WEBINAR 5: ASIA (OVERVIEW) - Two Ways in which the Judiciary can Undermine Constitutional Secularism
Darshan DATAR
20 November 2020
Judges are shaping how governments interact with religious organisations and individuals. Judges across the world are constantly reinterpreting freedom of religion provisions and anti-establishment provisions in constitutions. The reason for this reinterpretation has been a recent rise in religiously motivated litigation. An increasing amount of litigation in democracies has specifically centred around religious freedom, discrimination, and the boundaries of anti-establishment clauses. Judges are reinterpreting freedom of religion and anti-establishment clauses in a way that allows governments to privilege the majority religion of a country, while correspondingly, singling out minority religious for targeted regulation.
Headscarf bans across Europe, a crackdown on Muslim family law in India and the vilification of religious minorities across the world are all well-documented instances of the crisis of religious freedom. Perhaps more perturbingly, certain countries are moving away from their established commitments to uphold constitutionally entrenched principles of secularism. Recent developments in India, with the enactment of the Citizenship Amendment Act and the creation of the National Registry of Citizens, are perhaps the most visible examples of a secular state abandoning its commitment to foster religious tolerance, equality, and neutrality through a constitutional entrenchment of secularism. Critically, these trends demonstrate that liberal democracies are abandoning their commitments to democratic pluralism by vilifying religious minorities.
Through the course of this blog post, I will highlight two ways in which judges are complicit in the decay of freedom of religion and establishment clauses. I will argue that judges can privilege the majority religion of a country in two key ways: by either expanding the protection of freedom of religion provisions to accommodate requests made by religious citizens to opt out of general and neutral laws; or expanding neutrality requirements to the private sphere to overregulate minority religious identity. Starting with case law from the United States, I will demonstrate how judges are privileging practice of the majority faith of the country by allowing them to opt out of obligations created by general and neutral laws. Later, drawing on examples from France, I will demonstrate that judges are expanding secular commitments into the private sphere in order to regulate the private religious conduct of French citizens. Finally, I will conclude this post by demonstrating how the Indian legislature and executive are following a similar path to the French and American judiciary.
Miriyam Hunter-Henin recently demonstrated how liberal democracies, regardless of their specific state-church arrangement, generally ascribe to an inclusive form of secularism. Drawing on the work of Dieter Grimm, Professor Hunter-Henin argues that both England and France ascribe to an inclusive understanding of secularism. Hunter-Henin argues that “under an inclusive model of secularism, “secularism evolves into a [form of] positive constitutionalism under which religious freedoms are not only protected against state interference but also valued as a positive good, capable of enriching political debate and contributing to society.” Her core insight is that an inclusive model of secularism does not need to have a particular institutional church-state relationship. England has an established Church while France has a separationist model of secularism. However, both jurisdictions are, in principle, compatible with type three secularism due to their protection of religious freedom and the corresponding neutrality of the state towards religion in the institutional sphere. Professor Hunter-Henin warns, however, that both France and England are backsliding from their commitments and moving towards more exclusionary forms of secularism. I contend that liberal democracies stray from type three secularism in two ways. The first is by abandoning commitments towards neutrality by privileging one specific religion. The second is by expanding secularism clauses into the private sphere to single out one religion for unique treatment.
An example of the first way in which countries are moving away from type three secularism can be seen in the United States. Through an expansionary interpretation of the free exercise clause of the First Amendment, judges are privileging the majority faith of the country. The Religious Clauses of the First Amendment state that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…’. The religious clauses of the First Amendment guarantee freedom of religion to all citizens and further mandate that the government cannot establish or endorse a state religion. In the case of Reynolds v. United States (1879), which concerned a constitutional challenge to federal bigamy laws, the Court held that the historical persecution of religious minorities in the former colonies was the reason the founding fathers enacted the Religious Clauses of the First Amendment.
Additionally, in Reynolds, the Court ruled that the Free Exercise Clause of the First Amendment did not allow for opt-outs from generally applicable criminal statutes. This position was solidified in the case of Oregon v. Smith (1990). In this case, the Court held that “[t]o permit [for religious exemptions from general and neutral laws] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” This position clarified that citizens’ religious beliefs would not exempt them from being bound by norms created by general and neutral laws. In other words, this position clarified that general and neutral statutes, such as non-discrimination statutes, apply to all citizens regardless of their religious beliefs.
The Court has recently departed from this position. The most prominent example of this can be found in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). In this case, the Court considered whether the refusal of a Colorado based bakery (Phillips) to bake a cake for a same-sex wedding was justified due to the religious beliefs of the claimant. The Colorado Anti-Discrimination Act prohibits businesses from discriminating, including on the basis of sexual orientation. The Colorado Civil Rights Commission held that Phillips’ conduct amounted to discrimination against sexual minorities. In reaching this decision, the Commissioner observed that “[f]reedom of religion and religion [referring to two conceptions of the freedom] has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The Supreme Court was called upon to consider “[w]hether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” The Court held that the Colorado Civil Rights Commission’s actions in assessing the cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the Religious Clauses of the First Amendment. Placing special emphasis on the words used by the Commissioner, the Court observed that:
[T]he Commission’s treatment of [the] case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs… The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.
Based on this assertion, the Court held that the Commission’s decision was hostile towards religion and therefore violated the Establishment Clause of the First Amendment. By interpreting the establishment clause so broadly, the Court effectively held that, in this case, a religious citizen could opt-out of an obligation created by a generally applicable discrimination statute. While the Court did not interpret the Free Exercise Clause of the First Amendment to hold that the Free Exercise Clause allowed for religious exemptions from general and neutral laws, they used a broad interpretation of the Establishment Clause to imply that such a right exists. This demonstrates that the Court could use a broad interpretation of the Establishment Clause to privilege the Christian faith.
