Church state

Veit Bader

How to Institutionalize Religious Pluralism? (version Bremen, 2000)
That modern, secular states require the complete constitutional, legal, administrative, politi­cal and cultural ‘separation’ of state and church is the assumption of most liberal, republi­can, feminist, and socialist political theories. Two recent debates, however, may contribute to a critical scrutiny of this standard view.

England is known for its many constitutional anomalies, including an esta­blished Anglican church which many consider an ‘absurd anachronism’ (Phillips, in Modood: 23). A few years ago, the Policy Studies Institute in London organized a discussion on ‘Church, State and Religious Minorities’. The majority of non-Anglican contributors from Catholic, Je­wish, Mus­lim, Sikh and Hindu backgrounds attacked the program of secular consti­tutional re­form or com­plete disestablisment proposed by the Liberal Party, by Tony Benn and others. Instead they opted for a pluralization of established churches or ‘embryonic multi-faithism’ (Modood: 5). They questioned whether religious freedom and equal treatment of all religi­ons requires disestablisment, whether political equality requires a complete sepa­ra­tion bet­ween state and (organized) religions, or even a complete privatization of religion. They ap­pealed to the specific history and identity of the English nation to defend some form of es­tablishment, and criticized the presumed neutrality of secular public morality. In addition to these normative issues, they raised important empirical questions regar­ding the con­tested privati­zation of religions, the effects of establishment and disestablisment on reli­gious fundamen­talism, the presumed divisiveness and destabilization of society and the possible strengthe­ning of religious minorities by a pluralization of esta­blishment.

In the US, there is a lively debate about the role of ‘Religion in Public Life’ (Thiemann 1996). Some of the basic assumptions of standard liberalism and of the more sop­histica­ted forms of ‘liberalism of reasoned respect’ (Weithman 1997) are being criticized. Whereas the En­glish debate about the relationship between the state and (organized) religi­ons (churches, sects, denominations)¹ has been wide-ranging, and covered not only moral prin­ciples and rights but constitutional issues, institutional design, cultures, virtues, practical judge­ment and policies, the American philosophical debate centers on the le­gi­timate role of religious argument in public and/or constitutional discourse in demo­cratic constitutional states. Most American liberal philosophers, among them Dworkin, Ac­kerman, Galston, Rawls, Macedo, and Audi, ‘believe that [...] values of freedom, equality and toleration are best pre­served if religion is removed from public affairs’. They are vir­tually unanimous in their staunch advocacy of the ‘wall of separation’. They believe that ‘both religious prac­tice and pluralistic democracy are best preserved’ by precluding religious argumenta­tion within the public realm (Thiemann 1996: 74ff), by putting ‘the moral ideals that divide us off the con­versational agenda of the liberal state’ (Ackerman). This belief is mainly motivated by two concerns. First, by an old Lockean fear that public and political religions inherently threaten political unity and stability (see Creppell 1996). Second, by a ‘hands-off’ notion of justice (Carens 1997) which holds that to treat humans as free and equal reasonable persons requi­res abstracting from all their particularities, especially from religious beliefs and practi­ces. In a recent article I challenged the standard view of a complete separation and tried to pre­sent an alternative way of reconsidering moral principles and reconstructing institutions focusing on the American debate among political philosophers (Bader 1999). I’ve tried to show that the moral intuitions articulated by liberal principles of benign neutrality and secu­larism can be more productively reformulated by the principles of relational neutrality, fair­ness as evenhandedness and priority for democracy. I have claimed that the latter principles enable a more productive discussion of tensions among constitutional rights and a more in­formed debate of appropriate institutional relationships between state and organized reli­gi­ons. Yet I have not been able to substantiate these two claims. In this article, the focus in the discussion of religious pluralism will be shifted from the US to England (PSI, Modood 1996), from moral principles towards rights, in­sti­tutions and policies, from political philosophy towards constitutional theory and social sciences, particularly to history and sociology of religions and to theories of institutional plura­lism.²

