Church state

III Practical Evaluation: Why "Non-constitutional Pluralism"?

Contexts clearly make a difference, as I’ve tried to show in the last section. Still we need some general criteria to evaluate institutional settings and policies. We would, rightly, not be satisfied with generalized statements like ‘it all depends’. In this section I try to develop some general moral, ethical and realist arguments²³ in favor of "non-constitutional plura­lism" in order to criticize the unquestioned predominance of the utopia of strict separation. For two reasons my evaluation remains rough and sketchy. First, the practical evaluation is complex and very much underresearched and, second, limits of space forbid a detailed dis­cussion of all relevant issues. I decided to give an overview of the many problems and dilemmas involved and, consequently, had to bracket many important debates and to sidestep deeper discussions of other problems I touched upon. I have chosen to bracket many of the general questions in the controversy on cultural and re­ligious pluralism on which political philosophers have mainly, sometimes even exclusively focused. Why should we accept cultural pluralism as a fact instead of fighting it? Why should we even strife to promote it? If we want to promote cultural pluralism which nor­mative arguments are more convincing: perfectionist ethical arguments (the good life) or mo­ral arguments (justice as fairness)? Can they be combined and, if so, how? If cultural plura­lism is a good thing in itself, should the state promote it or should that be left to civil society or to ‘private’ actors? Is there a crucial distinction between cultural pluralism and religious pluralism? etc. The main reason for bracketing these issues is that they have been much more on the spot²⁴ than the relations between cultural and institutional pluralism and, parti­cularly, the more ‘down to earth’ and muddy issues of varieties of institutional settings and of policies. Bracketing these questions, however, does not mean that I would be agnostic about them. Living in culturally and religiously diversified societies, for me, is not a regret­table fact. It is enjoyable and a good thing. Broadly speaking there are two types of normative arguments in favor of cultural pluralism: perfectionist arguments of a good life (intrinsic value of diversity) and moral arguments that "justice as fairness" or "evenhandedness" requires recognition of diversity. Even if one recognizes that moral arguments cannot be completely neutral regarding values of a good life, I favor moral arguments based on his­torical and structural inequalities because all stronger and more meaningful notions of per­fectionism sit uncomfortably with the fact of deep cultural and religious pluralism and deep di­sagreement on most matters of a good life. Fairness arguments, to me, are more minimalist and convincing. They combine two broad ideas. First, the fact that the state has historically not been ‘neutral’ but has actively promoted and guaranteed deep ine­qualities between majority and minority religions and is still doing so, morally requires at least some redress. Second, meaningful notions of substantive and informed freedom of choice are critical not only regarding state-enforced religious assimila­tion but also regarding societally enforced assimilation. If these combined minimalist moral arguments in favor of religious pluralism would be convincing, perfectionist pleas would only strengthen my case for institutional pluralism. If not, we would be forced back into the ongoing general discussion.
III.1 Moral Evaluation

Religious Freedoms

The fact of moral pluralism impinges on the moral evaluation of the four institu­tional options. The debate on the two religion clauses of the First Amendment has shown (Bader 1999) that moral principles are indeterminate. This does not imply, however, that “anything goes”. Each interpretation and each institutional ar­rangement has to be compatible with the moral and constitutional principle of religious free­dom.

‘(1) Everyone has the right to freedom of thought, conscience and religion; this right includes free­dom to change his religion of belief and freedom, either alone or in community with others and in public or pri­vate, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to ma­ni­fest one’s re­ligion or beliefs shall be subject only to such limitations as are prescribed by law and are neces­sary in a demo­cratic society in the interests of public safety, for the protection of public order, health or mo­rals, or for the protection of the rights and freedoms of others’ (ICPR Art 9).

This human right of religious freedom is conventionally understood to guarantee two dif­ferent freedoms: The freedom to belief, or the freedom of individual conscience and the free­dom to practice religion in worship, ritual, teaching, observance (whether, as usual, collecti­vely or individually, whe­ther in “private” or in “public” spaces). And the freedom of (organized) religion (sects, denomi­nations, churches) from illegitimate state control.²⁵ Any productive interpretation of religious freedoms has to recognize serious inherent tensions.

