The Changing Terrain of Religious Freedom
edited by Heather J. Sharkey and Jeffrey Edward Green
An overview by the editors
What is religious freedom and how should we understand it? In recent years, scholars have taken impassioned stances in responding to this question. Writing from the perspective of U.S. history, one group of scholars has argued that we should understand religious freedom as a legal goal that has been impossible, misleading, or subject to the designs of dominant players. In the domestic sphere, they have described religious freedom as the subject of myths that states, groups, and individual citizens have told to conjure civic and other communities that promote certain groups while sidelining others. In foreign policy, they have maintained, religious freedom has formed the basis for agendas that states and corporations (both religious organizations and businesses) have used to meddle abroad or advance self-serving causes.
Taking a more sanguine position, another group has argued that we should understand religious freedom within the constellation of human rights. They see religious freedom as a goal – perhaps a measurable one – worth striving for, even if states and societies often fall short in reaching it. They uphold law as a positive tool in the mediation between claimants to religious freedom and advocates for equality in arenas like marriage. Those who approach religious freedom within the framework of human rights tend to see religion itself as a social good, a structure for ethical systems, a special category of existence worth respecting, and a godsend (so to speak!) for helping people cope with the joys, sorrows, and anxieties of living and dying.
We recognize these multiple perspectives while approaching claims to religious freedom as political ventures. By calling them “political”, we do not suggest that such claims are cunning or manipulative. We call them “political” because they involve bids for influence or recognition among those whose interests often collide. Whether religious freedom itself is impossible to achieve is not a point we argue. Instead, we contend that understanding religious freedom is hard because it means grappling with conflicting and perhaps irreconcilable claims, while appreciating when and why some views prevail over others.
In this volume, a collection of essays entitled, The Changing Terrain of Religious Freedom, we grapple with these issues. We offer theoretical, historical, and jurisprudential perspectives on religious freedom, while examining what it may entail as an experience, value, and right. We start from the premise that the terrain of religious freedom has never been easy and smooth. Across societies, defending or contesting principles of religious freedom has required compromise, balancing, and wrangling with the law. On rocky ground – to continue the environmental metaphor – people have had to push through or maneuver around obstacles, or struggle to keep their footing. Drawing examples from the United States and the world, the constituent articles illustrate these challenges and sketch contours of current debates while showing how the landscape has shifted.
Religious Freedom: From States to Terrains
During the 2017-18 academic year, the Andrea Mitchell Center for the Study of Democracy at the University of Pennsylvania sponsored the program that led to this book. Entitled “States of Religious Freedom”, this program entailed an opening panel discussion at the National Constitution Center in Philadelphia, and, thereafter, on the Penn campus, monthly lectures with solo presenters as well as an end-of-year symposium. It gathered specialists in law, history, sociology, anthropology, political science, theology, and religious studies. Participants included activists and practitioners, ordained religious leaders and committed atheists. Still others were legal scholars who participated in some of the court cases that arose in discussions.
The series organizers started from the premise that ideas about religious freedom have shaped past and present constructions of national cultures and foreign policies. Exemplifying this construction in the United States was the International Religious Freedom Act (IRFA) of 1998, which committed the State Department’s Bureau of Democracy, Human Rights, and Labor to compiling annual watchdog reports on every country in the world, except the United States itself while also establishing the bipartisan agency, the United States Commission on International Religious Freedom (USCIRF), to monitor conditions abroad and to make policy recommendations to the federal government. By exempting the United States, these efforts by the U.S. State Department and USCIRF led the organizers to consider whether or how the United States was exceptional – exemplary in its own record of religious freedom, or merely distinctive – relative to other countries. What the organizers had originally envisioned as a program that would situate U.S. experiences within a comparative international context became something that was unequivocally global in the scope of inquiry.
From here, the Mitchell Center encouraged participants to engage with various questions. What had the U.S. record been in accommodating religious freedom in the past, and what new debates surrounding religious freedom were affecting democracy, citizenship, and constitutionalism worldwide during the early twenty-first century? How had other countries, informed by their own histories and circumstances, negotiated terrains of religion, statehood, and citizenship? What was the status of religious freedom around the world amid controversies over gender roles and sexuality, religiously-motivated violence, the rights of religious minorities relative to dominant groups, and the establishment of official religions? We wanted to understand how states, as political entities, enabled or hindered religious expression and culture, and how social conditions and attitudes – states of collective being – affected practices and understandings of religious freedom.
