Advanced Introduction to Law and Religion
Frank S. Ravitch
This literature highlight is drawn from Advanced Introduction to Law and Religion by Frank S. Ravitch (Edward Elgar 2023). The full book is available here.
The following is a short excerpt from my newest book, Advanced Introduction to Law and Religion (Edward Elgar 2023) pages 3-9. This book is part of Edward Elgar’s highly regarded Advanced Introduction Series and has a global focus. The excerpt comes from chapter one. It includes an introduction to the most common legal sources used in the law and religion context. It also includes a bit of the section discussing conceptual frameworks that often impact legal decisions and regimes in the law and religion context, including the subsection discussing the concept of equality. In the book, this subsection is followed by subsections addressing the concepts of liberty, neutrality, separation, accommodation, nonpreferentialism, and tradition. Given considerations of space these subsections are not included in the following excerpt. I am grateful to Canopy Forum for asking me to share an excerpt from the book.
The sources of law governing law and religion issues and religious institutions
Before exploring the substantive law and theoretical concepts governing the interactions between government and religion, it is useful to briefly touch on the array of legal sources which govern these questions. These sources include constitutions, legislation, regulations, treaties, common law, and international law. Not all systems use all these sources, and the importance of the sources may vary from system to system.
For example, in the United States the U.S. Constitution and state constitutions play an important role in governing the legality of interactions between government and religion. Yet, legislation also plays an important role through statutes such as the federal Religious Freedom Restoration Act (RFRA) and §501(C)(3) of the United States Tax Code, as well as state Religious Freedom Restoration Acts and state tax laws. Moreover, regulations put in place by agencies such as the Equal Employment Opportunity Commission can be important in the employment discrimination context and Internal Revenue Service regulations can be important in the tax context.
In the European Union, national laws, including constitutions, legislation, and regulations, often govern initial decisions about interactions between government and religion. These decisions can however be appealed to the European Court of Justice (ECJ) when conflict with EU law is alleged. Moreover, cases can go to the European Court of Human Rights (ECHR), which has jurisdiction to interpret the European Convention on Human Rights when a nation is alleged to have violated that Convention. The relationship between the ECJ and the ECHR is complex and will be addressed a bit in later chapters.
In Japan, Articles 20 and 89 of the Constitution govern questions involving the interaction between religion and government, but there is also national legislation such as the Religious Juridical Persons Act (宗教法人法 Shuukyou Houjin Hou) that governs rights and benefits for religious entities that choose to register under the Act. Moreover, prefectural and local laws may also govern issues such as religious discrimination or land use by religious entities.
These are just a few of the many examples that exist in the law and religion context. Key is that a number of sources may govern law and religion questions and therefore those with an interest in a specific country or jurisdiction should familiarize themselves with the variety of legal sources that govern law and religion questions in that jurisdiction. Importantly, looking just to the United States Constitution to answer religious freedom questions in the U.S. would be vastly deficient given the important role that RFRAs and/or state constitutions can play in these situations. Similarly, looking at only national law when considering religious freedom questions in an EU member state may miss the role of the ECJ and the Maastricht Treaty and/or the role of the ECHR and the European Convention on Human Rights.
This book will be organized around the types of questions that arise in law and religion and not around the sources of law that govern those questions. Still, this section should serve as a reference for the general legal sources that govern law and religion questions.
A wide range of conceptual foundations have been influential in the law and religion context. Some of the more common and important conceptual foundations are the principles of equality, liberty, neutrality, separation, accommodation, tradition, and nonpreferentialism. These principles work alone or together in a variety of contexts. There is often disagreement among scholars as to which principles should govern generally or in specific situations. Some principles, such as separationism and nonpreferentialism, are more likely to come into play in situations involving government support for religion. Others, such as equality and liberty, may arise in a wide array of law and religion situations.
