“Religious Freedom and Comparative Law: The Protection of Rights and the Exception of Religious Freedom” by Andrea Pin, Nicholas Aroney, & et al.

Thomas Jefferson Memorial in Washington, D.C by King of Hearts (CC BY-SA 4.0 Deed).

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As the world celebrates the 75th anniversary of the Universal Declaration of Human Rights and the December 10, 2023 International Human Rights Day, a group of scholars have submitted the following reflections on religious freedom and comparative law. 

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The twentieth century ended in high optimism about the future of fundamental rights protection. In a seemingly unipolar world, the United States and its Western allies operated like a global police presence, seeking to be a civilizing agency and a benchmark for the protection of human rights. At the turn of the millennium, the concept of universal rights, democratic governance, and constitutionalism seemed to have an inexorable momentum. While moving at its own pace, each region of the world was expected to align itself with human rights set by a predominantly Western constitutional culture. In such a setting, human rights advocates, judges, and human rights organisations used the language of human and fundamental rights to promote a culture of rights at domestic, regional, and international levels. It was believed that this migration of constitutional ideas would encourage governments and local populations to enhance the protection of rights throughout the world.

The Sea Change

That world, however, is largely gone. At least in terms of general perceptions, if not as a matter of reality, the early twenty-first century has seen a rise in nationalism and a decline in international relations, human rights networks, and legal cooperation. Scepticism about transnational institutions, international judicial bodies, and the language of human rights has steadily increased. New trends in legal interpretation have eroded the belief that rights and interpretation methods are easily exportable and importable. The balancing of rights has become increasingly controversial. Leaving contested rights decisions to judicial bodies or nonpartisan human rights committees and commissions has become unsatisfactory to many on republican and democratic grounds. The very language of fundamental and human rights is often seen as window-dressing for undisclosed (or all too apparent) political and moral preferences: Mary Ann Glendon famously noted a “tendency to frame nearly every social controversy in terms of a clash of rights,” and that such language is often “characterized by self-expression and the pursuit of self-gratification”.

Particular legal and judicial cultures have evolved in different ways. Some scholars have challenged the belief in “rights as trumps;” others have questioned methods of human rights scrutiny (such as proportionality and balancing) — methods that used to be highly credited; others have argued that the language of rights should be reconsidered, abandoned, or altogether rejected, or augmented by a language of duty or dignity. Human rights is regarded by some as an entirely utopian dream. Despite spirited defences of human rights laws and institutions, contrarian opinions are rendering the legal culture that originated in the West so much more diverse and conflictual than it was just one or two decades ago.

Of course, not every institution or academic feels uncomfortable in this new scenario. There are those who have engaged actively in the arena, sometimes arguing—not without criticisms—that particular rights function as trumps and do not need balancing with other rights. This unwillingness to compromise invites clashes between opposite factions, each supporting their specific agenda of rights.

The issue, however, is whether declaring trumps of rights is only pronouncing the outcome of hidden balancing exercises. While the world watches “Transnational Culture Wars” being waged in the courtrooms, many in academia are increasingly occupied in scholarly conflict—rather than diagnosing the disease and suggesting means to reconcile conflicts and defuse tensions.

The Strange Case of Religious Freedom

The contemporary practice of religious freedom litigation partly echoes and partly departs from this picture. Firstly, religious freedom in the courts can be politicized as often happens in the United States, where the topic has enjoyed a recent revival in the U.S. Supreme Court’s case-law. The return of religious freedom to the center stage has not decreased its contentiousness: in Douglas Laycock’s words, when cases pit religious freedom supporters against other rights promoters, “[e]ach side is intolerant of the other; each side wants a total win.” This is very much in line with the increasing politicization of human rights litigation generally. And yet, in several parts of the West, courts and human rights institutions are handling religious freedom issues in a way that seems immune from the most recent developments. They seem to be still living in the confident 1990s, with all of its human rights optimism and faith in the migration of constitutional ideas. They seem oblivious to the rise of intellectual and political platforms that challenge the language of human rights, and the fact that vast parts of the Global South do not subscribe to the language of human rights as the standard way to address legal and social disputes.