Several contributors responded to the questions posed by citing non-state agents and forces that shaped terrains and climates of religious freedom. They commented on the geography of religious freedom – the “where” of challenges to beliefs, values, and practices, and of threats to persons. While “States of Religious Freedom” was the name of the original program, the canopy of states became too small to cover our unfolding debates. States have limits, but religion, or the lack of it, seems boundless, even amorphous – perhaps because religion as a concept is so hard to capture and grasp. For this reason, we turned to the metaphor of ground to express what became the central premise girding this volume: namely, that religious freedom has had, and still has, a tricky and shifting terrain.
People, States, and Walls of Separation
Claims to religious freedom often expose tensions between individuals, groups, and governments, especially when such claims undermine public policies that states want to pursue. Negotiating limits between individual freedom and public order then becomes a major source of debate. A related tension has historically arisen in countries that aspire to democratic ideals while privileging certain religions, either explicitly (by asserting a religion of state) or implicitly (by favoring one religion and its adherents in policies and practices).
A puzzle facing liberal states entails determining what neutrality towards religion should mean. One possibility is to neither support nor restrain religion in public policy. John Locke advanced this idea in his “Letter on Toleration” in 1689. Thomas Jefferson similarly called for a “wall of separation between Church and State” in 1802. The question of the proper role of religion within liberal states still generates heated debate in countries around the world. Indeed, given the dramatic expansion of the modern state in so many areas of public life, such as healthcare and education, it is hard to see how state policies would not affect religious life in some ways. For this reason, some scholars have questioned both the desirability and possibility of a “wall of separation,” advancing instead a competing notion of supporting equal accommodation and treatment of religions.
In the United States, religious organizations have long worked with the government to provide social services, both at home and abroad. (In fact, one scholar dates this history of collaboration to the early colonial era, specifically, to 1636, when the Commonwealth of Massachusetts enacted a tax to fund Harvard as it trained clergy.) The question of church-state separation loomed large as the twentieth century ended, especially after 1996, when federal and state governments began in 1996 to promote “faith-based initiatives.” These initiatives made it easier for enterprises run by recognized religious institutions – day-care centers, nursing homes, hospitals, and more – to compete for and receive government funding. American evangelical groups pushed hard to advance these measures, a goal of which, they claimed, was to “unleash the armies of compassion” by enabling programs centered on faith.
In a similar manner, many other developed democracies have supported religion while claiming to hold secular principles. France, for example, has supported religiously-affiliated schools, maintained certain churches, and recognized Catholic holidays like All Saints’ Day and Ascension Day on public-school calendars, even as it has restricted the wearing of religious symbols in public schools following a law enacted in 2004. The latter policy, which especially affects Muslim females who may wish to wear headscarves, has led many to challenge the neutrality of France’s policies and to question the state’s treatment of religious minorities.
Religious Freedom, Individual Rights, and the Public Good
When do individual religious rights impede a state’s pursuit of legitimate public policy? This question arose in the United States in a landmark case, Wisconsin v. Yoder (1972), involving parents who invoked religion to withdraw children from school at younger ages than their home state allowed. The U.S. Supreme Court decided that Amish youth (belonging to a traditionalist sect rooted in Swiss-German Anabaptist Christianity) did not have to attend public school after eighth grade (approximately age thirteen), despite a Wisconsin law that mandated attendance until sixteen. Wisconsin had set this standard to develop human capital, boost the social and economic potential of youth, and cultivate critical thinking and associated capacities of citizenship. Judges sided with the Amish litigants, reasoning that Wisconsin failed to prove how two extra school years made a difference in creating productive citizens within a group that had a track record of law-abiding behavior. Wisconsin v. Yoder recognized the rights of adults, claiming to act from religious convictions, to chart their children’s educational paths. In the jurisprudence on religious liberty, this case also illustrated the importance of exemptions from state laws and stoked debates about how exceptional exemptions should be.
A current example of this tension between individual rights and the so-called public interest involves parents who refuse to vaccinate children. In 2018 and 2019, many news outlets drew attention to an ultra-Orthodox Jewish community in New York, some of whose members rejected vaccinations because their serums were potentially non-kosher. These “anti-vaxxers” contributed to the resurgence of measles, which had disappeared in the United States by 2000 but returned with epidemic force in 2018. While demographic data on “anti-vaxxers” may be incomplete, the vast majority of Americans not vaccinating appear not to have been ultra-Orthodox Jews; they came from a broad range of the population diverse in its religious orientation, geographic origin, and political outlook.