“Complete separation of state and organized religions” is a radical utopia and - in all prac­tical regards - a myth. In my view, the relevant institutional options in recent societies are “weak esta­blishment”, “constitutional pluralism” (or “plural establishment”), “non-consti­tutional plu­ralism” and “non-establishment combined with fighting all forms of institutio­nal pluralism”. My claim that "non-constitutional pluralism" is preferable for moral, ethical, prudential and realist reasons is guided by two general arguments. First, recognizing that “strict” religious neutrality of the state is not only an unachievable but an undesirable uto­pia, and taking into account the actual religious bias of existing states as well as the unequal chances of organi­zed religions, the most important issue is: How to achieve higher degrees of relational neutrality and more evenhandedness with regard to existing majority- and minority religions? I hope to show that the principles of religious freedoms and of fair and evenhanded treatment of religions can be better brought into practice by an institutional option combining constitutional non-establishment with different forms of le­gal, admini­strative, political, and cultural pluralism. Secondly, institutional pluralism with regard to organized religions has two main virtues. It recognizes religious diversity not only indivi­dually, but organizationally as well, and it directly helps to address questions of se­rious in­equalities among religions, particularly of their resources to organize and mobilize. Con­trary to liberal and republican fears, religious institutional pluralism may also help to pre­vent the development of religious fundamen­talism in politics.

In section I, I critically summarize some results of recent studies in sociology of religion in order to demonstrate that secularized, modern societies show a wide variety of institutional relations between state and organized religions. In section II, I develop an empirically in­formed typology of institutional settings for the purpose of practical evaluation of instituti­ons and policies. There is no one best set of institutions or policies for all societies and situa­tions. Contexts make a difference but we should be able to go beyond generalized, relativist statements like ‘it all depends’. In section III, I develop some general moral, ethical and pruden­tial arguments in favor of “non-constitutional pluralism”.
I Secularization and State – Religion Patterns

“Separation” of state and (organized) religions³ is not only based on a mythical history of the American constitutional tradition (see Bader 1999). It is also misguided by uncritical theories of mo­dernization. What can we learn from critical sociology of religion in order to correct this standard view and to present more informed options for the purpose of practical eva­lua­tion?

Secularization⁴ implies three separate processes which should be clearly distinguished in or­der to make sense of modern reality: (i) The contested thesis of an inevitable decline of reli­gious beliefs and practices. (ii) The contested thesis of an inevitable privatization of religi­ons. (iii) The process of institutional differentiation and secularization of society and the contested the­sis of an inevitable “complete separation of church and state”.

Decline of religious beliefs and practices?

Most secularization theories assume an inevitable decline of religious beliefs and practices. This thesis is based on evidence in Western Europe, but it does not hold for the rest of the world and, particularly, not for the U.S. where all churches and sects have turned into deno­minations. For Western Europe too, there are reasons to believe that non-established chur­ches and sects have been able to survive the secularizing trends better than established chur­ches (Casanova 1994:29, 214).

Inevitable privatization of all religions?

The thesis of an inevitable empirical privatization of all re­ligions in modernity is incompa­ti­ble with the increasing public role of modern religions, which can be observed in many de­velo­ped countries. Privatization of re­ligion (in all old va­rieties of “religions of the heart” as well as in the “new age” versions of the “return of the sacred”) is one historical option but it is, contrary to Luckmann (1967) and Luhmann (1977), not an ir­resistible structural trend. Pri­vatization has to compete with the ‘deprivatization’ of reli­gion in its two meanings: as a re­politization of pri­vate relations and moral sphe­res, and as a ‘renormativization of the public economic and political spheres’ (Casanova 1994:6).

Institutional differentiation and complete constitutional “separation” of church and state?

The process of institutional differentiation seems to be - at least prima facie - the least con­tested one. The institutional differentiation of so­ciety into relatively autonomous spheres or systems was the result of a complex interplay among four different carriers of seculariza­tion: the Protestant reformation, the formation of modern states, the growth of modern capi­ta­lism, and the modern scientific revolution. Seculari­zation can best be analyzed as a path de­pen­dent process: ‘each of these carriers developed different dynamics in different places and at different times’ (Casanova 1994:25). The emergent patterns of institutional seculari­za­tion can be traced along these axes: Protestant and Catholic countries; presence or absence of militant Enlightenment critique of religion; and, with regard to the question of esta­blishment or di­s-establishment most importantly: different patterns in the relationship bet­ween chur­ches, state and nations as a consequence of diffe­rent patterns in state formation.