In many freedom of religion cases, courts and human rights institutions seem to be importing ideas from other jurisdictions without regard to the context in which those ideas developed, and for which they were carefully tailored. For example, the Queensland Human Rights Commission recently promoted the prevention and elimination of all discriminatory practices within religious organisations based on recent Irish legislation, without regard to the particular context to which that legislation was responsive. In its first case on religious freedom, the American Court of Human Rights cited a hotly debated ruling of the European Court of Human Rights, seemingly oblivious of its contested status. The Court of Justice of the EU has drawn on the European Court of Human Rights time and again, but without regard to the wide gap between the two in terms of their institutional roles, powers and procedural settings. In all these instances, courts and human rights institutions, despite their praise for context-based analysis, have paid little or no regard to the contexts in which these borrowed laws and cases originated, and especially with little regard to the context-specific needs of particular religious communities and the organisations they establish to pursue their faith-based goals.

The courts and commissions seem not only oblivious to the criticisms of rights adjudication that have emerged in the last decade; they are often highly selective about the rights and interests they protect and promote, as litigation is often driven or influenced by special-interest group advocacy organisations. Vicki Jackson’s words about the usefulness of learning from other legal systems contain a salutary encouragement and warning : “[c]autious but explicit consideration is perhaps the best response to our increased awareness of the practices of foreign governments, since what we think we know—as with Chief Justice Burger’s opinion in Bowers—may already inform, or misinform, our understanding.” Lack of prudence and excessive imagination still characterize the global discourse about religious freedom and other human rights. Aligning with binding international law provisions is one thing; aligning domestic constitutional interpretation to them is another. Analogously, assessing the ramifications of a legal provision on the basis of foreign experience is one thing; using foreign legal materials as a compass to reform domestic laws is quite another. Courts and other human rights bodies frequently deploy the late twentieth century’s methods of inquiry without sufficient awareness of their epistemological presuppositions, and without the care, humility, and self-criticism that comparative law has encouraged in the early twenty-first century, as happened when the Court of Justice of the EU in a seminal case backed its ruling that a multinational corporation’s neutrality policy could override an individual’s freedom to wear the Muslim veil. The Court drew on a broad statement of the European Court of Human Rights that allowed an ample margin of appreciation to the States in how they struck the balance between religious freedom and companies’ public image, but nonetheless reserved for itself a context-based scrutiny. The Court of Justice took from the European Court of Human Rights what it wanted and overlooked what it did not like.

What is Happening

The few examples of religious freedom disputes cited above seem to confirm the need for a sound and consistent methodology when addressing cases that pit religious freedom claims against other rights and interests. More care is needed, especially, in the importation of foreign methods and techniques of adjudication. This lack of methodology is bad for the parties and interests involved, as it is for comparative analysis at large.

This dynamic is indicative of a potentially even bigger problem. Academics, courts, and human rights bodies may feel comfortable with the politicization of religious freedom issues because they believe that religion needs to be demoted, if not removed altogether, from the pantheon of contemporary human rights. This demotion can be both deliberate and unintended. Rosalind Dixon recently enlisted a series of rights and priorities at the core of her case for responsive judicial review—a proactive set of principles focused on protecting democracy and minorities. The list includes social rights, the doctrine of unconstitutional amendments, freedom of expression, constitutional equality, abortion rights and LGBTQI+ rights—a list of formidable rights claims in which religious freedom occupies only a backrow seat.

Ran Hirschl and Ayelet Shachar have depicted the intellectual clash between religion and late modern legality in the most vivid terms. They openly declare that “[t]he rule of law and the rule of God appear to be on a collision course.” In their view, “[t]hese two of the most powerful ideas of all time are an odd couple of sorts, diametrically opposed in many respects.” Hirschl and Shachar also identify the fields in which the bulk of the conflicts occur: “[p]rotection of gender equality, reproductive freedoms, LGBTQ rights, and the right to die with dignity”— these, they say, are “the hallmarks of the current liberal constitutional-rights jurisprudence.”

Hirschl and Shachar seem to suggest that polarization between human rights and religious freedom is inevitable: religious freedom does not sit comfortably alongside other rights that characterize contemporary liberal constitutionalism. Some years earlier, Hirschl had indicated the dire predicament he saw for religion, when he noticed a “secularizing tendency … in constitutional jurisprudence” and an “antireligious impulse embedded in the constitutional jurisprudence of even the most accommodating, multicultural polities.”