Neutrality has been viewed as a central principle for law and religion cases in many systems, including those of the U.S. and Japan and the European Convention on Human Rights. Yet, as will be seen, neutrality raises some unique problems both practically and conceptually; problems with which courts and scholars have regularly grappled.
The principle of equality is central in many systems and has been a particular focus of scholarly and judicial discussion in the U.S. But what is this principle, and how does it function in the law and religion context? These may seem like simple questions; however, the answers are anything but.
At the broadest level there seems to be agreement that the government should not be able to discriminate against religious individuals or groups, but what counts as discrimination and how far this principle goes are the subject of significant debate. The recent COVID-19 restriction exemption cases in the U.S. provide a striking example of how far the discrimination concept might be stretched and how disagreement over what counts as discrimination can impact outcomes.
Consider the following questions. Is it discrimination against religion to treat churches the same as theaters and gyms regarding restrictions during a pandemic? Is it discrimination to treat churches differently than grocery stores regarding restrictions during a pandemic? The United States Supreme Court initially held that states should have broad leeway during a pandemic to restrict gatherings where people may stay inside a single location for a long period of time and/or sing. This would suggest that churches are more similar to theaters and restaurants than to grocery stores. Yet, less than five months later the Court held that New York could not restrict church attendance so long as grocery stores and retail shops could remain open.
In this context the comparison group is key to determining whether there is discrimination. Is a church, synagogue, or mosque more like a theater or a grocery store? Despite compelling evidence supporting the state’s assertions that religious services are more like theaters or restaurants, with singing and longer attendance in one place, the U.S. Supreme Court sided with the religious entities. Thus, while all the Justices agree that discrimination against religion is problematic, the delineation of comparison entities can predetermine the outcome of any discrimination analysis.
A simpler scenario would be where government is clearly disfavoring a specific religion(s) or favoring a specific religion(s) to the detriment of others, but even then, things are not always so simple. For example, the U.S. Supreme Court recently upheld legislative prayer offered primarily by Christian ministers and priests at town council meetings where members of the council regularly crossed themselves and participated in the prayer, often before hearing citizen requests for action or remedies from the town council. There was also evidence in the record suggesting that at the very least there was structural favoritism toward Christian prayer givers, and even some evidence of overt discrimination against those who opposed the prayer.
As a matter of U.S. law, the difference between upholding the prayer in this case and striking down the New York State COVID-19 restrictions mentioned above may be justified by the fact that the prayer case was brought under the Establishment Clause of the United States Constitution and the COVID-19 exemption case under the Free Exercise Clause of the United States Constitution. Yet, this does not make the results any less problematic under the principle of equality, especially given the evidence of at least some overt discrimination in the prayer case (something that was lacking in the COVID-19 restriction case) and the fact that in both cases the decisions and conduct of government actors were considered by the Court and given vastly different deference.
In other words, even if one can legally justify the difference in results, that difference does not seem to serve the principle of equality well. Similar results arise when considering French laïcité and the treatment of Jewish and Muslim headwear versus Christian crosses. A 2004 law passed in France banned students from wearing conspicuous religious attire such as yarmulkes, hijabs, and large crosses. Two factors render this law discriminatory. First is the obvious fact, well understood at the time, that the primary target of the law was the hijab and to some extent the yarmulke. Second is the fact that, even without such targeting, the reality is that under both Halacha and Sharia, the size of a yarmulke or a hijab has inner limits below which they cannot serve their religious function, and obviously neither can be worn inside the head. Yet a cross could be tucked under a shirt and for the most part a smaller cross may serve a similar function to a large one. Yet, the argument was that the law promoted the principle of laïcité, which itself is argued to promote equality. Of course, as in the U.S. cases mentioned above, the system was structured in a manner that favors the dominant religion or a secularized tolerance of it. Moreover, the results, while perhaps legally justifiable in the relevant systems, still discriminate and violate the principle of equality if understood to require anything more than formal equality.