David Martin has analyzed the development and structure of these patterns in detail. Gi­ven some general trends of secularization in modern societies, mainly the result of the ‘growth of modern capitalism’,⁵ the development of specific patterns de­pended upon histo­rically contingent but crucial events, like the success or failure of the Refor­mation, whether a nation’s revolution is ‘an act which divides internally’ (like in France) ‘or unites against so­mething external’ (like in America (against England), Holland (against Spain) (see 17f, 42, 55ff.).⁶ The evolving particular frames which structure further events (see 15f, 18, 27, 126) have set in motion vicious circles of internal hostility and repulsion (like the spiral of fear and mutual repulsion backed by violence in France) or beneficent circles of internal com­promise and mutual adaptation (like in Holland).

The emerging patterns are shaped by ty­pi­cal ‘sorts of situations’, predominantly by the character of the predomi­nant religion: Ca­tholic and Orthodox versus Protestant, and by the degrees of religious plu­ralism. With re­gard to the latter four typical forms (117f) can be dis­tinguished: (i) A situa­tion of ‘total mo­nopoly’ ei­ther in a religious variety (all catholic and or­thodox countries) or in a secular va­riety (the se­cular monopoly of the Left (47ff.)). (ii) A si­tuation of ‘duopoly’ or ‘segmented pluralism’ (57) in Protestant societies which contain con­siderable Catholic mino­rities (60:40) like in Holland, Germany, Switzerland.⁷ The resulting ‘competition bet­ween rival blocs’ (118) is itself shaped by independent factors like size and bi-polarity (no victory seemed pos­sible for either side); territorial concentration or disper­sion, relations of center to periphery; migration; and all as­pects of minority-positions (see 19ff). (iii) A situation of ‘qualified plura­lism’ (57) which is more pluralist, characterized by competition between an established state church and a sub­stantial bloc of dissent and com­petition within the state church itself (like in England, Australia, New Zealand, Canada and, though somewhat diffe­rent, in Scandina­vian states). (iv) A situation of ‘complete pluralism’ (56) as a logically pure type approached by the Uni­ted States where ‘competition of all denominations’ is establis­hed ‘because collec­tively the numerous denominations, especially the Protestants, form a variety of cultural “establishment” albeit outside the official nexus of church and state’ (21). Putting these different constituent elements together, Martin dis­tinguis­hes the following patterns:⁸ the American pattern, the English pattern, the Scandina­vian Pattern, the Mixed pat­tern, the Latin pattern, the Right Statist pattern, the Left Statist pattern, the Nationalist Pattern.

I have summarized these patterns in order to demonstrate institutional diversity, to show that different roads lead to religious pluralism, and to make plausible that different institu­tional settings are compatible with or stimulate high degrees of religious pluralism: U.S. American “non-Establishment + private pluralism” as well as the mixed pattern of in­stitu­tional plura­lism. This empirical evidence may have important normative implications. Only in the American pattern, in some La­tin states (notably France after the Revo­lution) and in the Left Statist pattern, the nexus Church-State has been broken completely.⁹ Most Euro­pean coun­tries have retained for long, or still retain, some constitutional or legal nexus. The English, Scottish, Scandina­vian, Dutch, German and Swiss churches depart more or less ra­dically from the - Constanti­nian, Erastian or Henrician - model of one monopolistic, com­pulsory, coercive state-church. “Strong” establishment has been replaced by “weak” es­ta­blishment. Many Latin countries have been forced to follow the same path as Protestant countries and only in Right Statist countries, in the Nationalist pattern and, ob­viously, in or­thodox countries like Greece, some version of the old “strong establishment” remains in place.

Even for authors who clearly recognize that institutional differentiation is not a uni-li­near, universal, teleolo­gi­cal process with a known and fixed outcome, it remains tempting to see “complete constitu­tional separation of Church and State”, in the long run, as an ‘irresistible, structural trend’ in modern societies.¹⁰ They seem to assume that the institu­tional set­ting of the U.S. is the inevitable future for all state-societies. Against this assumption I want to raise four critical arguments by developing the ‘arts of con­ceptual and analytic disaggregation’ a little further than José Casanova.

