Church state

from and equal freedom to:: (i) the state should not persecute or suppress any religion, but may privilege one, (ii) it should protect all religions equally; (iii) it should not institutionalize or protect any religion; (iv) it should pro­mote a reli­gion under threat’.

35See generally: Hayeck. See HLR Note 1987:1717ff for conflicting interpretation of religious equality by the Supreme Court (Sherbert Accommodation (substantive equality) versus Lemon Neutrality (formal equality), see also Kur­land).

36See Benhabib 1992; Bartholomew 1999. In my view, however, the confrontation of ‘thicker’, less abstract, unitary and anonymous concepts of publicity stressed by a ‘deliberative’ paradigm and an ‘interactive form of reason’ and fairly unspecified ‘new and special procedural or participatory rights’, on one hand, with ‘constitutional rights’ and a ‘legislative form of reason’, on the other hand, is counterproductive. Similar critical remarks versus J. Waldron 1999.

37Compare the more ‘libertarian’ political and legal attitude in the United States with the more ‘interventionist’ one in Germany as an illustration of the morally permissible, but completely different balancing of religious freedoms and other human rights.

38See Bader 1991 (chapter VII,4, particularly 240-42) for a general treatment of the dilemmas of institutionalization. Most sects and Free Churches are obviously willing to pay this price (see Martin; see Swaine’s liberal proposal to grant semi-sovereignty to theocratic communities (1999): ‘legislative autonomy on a wide range of matters, while requiring them to follow certain basic regulatory guidelines’ (26).

39The idea of ‘freedom of the State from the Church’ (Audi 1989, Swaine 1996) should, in my view, be replaced by the sober aim to achieve higher degrees of relational religious neutrality of state, political and civil society.

40For an excellent discussion see: Squires 1999.

41Parekh (PSI 20) distinguishes ‘religious equality in terms of equal for­mal rights’, ‘in terms of equal outcome’ and ‘in terms of equal collective recognition’. See more generally: Bader 1998b.

42Anne Phillips, on the contrary, thinks that ‘public funding of religious schools’ is completely com­patible with mo­dern feminism even if one regards religion ‘as a matter of private choice and practice’ (24). HLR Note (1987:1693f.) shows that both ‘aid to all’ and ‘no aid at all’ may result in religious favoritism.

43It is way beyond this article to give a sketch of what the different conceptions of social equality, or may own con­ception of rough, complex equality would require regarding these different fields. See for education and law: Ba­der 1998:a:195-200.

44 See HLR Note 1987:1721f. for some differences: in religion cases, more accommodation is required.

45If one starts from serious “paradigmatic” inequalities instead of ideal models of equa­lity (see Bader 1999) one has to answer more practical questions of thresholds of inequality and of perceptible risks (see Gut­mann/Thompson 1996). See Bader 1998b:445f for the full list of problems to be answered.

46In cases where constitutional dis-establishment has been fairly recent and has been antedated by very long pe­riods of "strong establishment" and actual predominance of one ore more Christian churches, a policy of “strictly equal treatment of religions” may be very harsh and unfair. It would neglect all the legal and material advantages these established church(es) had till recently in building and continuing their predominance. May we neglect this recent history by stating that newly organizing religions just had the bad luck of newcomers? Or do we have good moral reasons - strictly analogical to the well-known arguments for affirmative action (see Bader 1998b:445f) - in favor of some additional funding and subsidizing? See Rath et al. 1996:254 for NL af­ter 1983.

47The same argument is nowadays often heard from Islamic scholars.

48Hastings (41, 44), Valery Pitt (PSI 38) and Jim Herrick (PSI 47f) recommend complete dis-establishment as libe­ra­tion for the Anglican church itself.

49 This is also Casanova’s ‘central claim ... that established churches are incompatible with modern differentiated sta­tes and that the fusion of the religious and political community is incompatible with the modern principle of citi­zenship’ (213, see 29, 47f, 51, 89).

