And the possibilities, at least in those first days, were seemingly endless. Some stressed continuity with the past, riffing off the Sudan People’s Liberation Movement (SPLM, the former southern rebel movement, then political party, and the current government of South Sudan) secretary general Pagan Amum’s comments at the independence ceremony when he lowered the old Sudanese flag for the last time—in preparation for the raising of the South Sudanese flag—telling the crowd that he would not be handing it over to Khartoum in a gesture of good riddance, but rather would hold on to it in the soon to be formed national archive, in memory of the shared history, the shared struggle, and indeed the shared future that northerners and southerners have and would continue to experience together. Others imagined a cleaner break. One bilingual sign held high at the independence ceremonies read, “From this day our identity is southern and African and not Arab and Islamic. We are not the worst of Arabs, but rather the best of Africans” (the sign was, I should note, in both Arabic, from which I translate, and choppy English, held up at an ceremony largely conducted in Arabic, still the de facto lingua franca of South Sudan despite official efforts to switch to English, and thus belying the difficulties inherent in making such a clean break overnight). The discursive historical reality of independence, of sharp bold-lines on the map, was matched in intensity by the sociological reality of entanglement (by choice and by force), of blurry lines. North and South could not be so easily disaggregated.

The tension between a model that stressed continuity with the past and one that proposed a break with what was certainly a painful history plagued Muslim South Sudanese perhaps most of all. Muslim South Sudanese, who make up a significant portion of the population, are individuals whose very identity challenges the distinct categories for which “clean break” models of partition strive. Islam came primarily from the North (from which the South was now separating), tying together families, trade routes, and pilgrimage networks, despite aggressive British colonial efforts to stop its spread. These links were not so easily sundered. While many non-Muslim South Sudanese had assumed that Islam was a political identity, somehow tied to the North, and imagined mass-apostasy coinciding with southern independence, South Sudanese Muslims insisted that to be southern and Muslim was not a contradiction in terms. Continuity with a past in which southern Muslims suffered discrimination in the North for being southerners and in the South for being Muslims at a time of rebellion against (at least in part) state-driven Islamization, did not seem like a good option. (I should note, though, that this latter discrimination was by no means universal: Muslims were part and parcel of the SPLM throughout the war.) Though the sentiment certainly was not universal, the vast majority of Muslims with whom I spoke in the summer of 2011 favored southern independence, a clean break from the North, and were actively debating how Muslim identity had changed under the new political arrangements they’d entered (South Sudanese Muslims had gone from being part of what demographers call a national majority, to being a “minority group” literally over night, and without traveling anywhere). The nature of “South Sudanese Islam” was being renegotiated, but most seemed to agree that the particular cultural stamp of the North would have to be transcended if the name of Islam was to wash out the stain of its bad reputation acquired during the war and flourish in the new state.

On the other hand, the notion of a clean break that sought to define South Sudan as explicitly non-Muslim (whether or not it was thereby “Christian” was a topic of debate, to which I will return below) and non-Arab made South Sudanese Muslims worry that the “New Sudan” imagined by John Garang, which was to embrace Sudanese of all religions and ethnicities, was quickly taking on an ethnically and religiously exclusive color. Muslim communities feared persecution in the new state after decades of civil war in which Islamization, if not Islam, was portrayed as a prime adversary to southern flourishing. The uneven (but active) banning of headscarfs in southern public schools after the signing of the 2005 peace agreement, which reverted control of the South to southerners, led to protests in at least one major Muslim center I visited (the city of Malakal) and the founding of a Muslim girls school there. The banning of religious political organizations forwarded by the new Advisor to the Presidency on Religious Affairs was taken by many Muslims to be directed at Islam, as Christian majority parties (under secular names) were certainly plentiful. Such incidents further raised suspicion that the equality and secularism that the new government was promising was a coded way of promoting “tyranny of the majority” and a state from which Muslim communities would be marginalized. The southern state’s resistance to a quota system (in which a certain amount of ministries or parliamentary seats would be given to Muslims qua Muslims), under the logic of blindness to religious identity, led to a short-lived but significant armed rebellion in Northern Bahr al-Ghazzal—active during the time I was in South Sudan, but now quelled—demanding 30 percent representation for Muslims in the new government.