(i) Modern society, it is true, requires (some degree of) actual, de facto differentiation of state from church but one should ask whether this de facto differentiation also requires complete consti­tutional or complete legal dis-establishment? To put this question in another way: is not de facto dif­ferentiation possible in quite different legal forms, running from con­sti­tutional and legal non-establishment to some “weak” establishment of one church? The fact that most European states have shown, or are still characte­rized by, some weak legal links between state and church(es) can be depic­ted as a serious lack of “modernization” of European state-societies. Yet one should recog­nize that theories of “modernization” or “functional differentiation” then would be se­riously at odds with empi­rical evidence. They would turn from descriptive theories into ei­ther some very strong ex­planatory-predictive theory or into outright, but usually hidden, norma­tive theory (the idealized U.S. as the normatively “ideal” model) very much resembling libe­ral political phi­losophy.

(ii) Actual institutional differentiation between state and church(es) comes not as a pac­kage but in degrees. Some minimal degree of actual differentiation is clearly functionally re­quired in modern societies, but how much, in which fields, regarding which issues?

(iii) Constitutional and legal non-establishment is definitively not the same as “separation of state from religion”, neither historically nor structurally. It also should not be mistaken for a “separation” of political society or of civil society from churches and religions. Consti­tutional “non- or dis-establishment” did go hand in hand with political and cultural he­gemony of one church, one religion or some coalition of churches and re­ligions (see Bader 1999). Politi­cal theory should not exclu­sively focus on constitutional or legal as­pects of esta­blishment or dis-establishment. It should also take into account different degrees and different forms of actual (administrative, political, cultural) esta­blishment/disestablishment.

(iv)The actual relationship between the state and (organized) religions cannot be grasped in simple dualistic schemes like ‘support and/or regulation’ (Casanova 1994:55f) or ‘protection and/or privileges’(Parekh, PSI 18). State policies with regard to (organized) reli­gi­ons rather imply four different aspects or dimensions:

(a) They are differentiated along an axis reaching from constitutional regulation (if any) to le­gal regulation, political regulation, administrative interference and cultural interference. Legal regulation itself involves a ‘multi-level’ system (see Galanter 1996:269f.). It may aim at suppression and prosecution of individual or organized reli­gious be­liefs and practices, at “tolerant negligence”, formally neutral legal allowances, at - not only formal but actual - le­gal protection of religious freedoms of (some churches), at le­gal privile­ges (like tax exempti­ons, exemptions from military service, exemptions from certain laws of general applicability (non-discrimination, holidays, working hours, and so forth), mail without charge, subsidies and other benefits) for some or all organized religions, or at exclusive privileges for one es­tablished church. Political regulation and administrative in­ter­ference includes interpre­tation and application of “public order” rules, zoning and building regulations, parking lot requi­re­ments and so forth.¹¹ The state can also attempt to exert some cultural in­flu­ence, as in politi­cal and cul­tural campaigns in favor of religious diver­sity and actual reli­gious and (more general) multi-cultural pluralism. The specific means of states are laws, exe­cutive orders, ad­ministra­tive regulations and (threat of legal) enforcement, but apart from these, the state can use many other re­sources in order to influence religions: its material resources, e.g. land, buil­dings etc.; the qualification of its personnel; money, information, political legitimacy, or­ga­nizational posi­tions etc. which can be mobilized in order to positively or negatively sanc­tion or to persuade (organized) religi­ons. One consequence of a differentiation along such li­nes is that legal re­cognition should not be confused with political recognition and admini­strative recognition. “Formal” legal re­cogni­tion of newly organized religions is not a neces­sary pre­condition of ac­tual recognition, it may even impede de facto administrative recogni­tion, as the Belgian case clearly shows where Islam has already been “formally” recognized in 1974 but effectively only in 1998. Another conse­quence is, that neither individual nor col­lective legal recognition of religious freedoms im­plies actual pro­tection (as the predicament of Ca­tholics in 19th Century U.S. or of Muslims in Britain today clearly shows).