Thus, even when confronting questions involving discrimination against religion or a specific religion(s), the parameters of the equality principle are not always clear, except in the easiest cases. The examples from the U.S. and France suggest that there is no Archimedean point from outside a given system’s cultural or structural biases from which equality is likely to be interpreted. This does not prevent decision-making from occurring; nor does it mean that equality is never possible. It does mean, however, that the ideal of equality is best met when decision makers are able to reflect on the systemic biases that may be influencing their analysis. Considering these biases may not change the outcome given other legal principles, but it may lead to more open engagement with the principle of equality and the other principles mentioned below.
Beyond cases involving discrimination, many questions can arise under the principle of equality. Examples include questions such as: Who can access government funding or tax breaks? What should happen when a law has a disparate impact on certain religions even if there is no other evidence of discrimination? What happens when government favors religion, or a specific religion?
There are a variety of answers to these questions within individual legal systems, but the principle of equality would suggest that at the very least, specific religion(s) should not be given preferential treatment regarding government funding or tax breaks over other religions or nonreligious entities. Of course, this raises complex questions about what counts as preferential treatment, a topic about which scholars have written numerous volumes without coming to a general consensus and to which legal systems have given a variety of answers. Tax breaks and funding will be addressed in detail in Chapter 5.
The disparate impact question arises most obviously in the context of religious exemptions to generally applicable laws discussed in depth in Section 2.3. At a conceptual level, there are two competing equality arguments at play in exemption cases. First is the argument that denying exemptions naturally favors more dominant religions or secularity in a given society, and frequently disadvantages religious minorities, whose practices are often poorly understood or not considered by legislatures and other decision makers. Second is the argument that any system of exemptions for religion favors religion over nonreligious ethical, philosophical, or other systems of belief or commitment, thus privileging religion.
These two concepts are not inherently in conflict because technically denying all religious exemptions or granting all exemptions whether religious or not (often balanced against the government interests in not granting exemptions) would arguably prevent a disparate impact. Yet, the practical reality is that the burden of a system which undervalues religious exemptions is most likely to fall on religious minorities, because laws tend to reflect the needs of larger and/or more powerful groups within society. Of course, a similar burden may also fall on other, less common nonreligious belief systems, but under the principle of equality this would arguably militate in favor of granting both sorts of exemptions, balanced against social interests, rather than denying both sorts of exemptions.
Finally, the principle of equality can be implicated when government favors, or appears to favor, religion or specific religions. This is especially true when the favored religion(s) is more dominant in society. There are a wide array of situations where this sort of favoritism appears and the literature on these situations fills hundreds of thousands of pages. Much of this literature explicitly or implicitly raises equality questions. These situations will be addressed in depth in Chapter 3.
The equality principle suggests that at the very least, government should not favor or disfavor a particular religion or religion generally. Yet, this sort of favoring or disfavoring has happened in almost every legal system. Sometimes dominant religions or more established religions are explicitly favored; sometimes certain religions generally appear endorsed or supported by government in ways that other belief systems are not; sometimes smaller or less established religions are disfavored; and sometimes the dominant religion(s) is viewed as just a cultural phenomenon when given explicit or implicit government support or largesse, while other religions are not. In many situations the very question of what counts as favoring or disfavoring is itself the central issue.
An in-depth discussion of the equality principle is beyond the scope of this advanced introduction. This brief discussion should, however, provide an outline of some of the major questions that arise with the principle of equality. The specific situations in which equality and the other principles discussed herein have been operating in the background are the focus of Chapters 2–4.♦
Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law and Religion at the Michigan State University College of Law. He is the author of 11 books with Cambridge University Press, West Academic, NYU Press and Edward Elgar, and more than 50 articles and essays.
Ravitch, Frank S. “Advanced Introduction to Law and Religion.” Canopy Forum, July 5, 2023. https://canopyforum.org/2023/07/05/advanced-introduction-to-law-and-religion/.