The desire to “politically transform difference into sameness,” as Saba Mahmood has put it, has certainly been at the top of the state’s agenda in its quest to establish something called a South Sudanese citizen out of the dizzyingly diverse cultures, languages, and religions that make up the demographic landscape. What that “sameness” was to consist in, and what degree of diversity was still possible in spite of it, was a primary object of debate. My recent research—part of a multi-site project on religious minorities in Sudan and South Sudan following partition, conducted by Centre d’Ètudes et de Documentation Èconomique, Juridique et Sociale (CEDEJ) and the University of Khartoum—explores the mechanics of nation-building in South Sudan with particular attention to the fate of Muslim minorities following independence. Through field research in the national capital of Juba and the northern (South Sudanese) city of Malakal, I hope to understand what it means to be constituted as a religious minority under the regime of international religious freedom at the very moment in which this resignification—from “southerners” practicing Islam to a South Sudanese minority community of believers with a specific retinue of national rights and duties—takes place.

In a nation where neither tribes, nor regions, nor even individual families are traditionally divided on the basis of religion, how will South Sudan’s adoption of internationalist languages of religious freedom, and the concomitant constituting of Muslims as a distinct demographic, affect the existing social fabric in which it is easy to find households containing Muslims, Christians, and adherents of local traditions under the same roof? While there certainly have been Muslim communities across the South for some time, I was surprised to find that the vast majority of Muslim leaders did not emerge from those communities but were converts. Why have these “new Muslims” taken on such a prominent role in the organizational structures of the emergent Muslim minority? What makes them, rather than the entrenched Muslim communities, so much more suitable for the formation of a Muslim civil society that the state seems to both fear and demand?

Such individuals live in households that are extremely diverse (a father who follows the Prophet Ngundeng, a Christian Mother, and Muslim son is not at all uncommon) and one wonders how (or perhaps if) this status quo will be interrupted by the emergent notion of confessional community that is being forwarded by Muslim organizations and state demographers alike. I came to recognize early in my research that, though old established Muslim neighborhoods existed, the bulk of my work was being done not with Muslim communities, but rather with Muslim individuals and the associations they had joined. Most of these Muslims seemed to experience religion as a mode of being that did not necessitate the discarding of other modes of belonging (tribe, family, social class, etc.). Indeed, even the associational spaces themselves (Muslim councils and organizations, mosques, etc.) were not as restricted as one might assume. For example, at the Islamic Council for South Sudan office in Malakal, a good portion of the young men hanging out in the inner courtyard were in fact Christians and followers of traditional faiths: this space was by no means restricted as a Muslim gathering place. The modern state’s voracious appetite for categorization, and that of those who have been stamped by its logic, may have trouble coming to terms with the lack of neat lines demanded by international regimes of religious freedom in order to dole out their goods (protection from persecution, the development of networks with global “communities of faith,” etc.), neat lines drawn on a map wherein what constitutes religion and religious belonging are far more settled than they are on the ground.

One wonders what particular iteration “religious freedom” will take in South Sudan. The Transitional Constitution of South Sudan nowhere mentions “Freedom of Religion” but rather offers a very specific retinue of “religious rights” (Article 23). On the ground, the new government has not been shy about managing and taxonomizing religions, minority and majority—policing the line that divides religion and state, and even religious orthodoxy itself. Government offices registered “Faith Based Organizations” and often rejected applications of, for example, “Christian” organizations “if the constitution of a particular group is not lining up with the Biblical chapters or verses,” as one Inspector in the Bureau of Religious Affairs put it to me. This effort formed part of a program to protect the nation from what he called “cults,” although which groups would qualify as Christian and Muslim and which as “cults” was still in flux during the time I was there. One wonders if these inspectors’ interest in doctrinal purity might indeed be a coming to life of Beth Hurd’s notion that the prevailing “foreclosure on religion without belief” by international regimes of religious freedom “leave little room for dissenters and doubters on the margins of or just outside…‘faith communities’….[for] it endows hierarchical authorities with the power to represent and pronounce on what is or is not religious belief deserving of special protection or sanction.”