The negative freedom from illegitimate state control seems to mandate not only “no aid” to religions but more generally “no involvement”.²⁶ As all other negative freedoms, however, the freedom of indivi­dual believers and of individual and collective religious practices from persecution and sup­pression requires at least some state-involvement for two reasons. First, it is not only direc­ted against state-interference, but also against persecution, op­pression and all other forms of illegitimate interference by other (organized) religions (majority religions amongst them) as well as by other “secular” groups and organizations (see Shue 1995:13). The state has the obliga­tion to pro­tect all (organized) religions from such interference. Second, religious freedom protects not only individual freedom of conscious­ness and religious practice but also collec­tive practice of organized religions (‘equal respect for religions taken as collective wholes’ (Parekh, PSI 18; see HLR Note 1987:1740-81)) and collec­tive autonomy easily contradicts individual religious freedoms.

In my view, a liberal-de­mo­cratic state has the duty to protect individual believers against their “own” religious group, their organizations and leaders. Freedom of religious belief and practices, like all other free­doms, is constrained by the equal religious liberties of other believers and by all other civil, political and social rights which are equally part of the constitutions of mo­dern, social, libe­ral-democratic states.²⁷ Many examples come to mind where religious be­liefs and individual or collective practices - guaranteed by “free exercise” - are incompatible with other human rights. Religiously legitimized practices of caste, bondage, slavery are su­rely incompatible with the most minimalist interpretation of modern freedom and equality. In her ‘Religion and Women’s Rights’ Martha Nussbaum provides a quite extensive list of problem areas and cases in which women’s individual human rights apparently conflict with freedom of traditional religious practices as interpreted by religious organizations and leaders.²⁸ Practi­ces of sati (immolation of widows following their husband’s death), of do­mestic violence, stranger-rape, marital rape, sexual abuse and genital mutilation obviously con­flict with mi­nimalist interpretations of a universal right to life and bodily integrity. Reli­giously legitima­ted practices of discrimination of women in employment, in marriage- and divorce law²⁹ are at least very dubious. Why can we not avoid this ‘apparent dilemma for the modern liberal regime’³⁰ by insisting on a rigorously individualistic, secularist inter­pre­tation of human rights, by fiercely attacking all “group rights”, including any collective au­tonomy for (organized) religions, by prescribing all separate codes or systems of religious laws and in­sisting on a ‘uniform civil code’ as most standard-liberals do?³¹ Unfortunately, this “solution” neglects the problem that actual freedoms of religious practices do not fall from heaven and need collective arrangements, at least under conditions of se­rious inequa­lity. Group rights and some form of “collective autonomy” are needed by reli­gious minori­ties to achieve more freedom from ‘intrusive interference’ both from actual states and from organi­zed majority religion(s). Only under “ideal circumstances” would they become less impor­tant.³² But how to achieve a more sensible balance between protection of vulnera­ble indivi­duals and groups inside religious minorities against minority organizations and leaders, and outside protection of vulnerable religious minorities against religious majorities and ‘their’ state?³³ An extensive secularist and individualist interpretation of human rights would not leave much of the hallowed religious freedoms, on one hand. An extensive parti­cu­larist interpre­tation of collective religious autonomy (so strongly preferred by traditiona­list religious leaders) would lead, on the other hand, to a limitless toleration of the intolerant and intole­rable, to a complete neglect of the rights of non-believers, other religions, women, children. Obviously, no easy answers can be expected, no easy solutions are available.