Prophesizing the demise of religion is not a good recipe for stable constitutionalism. It is also profoundly unrealistic. Certainly, it should not come as a surprise that cherry-picking human rights is often met with academic criticism, spirited debate, and even hostility. Supporters of religion who lose in courts and other institutions sometimes articulate their reasoning in nationalistic, inward-looking fashion, occasionally in a manner that weaponizes religion. If the judicialization of politically divisive controversies, and comparative method generally, are discredited, this will fuel resentment against institutions of justice and suspicion of human rights talk, and nurture the impression that comparative law inquiries are vehicles for partisanship. It will also alienate vast regions of the world that do not subscribe to the same worldviews, excluding them from global conversations about balancing religious freedom with other rights and interests, legitimizing outright repudiations of rights and/or religious freedom.

What Should Happen

Many religious believers are coming to think that the constitutional landscape in the West is bad for religious freedom and religion in general. Indeed, scholars such as Ran Hirschl seem to believe that this tendency is inevitable. One likely result is that religious believers and those who believe in religious freedom will disengage from rights talk and the goods of constitutionalism altogether — as some are already proposing.

However, there are alternative ways to address these clashes of rights — ways that do not downplay the conflict, but also do not pit religious freedom against the spirit of contemporary constitutionalism. It remains possible to learn from other countries and jurisdictions without overlooking the important differences between them.

Scholarship does not have to decide to care only about religious freedom, or only about other rights. And scholars need not retreat into the confines of their own jurisdictions. We remain capable of learning from one another.

This alternative approach requires a deeper understanding of human rights, constitutional context and historical trajectories, and it calls for more consistency in the deployment of methods of analysis and scrutiny, with a certain detachment about the outcome that such scrutiny requires. It especially requires a fuller appreciation of the different constitutional settings in which human rights jurisprudence is developed, a deeper understanding that must be mixed with some degree of humility.

A more principled way of addressing contentious issues such as the balancing of associational religious freedom with other rights requires, at least:

1. an appreciation of the multidimensional aspects of rights and especially of religious freedom, particularly in their individual, associational and communal dimensions;
2. a more inclusive approach to the fluid dynamism between religious freedom and human rights, which takes into account the experiences of the Global South when identifying rights standards rather than treating them as exceptions to the norm;
3. an assessment of the decision-making roles of institutions established at local, national, supranational, and international levels;
4. a thorough examination of the manner in which courts and human rights commissions exercise their considerable ‘hard’ and ‘soft’ powers when they address these sorts of issues;
5. a fuller picture of the context from which particular legal solutions are imported and their likely legal and social ramifications in the recipient legal system;
6. an in-depth exploration of the types of scrutiny that courts and human rights bodies utilize to assess cases;
7. a sharper awareness of the goal of each comparative law inquiry, recognising that it is one thing to import a certain model of scrutiny, it is quite another to import the results of a foreign case.

Human rights – including religious freedom rights – are not just about individuals, and nor are they the offspring of fluctuating sensitivities. They are sophisticated legal claims with deep historical, religious, and philosophical roots, with a strong lineage and powerful ramifications, and should be treated as such.

Balancing competing interests is always hard. Doing it in a nonpartisan way in a polarized age is proving to be even harder, and requires a principled approach to protect the interests at stake and the credentials of the institutions involved in the process. The five steps listed above provide a roadmap for a transnational conversation that is sorely needed.♦

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Contributors

Nicholas Aroney, University of Queensland
Carlos Bernal, Macquarie University
Renato Costa, University of Queensland
Shaun de Freitas, University of Free State
Mark Hill KC, Notre Dame University
Adelaide Madera, University of Messina
Dwight Newman KC, University of Saskatchewan
Andrea Pin, University of Padua
Paul Taylor, University of Queensland
Li-ann Thio, National University of Singapore
Luca Vanoni, State University of Milan
Arianna Vedaschi, Bocconi University, Milan
John Witte, Jr., Emory University

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Recommended Citation

Andrea Pin, Nicholas Aroney, & et al. “Religious Freedom and Comparative Law: The Protection of Rights and the Exception of Religious Freedom.” Canopy Forum, December 20, 2023. https://canopyforum.org/2023/12/20/religious-freedom-and-comparative-law-the-protection-of-rights-and-the-exception-of-religious-freedom.