I do not wish to come to premature conclusions about what form “religious freedom” will take in South Sudan. I was there in the early days of the formation of this new state and the situation was still very much in flux. The intelligence and good will of the government servants I met—who had often left comfortable lives abroad to suffer much risk and hardship in service of building a new Sudan—suggests to me that a bright future is certainly not out of reach. The new state of South Sudan promised (and in its early days certainly has achieved) a very different approach to the relationship between religion and politics from that of the Sudan southerners had lived under until July 9, in which the central government in Khartoum had attempted to craft an “Islamic state.” However, the variety of secularism to be instantiated in the new state, particularly in a context in which voices calling for a Christian nation were still very loud, was still up in the air. As I walked the streets of Juba, listening to the new national anthem played over and over (“Oh God, we praise and glorify you, for your grace on South Sudan”), I wondered not only where Muslims would figure into the imaginings of this new nation, but where all the “African traditional religions” (or “ATRs,” as government officials called the variety of ancestor veneration, spirit, and divination practices extent in South Sudan) would figure into the national image. While there was an explicit attempt to give time to Muslim and Christian prayer in official fora, such as at the independence ceremony when a Christian benediction as well as verses from the Qur’an were recited, symbols of these traditional practices were not present at the podium. The official party line seems to be that ATRs should be represented within the state, constituted as distinct faith communities (“diin”s, as expressed in my Arabic-language interviews with government officials), minorities on the same footing as Islam and under the shadow of the dominant Christian faith. However, scholars of South Sudan (affirmed by a personal communication with Dr. Cherry Leonardi) point out that to think of such “traditional” practices as distinct confessions does not represent the reality of South Sudanese who may identify as Christians and at the same time see no contradiction in maintaining these rites and rituals. One wonders, then, what the state’s attempt to constitute such practices as discrete “religions” (and distinctly not part of what it means to be Christian) will have on those engaged in such practices, and whether it will make this kind of lived hybridity between Christianity and other modes of approaching the divine less sustainable, thus rendering Christianity and ATRs as much more polar forms of identity than they are currently. Nevertheless, it is unclear whether an official Council of Traditional Religions, constructed to represent ATRs, will indeed be forthcoming, as some officials promised me it would, for indeed others assured me that traditional religions had no place in South Sudan’s future, being relics of a past that Christianity had superseded.

The seal of the new Bureau of Religious Affairs (at right) expresses graphically what the national ideal may come to be: a large cross at the center, with a smaller hilaal (representing Islam) and a spear (representing “traditional religions”) at either side, indicating, it seems, a Christian-majority state in which other “religions,” safely construed and confined as minorities, would be protected. What exactly will have been freed through this arrangement, and what this freedom will entail for the newfound minorities and majorities, is yet to be determined.

For a start, when talking about secularism we need, indeed, to make “distinctions”: (i) Does secularism rely on the secularization of societies? Of states? Of cultures? (ii) Do we intend to refer to actual practices and institutions, or to existing norms? If we address only norms, as Bhargava does, we should distinguish between (iii) the “norms embedded in the informal politics of states (and non-state actors),” (iv) the “norms embedded in formal, institutional politics and articulated … in laws enacted by legislatures, executive decisions, judicial pronouncements, and constitutional articles,” and (v) the “normative ideals … expressed in doctrines, ideologies, and political theories.”