The positive freedom to belief and practice, emphasized by an accommodationist reading of the “Free Exercise Clause” (McConnel, see HLR Note 1987:1642) seems to ask for a more substan­tive involvement by the state than the minimally required invol­vement to guarantee the ne­gative freedoms. It is often interpreted to require at least some "assistance or aid” to religions, some mate­rially “equal treatment of religions”.³⁴ Libertarians and other radically individualist liberals deny any such duty. For them, equal treatment is redu­ced to equality before and in the law and the absolute priority of liberty discounts any more sub­stantive notion of equality of re­ligions.³⁵ “Aid” to religions is none of the state’s business. Only in this way, a strictly and consequently equal treatment of all religions (majority or minority) and of nonbelievers can be achieved. This position is also consequent in its neglect of struc­tural social inequali­ties in general, of religions in particular. All moderate liberal de­mocrats, social liberals, so­cial democrats and liberal-democratic socialists criticize these in­dividualis­tic radicals. Gui­ded by more substantive notions of equality, they have to balance liberties from and liberties to, have to take inequalities into account, and have to find ways and means of “involvement” compatible with relational neutrality.

“Strong” establishment is clearly incompatible with religious freedom. The fact that the principle of religious freedom is invoked neither by proponents nor by opponents of com­plete dis-establishment during the PSI-debate indicates that it is ‘beyond dispute in any libe­ral society’ (Parekh, PSI 19). Existing “weak” es­tablishment in England is understood to be fully compatible with the principle which de­marcates the minimal moral requirement any variety of “establishment” has to satisfy in order to be mo­rally or legally defensible at all. “Constitutional pluralism” is more explicit in the guarantee of religious freedoms to a plurality of organized religions. “Non-constitutional pluralism” and “Non-Establishment + private pluralism” most clearly express this fundamental prin­ciple. Con­trary to predominant American opinion, however, “non-constitutional pluralism” may be a stronger option for two reasons. First, it is obvious that actual free­doms of be­lief, practice and organization do not fall from heaven and that constitutional or legal pro­tec­tion alone can never serve as their only guarantees. Their guarantee should the­refore not be left to “law” and Supreme Courts alone. Public and political pressures by orga­nized religi­ons helps to remind “benevolent” religious majorities (including jud­ges) of dis­crimina­tory prac­tices.³⁶ Formal recognition of organized religions is an important political and legal as­set. Se­condly, with regard to the freedom of (organized) religions from (illegitimate) state control, the three typical situations, distinguished above, differ. On the one hand, it is ac­tually much more difficult to minimally control individualized religious beliefs and practi­ces and loosely organized “invisible” sects (think of many recent examples of (enforced) col­lective “millenarist” suicide) compared with more organized sects (think of Bhagwan or Scientolo­gists) and organized churches.³⁷ Legal or constitutional recognition of churches by states with liberal democratic constitutions requires at least verbal recognition of religious free­doms of others, religious pluralism, obedience to (sensitive interpretations of) the law of the country and also some mi­nimal actual commitment to liberal-democratic principles. Ac­tual institutionali­zation and formal recognition heighten the possibilities and the means of state control. Or­ganized reli­gions, and particularly their elites and leaders (may) tend to be­come dependent upon tax exemptions, subsidies and other material, legal, political, symbo­lic pri­vileges. This opens ways and means of exerting effective influence by government and local ad­ministration on churches, on one hand, and by leaders, representatives, spoke­speople of churches themselves on laity on the other hand. Both forms of influence may be illegitimate: the first one may illegitima­tely restrict religious freedoms far beyond the mini­mal control required by principles of li­be­ral-democratic consti­tutions; the second one se­riously strengthens the power-resources of traditionalist leaders, elites and bureaucrats in­side religious organizations and thereby weakens the chan­ces of lay believers to liberalize and democratize their “churches” if they wish so. It is one of the para­doxes of institutionali­zation that growing influence on the external world has to be paid with the price of growing influence from outside and from above.³⁸ State control may go beyond the tolerable long be­fore the threshold of “Erastian esta­blishment” has been passed, and this is the reason why religious organizations may resist any “formal” insti­tu­tionaliza­tion. Then, however, they have to pay the price of losing important resources to exert influ­ence on the external world. This dilemma is well-known from the historical strug­gle of all emancipa­tion movements, be it workers, blacks, women, gays and lesbians or reli­gious minorities. Again, no easy soluti­ons are available.
Democracy and Political Citizenship