(b) The state is not a homogeneous, monolithic political actor: its different branches (legislative, judicative, executive) as well as its different executive departments do not neces­sarily (nor actually) follow the same policies and the same holds, obviously, for the different levels of state organization: federal, state and local administration.¹²

(c) State policies do not only directly or indirectly regulate organized religions in the reli­gious field, but also in many other fields, like education, enterprise, housing, health, poli­tics etc.¹³

(d) The state has the choice of specific types of strategies. She may control, concede, sepa­rate; persuade, reward (positively sanction) or punish (negatively sanction); apply direct or indirect strategies (see Bader 1991:291f). These strategies may be used in order to positively facilitate or stimulate (some, old/new) religions or to negatively influence them, or the state may choose a passive, indifferently tolerating attitude.¹⁴

The immediate result of such a differentiation is that we should expect, and that we ac­tually see, a huge variety of constitutional, legal, administrative and political/cultural poli­cies by the state, and that many different means can be used by different departments, on dif­ferent levels for diverging policy goals. This is also rele­vant for normative discussions. It opens up a space for wide in­stitutional and practi­cal experimenta­tion.¹⁵
II Types of institutional and policy-models

The various historical relations between state and (organized) religion(s) are highly relevant for the practical evaluation of typical options. For the sake of clarity I re­duce the bewildering complexity of institutionalized patterns to five types (see Figure 1)¹⁶: (1) "strong esta­blishment" of one monopolistic church is always consti­tutional and legal establishment and, though to dif­ferent degrees, de facto establishment. It is clearly incompatible with institutio­nal differen­tiation and with the most mi­nimalist interpretations of religious freedoms and equal treat­ment. "Strong establishment" has been the point of historical departure for “dis-es­ta­blishment” as well as “non-esta­blishment”.¹⁷ Dis-establishment itself is a crucially ambi­guous idea (Modood, PSI 4), it may mean quite different things depending on the constitu­tional, legal and de facto status quo in a state. (2) "Weak establishment" of one Church which has to be compatible with de jure and de facto religious freedoms and religious pluralism, and which implies (different degrees of) de facto or de jure institutionalization of other or­gani­zed religions. In the English case, this is the option of ‘liberal Anglicanism’ whose status is heavily contested.¹⁸ (3) "Constitutional plu­ralism" or ‘plural establishment’ which, in the En­glish case, would end the ‘unique relationship between the Church of England and the Bri­tish state so as to create a plural religion-state-link’ (Modood 3) by requiring the new consti­tutio­nal establishment of organized minority religions. (4) "Non-constitutional pluralism" means the de facto and, to different degrees also the de jure institutionalization of many, at least more than one, (organized) religions without adding constitutional recognition (the case of the Netherlands after the dis-establishment of the Nederlandse Hervormde Kerk during the constitutional reforms of 1983).¹⁹ (5) "Constitu­tional non-establishment" which may or may not try to fight and prevent any de facto (social, cultural) esta­blishment and which prohibits any political, administrative and le­gal pluralism of (organized) religions (the American case). From now on, I call this option “non-establishment + private pluralism”. The crucial difference with “non-constitutional plura­lism” is that institutional pluralism, if it is recognized at all, has to be strictly relegated to the so-called private sphere of civil society²⁰ and is not allowed to spill over into political society or the state, particularly not into deci­sion-making. This op­tion should not be misunderstood as “complete separation of state from religions” - a radical normative utopia - as it is often presented by liberal and particularly li­bertarian political phi­losophers. The second, third, and fourth option represent different forms of institutionalized religious pluralism, the fourth and fifth option represent two forms of constitutional non-es­tablishment.

If one compares the English and American debates (see Bader 1999:597f) with this set of relevant institutional options, it is remarkable that in the English debate, and also in Mo­dood’s plea to pluralize the religion-state link, the option of "non-constitutional pluralism" is lacking. As a conse­quence, proponents of institutional pluralism are forced to choose among either "weak esta­blishment" or a historically completely new model of "constitutional plura­lism". Or they have to accept “secular constitutional reform” inspired by the American mo­del which gives little or no room to institutionalize religious pluralism at all. This unduly limits institutional imagination and ne­glects interesting existing options which, in my view, are preferable also for normative reasons. Institutional pluralism does not require “formal”, “official” constitutio­nal recognition.²¹ In theAmerican debate the option of "non-constitutio­nal pluralism" is also neglected. The aversion of predominant liberal and republican theories against, and the limi­ted practi­cal ex­perience of American democracy with forms of institu­tional pluralism in ge­neral - neo-cor­po­ratism in particular - helps to explain this fact. The effect has been that "non-consti­tu­tional pluralism", the other historically important variety of non-esta­blishment com­patible with the First Amendment, has never been se­riously discussed.
Any prudent, practical evaluation of the five institutional options: “weak esta­blishment”, “constitutional pluralism”, “non-constitutional pluralism”, and “non-esta­blishment + private pluralism” has to be contextual. Contexts make a difference.