The use of a broad interpretation of the First Amendment in order to extend exemptions from generally applicable statutes to religious citizens indicates that the Court has undermined the Establishment Clause. In allowing individuals from the state’s majority religion to opt out of neutral laws of general application, the Court is not protecting religious freedom; it is privileging religious beliefs of the majority faith. Protecting religious freedom would only require that the Court prevented the state from regulating religious freedom unless there was a compelling state interest in doing so. However, as demonstrated in the case of Masterpiece Cake Shop, the Court is now privileging certain individuals to practice their religion, even if the burden of their belief is shifted onto non-religious citizens.
French laïcité emerges from the 1905 law on the separation of Church and State. Under article 1 of the 1905 Law, “The French Republic ensures freedom of conscience” and, under article 2, “The French Republic neither recognises or subsidises any cult”. This demonstrates that the 1905 law in France has two essential components. First, the Act protects French citizens’ freedom of religion, and second, it prevents the government from endorsing, promoting or establishing a state religion.
Laïcité was, therefore, compatible with both religious freedom as well as state neutrality towards religion in the political sphere. However, laïcité was inclusive of religious minorities and protected religious beliefs in the private sphere. Conversely, laïcité would prevent civil servants or government agents from wearing any religious symbols so as to protect the neutrality of the French State. Laïcité did not apply to private conduct and could not be used to justify the regulating of religious conduct of private citizens. Therefore, it is clear that laïcité is compatible with multiculturalism and religious pluralism in the private sphere.
The Baby Loup (2013) litigation in particular calls into question whether laïcité is still compatible with religious pluralism in the private sphere. In the case of Baby Loup, the French courts had to consider whether a woman employed by a day care facility could be dismissed on the grounds of her refusal to comply with an internal employment policy of religious neutrality. The Court of Cassation (Cour de Cassation) held that the private day care facility’s policy was legal for three reasons: first, it was a generally applicable policy; second, it applied only to a small number of people; and, lastly because childcare was at stake and therefore, the policy was successful.
The Baby Loup case extended the reach of laïcité to the private sphere and in doing so impacts upon the religious freedom of citizens in the private sphere. The expansion of laïcité beyond government agents and civil servants has been gradual. Writing about the Conseil d’État’s decisions to uphold the ban on headscarfs in public schools, Miriyam Hunter-Henin observes that “[b]y stretching the institutional sphere from state buildings and state agents to users of emblematic Republican sites, such as state school pupils, neutrality requirements, under a closed version of laïcité, would considerably increase in scope.” In the case of Baby Loup, the Court of Cassation further extended to scope of laïcité to include individuals employed by private companies. By expanding the scope of laïcité to this extent, the French courts have effectively undermined religious freedom by expanding the understanding of the separation of church and state to regulate the religious conduct of citizens in private. In doing so, laïcité ceases to be an inclusive form of secularism which preserves the neutrality of the state and protects religious freedom. Instead, it has moved towards becoming a militant form of secularism which radically polices religious conduct, even in the private sphere.
Finally, to conclude this blog post, it would be important to understand how similar trends have panned out in India. While, the decay of secularism in India is primarily driven by the legislative and executive branches, the trends in India are similar. In 2019, the Indian government enacted a law which amended the country’ citizenship law. In this Act, the Indian government amended the citizenship law of India to exclude named “minority communities,” specifically “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from being considered illegal migrants. By implication, members of these enumerated groups would not be prevented from applying for Indian citizenship. In contrast, members of other faiths–namely Muslims from the listed countries–would be ineligible to apply for Indian citizenship in the same way.
The passage of this Act calls into question the secular character of the Indian Constitution. By singling out certain religions as beneficiaries of the amendment, the Indian government has created a hierarchy of citizens based on religious affiliation. As observed by Francesca Raimondo, “The Constituent Assembly opted for jus soli that was considered ‘enlightened, modern, civilized and democratic’ as opposed to the jus sanguinis that implied an idea of a ‘racial citizenship’. On the other hand, India has witnessed a progressive change from a secular citizenship law to a law that is based on religious identity which overtly disadvantages Muslims.” Raimondo’s succinct argument demonstrates that India’s move away from citizenship based on secular principles towards an ethno-religious conception of citizenship. This move calls into question the secular character of the Indian State.
The three jurisdictions of this study have been chosen as examples that demonstrate two major but different ways in which establishment clauses are being undermined. The first way is through the government or the judiciary facilitating one religion over other religions. In doing so, the burden of the intolerance of religious beliefs and practices towards minorities and non-religious citizens is being shifted onto non-religious citizens or religious minorities. The second way in which establishment clauses are being undermined is through the broad interpretation of secular obligations on citizens into the private sphere. In doing so, private citizens’ rights to religious freedom are being curtailed and, as a result, countries are moving away from being neutral towards religion and instituting militantly secular policies that radically police religious conduct in the private sphere, but which ultimately undermine secularism by privileging the majority faith.
Darshan Datar is a doctoral candidate with the Laureate Program in Comparative Constitutional Law at Melbourne Law School. He holds two LL.M degrees from the Central European University, Budapest in Comparative Constitutional Law (2015-16) and the European University Institute (2016-17). His research is focused on the concept of religion followed by constitutional courts. His other research interests include theoretical accounts of secularism and constitutionalism.