If U.S. religious objectors were of special interest to both the anti-vaccination groups that cultivated them and the media outlets that lambasted them, it may have been because observers realized that religious refuseniks were likely to draw more sympathy from courts than their non-observant counterparts. Again, Wisconsin v. Yoder (1972) is relevant. In that case, justices grappled with how to differentiate religious from non-religious – or “conscientious” – objections. Justice Warren Burger, writing for the majority, distinguished “philosophical and personal” objections from specifically “religious” ones, arguing that the U.S. Constitution awarded only the “religious” special protection. Many U.S. states still make this distinction: in 2016, 47 out of 50 states recognized “religious” exemptions for opting out of vaccinations, while fewer than half recognized exemptions based on philosophical, conscientious, or personal belief. By valorizing religion more than conscience or philosophy, U.S. state and federal laws have raised questions about what religion and “being religious” means.
Adults versus Children: Religious Freedom for “Majors” and Minors
Studies of religious freedom often use the terms “majority” and “minority” to refer to dominant and subordinate religious groups. We could speak about, say, the Muslim majority relative to the Baha’i, Christian, and Jewish minorities in Iran. Yet, majority can also cover the state of being full age, or adult, just as minority can mean being underage and subject to guardianship. Since disputes over religious freedom often involve babies, children, and adolescents, it is useful to employ the terms “majority” and “minority” in this age sense as well. What rights do adults possess over children in families? When are rights and practices inalienably “religious”? And how should societies treat cultural practices when these involve the bodies of infants and children? Children pose a jurisprudential puzzle for liberal philosophy. They are free citizens whose rights and liberties states should protect. Yet, minors do not yet enjoy rights of consent, and are subject to parents’ or guardians’ choices. How one understands the position of children to some extent determines one’s posture toward religious freedom, along with rights of states to intercede on minors’ behalf. Liberals who are eager to protect the autonomy of minors may be less willing to grant religious exemptions to parents and guardians whose practices can impede children as they mature into adults, either because of their severity or irreversibility of the action or decision or their potential undermining of future autonomy. Thorny questions about what parents and states can do to, or for, children have generated heated debate when religious freedom comes into play.
Is Religious Freedom Only for Humans?
Increasingly today, many are asking not only who has freedom, but what has freedom. Bearers of rights may include sacred places, along with elements of what the United Nations Educational, Cultural, and Scientific Organization (UNESCO) calls tangible and intangible heritage. Once again, we return to the “where” issue of religious freedom, involving questions about the geography of religion and the stages and tools for its performance. Today, as ecological and environmental concerns increasingly arise in religious discussions, religious freedom claims to spaces and natural resources are likely to multiply, though how courts will respond remains to be seen.
The Business of Religious Freedom
In the United States, the case of Burwell v. Hobby Lobby (2014) was a watershed. The U.S. Supreme Court recognized the rights of a profit-making corporation to enjoy religious liberty, holding that some for-profit companies could deny contraception coverage to employees on the basis of a religious objection. There are many kinds of corporations, including religious institutions, which have long enjoyed recognized rights to religious freedom. Burwell v. Hobby Lobby raises questions about the extent to which states may treat corporations as citizens, endowed with rights like freedom of speech. What visible and invisible powers do corporations and the people who run them wield in democratic political systems? And how do corporations’ profit-driven goals conflict with or undermine the rights and needs of individuals? Questions like these are beyond the scope of this study, though as controversies intensify over corporate entanglements in democratic societies, we should heed these debates as they bear on religious freedom.
Religious Freedom for Nonbelievers, “Nones,” and Ambivalents
How should we balance the rights of those who believe with those who do not? This question stands to loom ever larger in countries like the United States, which claim not to establish or privilege religions. Today, growing numbers of people reject religious identities or strictures, identify as atheists or agnostics, or claim no attachment to a particular religious tradition or community. For simplicity’s sake, such people are sometimes now called nonbelievers and “nones,” even if both terms are problematic as negative appellations that may imply that religious belief and profession are positive, normatively superior alternatives. The term “nones” can also mislead: many people may have no religious affiliation even if they do hold “religious” or “spiritual” convictions (such as belief in a deity) or engage in practices like prayer. This may be another way of saying that “nones” may be religious without having religion! A recent study by the Pew Research Center, in 2017, reported that more than a quarter of U.S. adults (27%) described themselves as “spiritual but not religious.”