Contexts of non-establishment differ from situations of an established church. For his­tori­cal and strategic reasons, arguments in favor of new “plural establishment” in a context of non-establishment (like the U.S.) would have to be much stronger than reasons for “constitutional pluralism” or for “dis-establishment” in a context of “weak establishment” (like in England). Reasons against new establishment are much stronger, perhaps even pro­hibitive.

In addition, three typical relations between majo­rity and minority religions should be distinguished. First religious mino­rities do not succeed to form religious organizations at all (whether formally “recognized” by the state or not) or their religious organizations re­strict themselves exclusively to “private” re­ligious matters of salvation without any interfe­rence into public or political matters. This may result from choice (as in the case of the Amish or of Free Churches), from a weaknesses to built up organiza­ti­ons or from harsh state repres­sion/persecution. It may also be the re­sult of the predo­mi­nance of some strict “private/public” split combined with the de facto absolute predomi­nance of the religious majority (as in the case of the ‘individualized’ Ca­tholic republicanism in the U.S. from Independence to roughly the 1840’s (Casanova 1994:171-75)). This non-inter­ference, in turn, has to be understood as the result of threatened minority status. It usually ends when these religious organi­zati­ons grow stron­ger and/or the state (in the service of the religious majority-church(es)) se­verely re­stricts their basic religious free­doms. Second, minority reli­gi­ons suc­ceed to orga­nize (e.g. as ethnic minority churches or parishes) and publicly fight for actualization of their religious free­doms and recogni­tion in civil and political society without (yet) being re­cog­ni­zed legally, politi­cally, administratively (e.g. the deve­lopment of the Ame­rican Catho­lic Church from ‘a ca­tholic denomination in a free religious market’ to an ‘immigrant chur­ch’). Such a situation is inherently unstable and conflict-prone because this struggle will be either successfully re­pressed or the state has to recognize or­ganized mino­rity religions at least de facto and, even­tually, also administratively and po­liti­cally (which means de facto institutio­nalization). Even without any “formal” legal or con­sti­tutio­nal re­cognition this helps to plu­ra­lize organized re­ligious life and it triggers a higher degree of religious neutra­lity of the state compared with the former predominance of one religious majority (whether as a le­gally and constitu­tionally “established” church or un­der the guise of “strict” constitu­tional se­paration). Third, de facto and admini­strative recognition leads to some “formal” legal institutional pluralism as well, with or without “constitutional” plura­list establishment (e.g. the present situation in the Nether­lands).²² These contexts differ with regard to :

(a) the actual power of religious minorities to resist (legally or socially) enforced assimilation. Formally re­cognized or­ganized religions have better chances and resources than formally not recogni­zed ones, and both have considerably more power compared with “individualized” religion.

(b) The typical development of religious minorities and their strategies. Formally recognized, or­ganized reli­gious minorities undergo all the moderating and pacifying influences of insti­tu­tionalization. They tend to become integrated parts of a more pluralized official religious world whereas po­wer­ful and organized but unrecognized and “excluded” religious minori­ties tend towards more radical and separationist strategies “disintegrating” and polarizing the re­ligious world of a state-so­ciety. Individualized religious minorities have never aimed at, achieved, or they have lost their ca­pacity to develop collective strategies. They tend to vanish alto­gether without any impact on the reli­gious world.

(c) The actual impact of religious minori­ties on the state, on political society, and on civil so­ciety. Organized, po­werful and officially recognized religious minorities have better chan­ces and resources in order to exert influence on the state - not only on local administra­tion but also on the federal level and in all branches - compared with officially unrecognized ones, whose impact is circumscri­bed to the local level and to specific administrations. Offi­cial recognition is also an important asset in order to exert influence on political parties, me­dia, unions, on civil society and public opinion. Not recognized but powerfully orga­nized religious minorities, lacking these resources, may try to organize se­parate political parties. Individualized re­ligious minori­ties have no impact at all, neither on the state, nor on politi­cal or civil society.