Empirically, secularization, in all its different meanings (decline, subjectivization, individualization, privatization of religion), is always a matter of degree, and political theorists should carefully avoid advancing the impression that fully secularized societies and cultures exist; they don’t exist in the “affluent Western countries,” particularly those in Western Europe, nor in “north-western Protestant Europe,” nor in the rest of the world, including the US. Furthermore, a fully secularized state, in the sense of a state in which there is a complete or strict separation of state from organized religion, does not exist—not in the US nor in France, let alone in the rest of the states with liberal-democratic constitutions. If we talk about “secular states” (as Modood and Bhargava do) we should specify what we mean by secularity (e.g. the “two autonomies” of the protection of the state from religions and religions from the state). More importantly, we should try to avoid sweeping generalizations (e.g. the famous comparisons between Europe or Western Europe and the US), and we should carefully avoid conflating the construction of country-specific models of secularism—meaning most often the legally institutionalized relationship between the state and organized religions (churches)—so as to adequately represent the actual muddy state of affairs: states are internally differentiated (trias politica) and, similarly, administrations (different departments) do quite diverse, often contradictory things.

All existing, institutionalized relations between states and (organized) religions are under pressure by increasing religious diversity, particularly by the different varieties of Islam (the old and new “other” of Christianity). In this regard there is broad and important agreement between Modood, Bhargava, and myself:

1. There is no general hostility towards religion in “secular states,” not in the US and, generally, also not in most European states. And there is still no “effective challenge” to “political secularism” from fundamentalist Muslims, from predominant churches, or from “radical secularists.” Yet this is only true when qualified with a degree of reservation: we see increasingly aggressive secularist mobilization, combined with right-wing populism in many European countries such as the Netherlands and Denmark.
2. The claim-making of Muslims in regard to “the place of religious identity in the public sphere”—or, in my language, in regard to the visible and symbolic recognition of (non-Christian) religions—spurred highly dramatized conflicts (politics of symbolic action) and a completely ambivalent reactive re-invention of national Leitkultur that tends to narrow willingness and scope to accommodate religious claims and to “destabilize” or “jolt political secularism” whether one wants to call this “crisis” or not.
3. In combination with dramatized threats of Islamist terrorism, wars against terrorism, increasing securitization, and dramatized stories of “failed integration” (marked by a supposed loss of social cohesion, political unity, and loyalty) the space for accommodation of religious claims (as well as houses of worship, education, care, workschedules, etc.) is shrinking in the predominant political rhetoric in many European states, but happily not so in all of them equally and certainly not so, or at the same pace, in actual practice.

My main disagreements with Modood are:

1. His “moderate secularism” masks important differences in symbolic, institutional, and political accommodation of religious diversity amongst countries characterized by various regimes of selective cooperation between state and church in Europe (also neglected or at least not specified by Bhargava).
2. The link between institutional arrangements of state and religions and multiculturalism is historically and empirically not convincing. It neglects important differences not only amongst countries but also between the various minorities covered by multiculturalism policies. Opening up Christian-biased arrangements to broad and deep religious diversity is different from his project concerning “how to multiculturalize moderate secularism.” In addition, the accommodation of religious diversity is institutionalized in the law and practices of most European countries much more deeply and in greater detail when compared with the fairly recent institutions and policies of multiculturalism. In my view, his proposal is counterproductive in most other European countries, but it may turn out to also be so in the UK.
3. His belief that “moderate secularism” provides the resources and the institutional arrangements for such an opening is naïve: moderate secularism is, as Bhargava suggests, “irretrievably flawed” because it defends varieties of constitutional establishment of one (England, Scotland, Norway, Denmark) or two (Finland) Christian religions or Churches or national religions, inevitably sending the wrong, exclusive symbolic message. In principle and practice, constitutional establishment is in tension with equal religious freedoms and with non-discrimination and equality before the law, even if this tension may not pass the threshold of a serious violation of rights guaranteed in International and European conventions. Criticism spelling out the inherent limitations of establishmentarianism need not involve immediate practical or political claims for pluralizing establishment or for disestablishment—in the same way that criticism of constitutional monarchies need not involve urgent practical claims to replace them with republics—but it is important for two reasons. First, it helps us see why removing the cultural and institutional biases will, as Bhargava notes, “not be easy” and, second, more distance from Oakeshottian pragmatism and institutional tinkering is needed to properly address the issue of more adequate institutional arrangements under conditions of deep religious diversity.