Whatever we call them, the number of people who hold no firm religious profession or communal identification has expanded significantly, especially in states which are disinclined to enforce, promote, or privilege particular religions. In the United States alone, the number of “nones” jumped from 16% in 2007 to 23% in 2014 (with much of the drop in religious affiliation among Christians). If this trend continues, the result is likely to be greater fluidity of identity, including intermittent conversions to, from, and among religions – as well as movements in, out, and around bounded communities. Affiliations are likely to become shakier, attesting to fluctuations and uncertainties in categories that many may have once assumed to be fixed or traditional, while complicating what it can mean to be “practicing” religious freedom.
The Impossible and the Possible in the Quest for Religious Freedom
In a book called The Impossibility of Religious Freedom, Winnifred Fallers Sullivan advanced a crisp argument, which has driven debates ever since: since there is no way to assess what counts as sincere or valid religion or religious belief, religious freedom is impossible to promote or achieve. In an article styled as a defense of religious freedom, Daniel Philpott and Timothy Samuel Shah strenuously reject Sullivan’s claim that religious freedom is “impossible.” They lament the efforts of a “phalanx of individuals” to discredit religious freedom, especially in Western societies. They also object to the way that these intellectuals portray claims to religious freedom as a “projection of ideology, an interest of factions, [and] a colonial and imperial pursuit.”
Debates over religion and religious freedom can certainly give rise to doubts. One doubt relates to measuring the religious element in multi-faceted cases – balancing religion relative to factors like ethnicity, age, class, and the like. Even determining which elements of an issue count as religious can be difficult. At the same time, some elements that observers claim as religious may arise from other impulses. Still other doubts about religious freedom have sprung from concerns about its interaction and potential competition with other personal liberties – that is, with how religious freedom may squeeze out different values and claims. As if the debate over religious freedom were not hard enough, some scholars find themselves stuck on the possibility, or impossibility, of pinning down what counts as religious, especially when there are no presumptions about the existence of gods or spirits.
Just as defining religion can lead scholars into a thicket, so can defining spirits, the spiritual, and spirituality. In 2018, the Pew Research Center declared that, for the purposes of a report it conducted on religion in Western Europe, spirituality referred to “beliefs or feelings about supernatural phenomena, such as life after death, the existence of a soul apart from the human body, and the presence of spiritual energy in physical things such as mountains, trees or crystals.” It used this definition to devise categories with which it asked people to identify in polls: “both religious and spiritual”, “religious but not spiritual”, “spiritual but not religious”, and so on. Another Pew survey, this time of the United States, devised a more complex typology by classifying Americans as “God-and-Country Believers”, “Diversely Devout”, “Spiritually Awake”, “Solidly Secular,” and more – and then by explaining each descriptor. The dizzying array of labels across these studies points to the challenge of capturing religious identities and sentiments.
Where do these arguments about the nature of religion and religious freedom ultimately take us? Not to a rejection of the concepts, but to an awareness of how hard it is to pin down terms and reach conclusions as particular cases and controversies arise. They return us to an argument we advanced at the outset: that promoting social justice amid religious freedom claims has been and will remain a hard task. It will require grappling with diverse, conflicting, and perhaps irreconcilable claims; appreciating when and why some claims prevail while others fail to persuade; and accounting for changing cultural values and political circumstances. It will mean navigating the changing, bumpy terrain of religious freedom. ♦
Heather J. Sharkey is Professor and Chair of the Department of Near Eastern Languages and Civilizations at the University of Pennsylvania. She has written several books, including A History of Muslims, Christians, and Jews in the Middle East (Cambridge University Press 2017).
Jeffrey Edward Green is Professor of Political Science at the University of Pennsylvania, where he directs the Andrea Mitchell Center for the Study of Democracy. His books include the forthcoming Prophet Without God: Bob Dylan’s Reinvention of the Prophetic Conscience, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy, and The Eyes of the People: Democracy in an Age of Spectatorship.
Sharkey, Heather J. and Jeffrey Edward Green. “The Changing Terrain of Religious Freedom.” Canopy Forum, February 28, 2022. https://canopyforum.org/2022/02/28/the-changing-terrain-of-religious-freedom/.