Political citizenship has to be equal for all citizens irrespective of their “race”, sex, gender, ethnicity, class or religion. Democratic principles like political liberty and equality and the corresponding political rights preclude all particularist categorization of specific groups, all specific groups rights and all forms of institutionalized political pluralism, so it is often said. All options to institutionalize religious pluralism seem thus incompatible with liberal demo­cracy. Difference-blind legal rights, however, are not enough to achieve higher degrees of ac­tual political neutrality of the state, of political society and civil society, neither in mat­ters of sex and gender, of ‘race’ and ethnicity’ nor in matters of religion (Bader 1999).³⁹

“Strong establishment” is not only incompatible with religious freedoms, it also implies de jure and/or de facto exclusion (or discrimination) of persons adhering to other (organized) religions or infidels from the right to vote, to stand for candidate and to equal access to pu­blic service, from the freedoms of political communication and association, and so forth. Re­ligious se­cond class citizenship is obviously morally wrong and incompatible with liberal-democratic constitutions. Like all morally permissible forms of modern, democratic political pluralism (e.g. “associative democracy”), all options to institutionalize religious pluralism have to live up to these minimal moral requirements. Granted effective political rights and freedoms, however, do the requirements of equal political citizenship require “complete dis-esta­blishment”? Do they favor “non-establishment” compared with “weak” and “plural es­ta­blishment”, as the Supreme Court consistently has ruled? Do they make a relevant diffe­rence between the two options of non-esta­blishment?

Anne Phillips seems to think that only “dis-establishment” or “non-esta­blishment” are de­fensible options. She distinguishes three alternative ways of thin­king about the question of what democratic equality means in the context of a multicul­tural and -religious society (PSI, 24ff). The first view is a strongly assimilationist one (either in a civic repu­blican ver­sion or in an ethnic nationalist version). The second view is more ‘accommodating to different practi­ces and values, so long as these remain within a broadly private sphere in which people can get on with their own chosen affairs, and a public realm ordered around a rather minimalist set of shared presumptions’ (25). This classical liberal solution to cultural and religious diffe­rence falls ‘far short of genuine recognition or mutual acceptance’ for lack of public recogni­tion. Her own third view requires ‘that differences should be more expli­citly acknowledged and brought onto the political stage’ (26).⁴⁰ Howe­ver, she claims that such public delibe­ra­tion and democratic decision-making itself requires complete dis-establishment, a fully secu­lar state and political society.

“Weak establishment” of one church fares badly for two reasons: it does not officially re­cog­nize the plurality of (organized) religions in civil society, political society and in the state, and it tends to curtail the actual political opportunities of minority religions. “Constitutional pluralism” and “non-constitutional pluralism” correct both deficiencies. Compared with dif­fe­rence-blind “non-establishment” they imply two important advanta­ges: they tend to tackle the actual political and cultural hegemony of existing religious ma­jorities more effectively and they tend to contribute more to actual religious pluralism in ci­vil and political society. Difference-blind non-establishment either neglects inequalities and asymmetries of power in the world of religions completely, or, in the case of American libe­ral pluralism, it does not provide minority religions with relevant resources and political opportunities to correct them (they are not ‘brought onto the political stage’ effectively). “Constitutional pluralism” and “non-constitutional pluralism” do not only recognize the plurality of organized religi­ons administratively and politically, as all institutional options inevitably have to, they add formal and legal recognition. They give them more clout by inte­grating them into the deci­sion-making structure in specific fields and on specific issues. “Non-constitutional plura­lism” is preferable to “constitutional pluralism”, in my view, because it expres­ses the principles of "priority for de­mocracy" and public morality more clearly (see Bader 1999).
Substantive Equality