So I agree with the main points of Bhargava’s critique of moderate secularism. It can, of course, be doubted whether Europe lacks the “conceptual resources” to deal with deep diversity, but it is quite clear that none of the existing institutional arrangements, given all their diversity, are adequate or convincing, let alone perfect, and some are not even minimally satisfying. The “selective cooperation” countries suffer from institutional rigidity, from Christian bias, from institutionalized exclusion or serious discrimination of old and new non-majority religions. Examples of the so-called strict separation models, such as France or Turkey, suffer de facto from the same flaws and, in addition, violate individual religious freedoms and meaningful collective or associational autonomy of religions. Is then the “non-establishment” model of the U.S. that is not based on “secularist hostility” the viable alternative? Even if one takes into account that the U.S. does not live up to “strict separation” or the famous “wall of separation,” the model itself also suffers from three significant limitations: (1) the absence of meaningful exit options that are guaranteed by a minimally decent welfare system; (2) interest representation restricted to informal ways of influencing governments (networking and lobbying) that privilege big, old, and politically and culturally established (commonly Protestant) religions because they have access to huge power resources; and (3) the rigid public/private split, well known from the treatment of political parties, which also has counter-productive consequences when it comes to all kinds of welfare, social services, and experiments in education.

Does then the “Indian model of secularism”provide a way out of the pitfalls of the “two mainstream western secularisms” if the inter-communal practices are taken in their “best moments” and if “the country’s constitution” is “appropriately interpreted”? According to Bhargava’s interpretation, the Indian model is “inextricably tied to deep religious diversity”; it has a “commitment to multiple values such as liberty and equality … peace and toleration”; it accepts “community-specific rights”; “it does not erect a wall of separation”; “it is not entirely averse to the public character of religions” (public recognition without establishment); “we do not have to choose between active hostility and passive indifference towards religion” or “disrespectful hostility” and “respectful indifference”; it does not exclusively fix commitments “to individual or community values” and does not mark “rigid boundaries between the public and private.” As a “contextual secularism,” it allows and asks for a balance between “different, ambiguously but equally important values” by democratic politics or by constitutional courts.

Apart from the fact that these characteristics often conflict with each other and may work counter-productively in practice, Indian secularism is, nonetheless, in my view intrinsically linked to rules and practices of militant democracy such as constitutional exclusion and bans on religious political parties and secularist restrictions of political speech that are deeply at odds with important freedoms of political communication, the core of any non-paternalist democracy. I agree with Bhargava that we should not present “Indian secularism” as an idealized model or a “blue print” but we should also stop comparing aggregated, existing, but idealized institutional models. Keeping distance from “moderate secularism” as well as from American or Indian secularism, we may be able to develop new and better institutional arrangements, such as “associational governance,” and learn from practices of reasonable accommodation wherever we find them (“democratic experimentalism”).

When we, eventually, discuss “normative ideals”—rights, first-order principles and second-order principles—we will not be helped but instead deeply troubled by the language of secularism. Yet, recently, the heated debates on secularism in the social sciences, politics, political theory, and political philosophy have also infected legal theory, constitutional law, and comparative constitutionalism (see Bader 2010). Generally speaking it may indeed be “too late to ban the word ‘secular’” or to remove “secularism” from our cultural vocabulary. The argument however that “too many controversies have already been stated in these terms” seems unconvincing to me. For the purposes of normative theory, I have proposed to replace all normative concepts of secularism by “priority for liberal-democracy” because I am convinced that we are better able to economize our moral disagreements or to resolve the substantive constitutional, legal, jurisprudential, and institutional issues and controversies by avoiding to restate them in terms of “secularism” or “alternative secularisms.”

With regard to the constitutional status of secularism, we can discern three distinct positions, all sharing the argument that “secularism … in most liberal democracies … is not explicitly recognized in the constitutional text or jurisprudence” and that it has “no clear standing among constitutional values” either: it is “not clear which established constitutional category secularism fits into or what is the underlying value behind it.”

