Canadian context the accusation that the inclusion of an office of religious freedom violated the principle of separation of church and state was countered with the fact that Canada does not, in fact, have a separation of church and state and that this idea is imported from the US. In the US, with its official disestablishment, the office of religious freedom has been justified as an expression of the commitment to this ideal. It is clear that establishment, quasi-establishment, or disestablishment are of little relevance in this. The more telling discussion relates to how religious freedom is being defined, by whom, and for what purposes. Preliminary descriptions of the Canadian office, for example, state that the office will “monitor religious freedom around the world, to promote religious freedom as a key objective of Canadian foreign policy, and to advance policies and programs that support religious freedom.” But it remains unclear what exactly this means: Will the office of religious freedom concern itself with Latter-day Saints who proselytize globally? Will it worry about Jehovah’s Witnesses forced into military service in South Korea? Will the office of religious freedom worry about Muslims in Switzerland who cannot build minarets, or Muslim women in France who cannot wear the niqab? Or will it concern itself with matters closer to home, like niqab-wearing women in Canada who must strip off their face coverings to take the oath of citizenship? Whose religious freedom will be defended and where?

Finally, while a critical analysis of the various ways in which religious freedom is deployed is important, equally crucial is suspicion about the ways in which religion is constructed by majorities as “culture,” thus displacing discussions about religion and religious freedom altogether. The 2011 Lautsi and Others v. Italy decision in the European Court of Human Rights, developments in the Canadian province of Québec, and case law in both the US and Canada serve to make the point. In Lautsi, a crucifix and Roman Catholicism were transformed in arguments by the Italian state from religious symbol and religion to cultural symbol and universal values. Thus, the crucifix in an Italian classroom wall was not ‘religious’ but ‘cultural’ and part of Italian heritage. A similar sleight of hand occurs in the Canadian province of Québec when the Bouchard Taylor Commission Report recommended that the crucifix be removed from the Salon Blue, which is the provincial legislature. The day the report was issued the National Assembly voted unanimously to keep the crucifix, stating that it was an important symbol of Québec’s heritage; Québec historically has had a Roman Catholic hegemony. Early post-Charter Sunday closing cases in Canada engaged in similar transformative exercises, most notably in R v. Edwards Books and Art Ltd., when the Supreme Court of Canada declared that Sunday as a day of rest had nothing to do with Christianity. A similar transformation of religion to culture occurs in the United States, perhaps most famously in the Lynch v. Donnelly case.

By constructing the practices of religious majorities as culture rather than as religion they become a benign presence in the face of the (dangerous, offensive, alien) religious practices of the Other or of the (also dangerous) godless atheist. By pushing past establishment frameworks and exploring the ways that particular religious traditions/practices/beliefs are woven though social institutions and practices, a richer exploration of religious diversity and religious freedom becomes possible.

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