Arguments in favor of religious pluralism based on justice as fairness, not on perfectionist notions of the good life refer to equality, but equality is a very general, contested, and inde­terminate moral principle.⁴¹ As we have seen, libertarians and radical individualistic libe­rals give absolute priority to liberty and accept only equality before and in the law. For them, the only institutional setting compatible with equality is “complete dis-establishment” because all other options are said to be inherently unfair either to other churches, other denominations, other religions, or to non-believers. Appealing to ‘equality and justice’ (48) as central moral principles, Jim Herrick, from a secu­lar humanist view, thinks that only complete dis-establishment can ‘remove the injustice of Church privilege in relation to other denominations and other religions’ (PSI 47). Instead of extending legal privileges to other churches and religions it is better to remove them altoge­ther. In his strictly separatio­nist view, this also includes that the state should abstain com­ple­tely from supporting religi­ons in general, from subsidizing church schools (PSI 50) in parti­cular.⁴² In a sense, this consequent position would, indeed, maximize strict or formal equa­lity before and in the law, because there would be no legal or any other privileges at all and minority religions would have no opportunity to claim legal, fiscal or other privile­ges in complaints about unfair or unequal treatment.

All positions who do not completely sacrifice notions of social equality (of opportunities, procedures, of resources, of rewards, of status, of capabilities or whatever) have to think about measures how to tackle serious, deep-seated inequalities among religions. For them complete dis-establishment ‘is not required by the principle of religious equality’ (Parekh, PSI 20). They recognize that state policies in modern welfare states affect the diversity of re­li­gious believers and non-believers in direct and indirect ways, and that these policies can­not be completely neutral, neither in the justificatory sense (“secular purpose”) nor with re­gard to their consequen­ces ("direct or indirect effect”, Bader 1999). This is obvious in many fields other than religion, like health (abortion, euthanasia etc.), education (curricula, peda­gogy, financing, prayer in public schools).⁴³

Here, I want to highlight only two general points. First, no general answers can be expected, because different situations in societal fields as well as differences between historical and institutional setting require differentiated policies, as theo­rists of contextualized morality have convincingly shown. Second, as shown above, policies can aim at facili­tation or impediment of religions or they can take an indifferent stance. They can try to persuade, reward or punish, they can make use of a variety of means (laws, or­ders, mo­ney, other material resources, skills, information etc.). Whate­ver mix is chosen, all policies to redress serious inequalities have to be evaluated not only for their ef­fectivity and democratic legitimacy, they have also to be scrutinized for unnecessary inroads against equality before the law. They all have to confront the nasty problems known from the affir­mative action debates:⁴⁴ Which religious minorities? The categorization of tar­get groups is inevitable for institu­tionali­zation (for “procedural” participation in political deli­beration, agenda-de­termination, deve­lopment of alternatives for decision-making, deci­sion-making, implemen­tation and control) as well as for (re)distribution of specific benefits or burdens). How serious have ine­quali­ties to be to make political action necessary and po­ten­tially effec­tive?⁴⁵ Does the fact that these inequalities are deeply historically rooted, legiti­mize their continuation or, conversely, re­quire additional attempts to guarantee more equal chances in the future?⁴⁶ This difficult art of practical judgement should be guided by second order principles and the principles of "relational neutrality" and "fairness as even­handedness" can do a better job than liberal models of neutrality and impartiality or radical differentialist parti­zanship. All options to institutionalize religious pluralism give religious minorities more voice and muscle than “complete separation” and “private pluralism”. By this, they stimu­late public deliberation, the necessity to develop the arts of prudent balan­cing and of fair democratic decision making. In “weak establishment” such a balancing includes a price to be paid for the legal privileges of the established church and for the many subsidies for buil­ding churches, running special religious instruction, separate reli­gious schools. It would be morally impermissible to neglect the claims of (organized) minority religions completely. In the ‘primus inter pares’ version of "constitutional pluralism", this price is more vi­sible and fair­ness requires that the claims of newly developing (organized) religions should be treated in a sensitive way.