The first position, defended most outspokenly by András Sajó, tries to overcome the absence of secularism in most liberal-democratic constitutions and to streamline their messiness by developing a “more robust theory of constitutional secularism” to remedy the fact that “most democracies are without a strong normative theory or practice of constitutional secularism,” to present a “clear agenda” and a “coordinated action plan” in order to “defend” vulnerable constitutions against the threats of (“strong”) religions.

The second position—argued by, among many others, Bhargava, Modood, Jacobsohn, Shakman Hurd, An-Na’im, and Willaime—proposes to fully contextualize secularism also in normative theory and constitutional law by developing theories of alternative secularism(s): inclusive, passive, moderate, evolutionary, weak, tolerant, liberal, benevolent, ameliorative or principled distance secularism, laïcité plurielle, positive, de gestion, bien entendue, in opposition to exclusive, assertive, aggressive, strong, intolerant, statist, or malevolent secularism.

The third, rather radical position is to criticize secularism in all its varieties as a viable constitutional principle or, in other words, to drop secularism from our constitutional language and replace it with liberal-democratic constitutionalism (LDC) for the following five reasons.

First, secularism is not only, obviously, a very complex, polysemic, and essentially contested concept but also a fuzzy, chameleonic, highly misleading, or cacophonous concept. If we are able to discuss the substantive issues of state-religion relations with less fuzzy concepts we should do so instead of translating all and everything into the language of secularism. If “secularism” is used in constitutions or by constitutional courts and lawyers, we can discern at least twelve different meanings, some of them clearly incompatible with liberal-democratic constitutionalism. A disaggregated taxonomy allows us to understand what we mean when we disagree in our normative evaluations and judgments and to economize our moral and legal disagreements.

Second, constitutions and constitutional jurisprudence provide for such concepts both in terms of rights or first-order principles and in terms of “underlying values” or second-order principles, such as “neutrality” or its reconceptualization as “principled distance” or as “relational neutrality” and “fairness as even-handedness” in cultural matters. The absence of secularism in most liberal-democratic constitutions demonstrates this clearly.

Third, the really important substantive issue is not whether states and politics are “modern” or “secular,” whatever that may mean, but rather whether they are liberal-democratic or, in other words, live up to the demands of minimal, minimal-liberal, and minimal-democratic morality and what this requires in terms of constitutional and institutional arrangements and politics/policies. In the fashionable language of systems theory: from the perspective of constitutionalism the important lead distinction (Leitdifferenz) is not secular versus religious but liberal versus non-liberal and democratic versus non-democratic. This allows analyzing incompatibilities between both “secular” regimes (such as the Nazi regime, the Soviet Union, kleptocratic dictatorships in the Arab world) and “religious” regimes (such as Iran), with liberal and/or democratic ones. In the context of the recent revolutions against secularist dictatorships and the constitution-making in Tunisia, Egypt, and Libya, the use of “secularism” is particularly counter-productive.

Fourth, the principle of constitutional secularism even conceptually eliminates deep and serious tensions between secularism and LDC (e.g. in Turkey and in India).

Fifth, constitutional secularism tends to hide from view structural tensions between liberal constitutionalism (Rechtsstaat, rule of law) and democratic constitutionalism and it undermines reasonable balances amongst the two in general, particularly in cases of militant democracies such as Turkey and India. It also does not help to find reasonable, contextual balances in the many conflicts of rights and hard cases (also acknowledged by Bhargava) that are part and parcel of constitutional jurisprudence in any liberal-democratic state.

In conclusion, replacing “secularism” with LDC should not be misunderstood as a replacement of one ideology (“secularism”) with another equally cacophonous or ambiguous one (“liberalism”). LDC is not a foundational ideology or philosophy but a meta-constitutional and meta-legal theory explaining the constitutional essentials or the core of the various and differing articulations of rights and principles in liberal-democratic international or regional conventions and in state constitutions. It is compatible with many competing theories of the rule of law and of democracy, but does not depend on any of them (including “political liberalism”).