50Also versus Adrian Hastings’ mixture of a quasi-prescriptive use of ‘some sheer bric-a-brac acquired from his­tory’ (43) with the need for some religious socio-moral symbolism, a mixture which is also charac­teristic for Pa­rekh’s ar­gument. In a normative and political debate whether one should change constitutional settings, re­fe­rence to the le­gitimacy of ‘historical anomalies’ (44) is an additional argument only versus linear evolutio­nism. Otherwise it is in danger of presenting some Whig-history and of being inherently conservative (see also Unger 1998:179-82; Bader 1997b:780-3).

51Kulananda recognizes ‘one of the valua­ble functi­ons of the church-state link.. to bring a high degree of symbolic significance to state occasions’ but sees no need for ‘a legally sanc­tioned link’ (PSI 70). See my criticism of fashionable ‘rights to identity’ discours: Bader 2000b.

52The role of religion(s) and of different versions of (dis-)establishment for ‘social cohesion’ (PSI, Modood 11) or for political stability is highly contested. Like many defenders of "weak" or "plural establishment", Deepak Naik argues against the trivialization of faith by secularists. ‘This is unfortunate, for its presence anchors an indivi­dual’s iden­tity, builds confidence, establishes a sense of security, and so society reaps the benefits. Without faith, society can be weakened, if individuals have no anchors and their roots are questioned repeatedly’ (76). (See Bader 1999 for a re­futation of the claim that ‘secular’ morality would be impossible or weak). Opposing this view, Valerie Pitt rejects old and new projects which ‘associate social cohesion with common (s.c. religious) be­liefs and common rituals’ and therefore necessarily are ‘exclusive’ (37). Some tricky theo­retical and empirical questions are involved: how much and which kind of ‘social cohesion’, ‘political stability’ and ‘political unity’ is needed? (see Bader 2000).

53See Kulananda (PSI 71f) for the practice of prison chaplaincy and the paradox of a missionary church as “the guar­dian of religion”: the Anglican church would have to be “both poacher and gamekeeper - a task in which it cannot but fail”.

54Because Islam has always been in favour both of es­tablishment and multi-confessionalism (Millet system in Ot­to­man Empire).

55‘We would either like to hear and see the Church put the general case for be­lievers, as opposed to narrowly hog­ging the show for Anglicans, or give up some significant percentage of its enormous airtime to the other minority faiths.’ (PSI 85). The Anglican church has opposed any broadening of the law against blasphemy. Yet, after some initial hesita­tions, it argued in favor of the VA-status for Islamic schools (Rath et. al. 215, 228).

56See 74, 79, 81: ‘If an ethnic minority group is unfairly resourced, then the tools of power - be they resources, money, information, expe­rience, in­ternal infrastructure - have not been distributed on an equal basis, and no process of empo­werment has occurred’. ‘This leads to questions of how power can be distributed so that all groups of society feel a sense of citizenship and belonging, and identify with the success and stability of this country, with all its cultu­res, traditions, peoples and religions.’ (80).

57It is clear that "weak establishment" definitively did not positively contribute to religious pluralism. In England, Muslims had little or no support from government. Subsidizing of Islamic schools has acti­vely been resisted, and none of the about 50 Islamic schools has got any subsidies. There are no Islamic religious lessons in pu­blic schools while existing lessons in religious instruction are - by governmental authority - heavily Christian bia­sed (see Rath et al. 1996:219f). Prison and military chaplaincy is the monopoly of the Anglican Church. In the Netherlands, to confine myself only to the mentioned issues, government, though inconclusively and in lo­cally divergent patterns, has allowed or acti­vely subsidized Islamic schools (about 30 by 1996) and has recognized Islamic councils of educa­tional governance, an Islamic pedagogic institute. The foundation of an Islamic insti­tute for the education of Imams in the Nether­lands is still discussed. Islamic religious les­sons are available in some public schools, and Is­lamic chaplaincy in prisons and the armed forces is legally allowed. Without any further discussion, I think such a com­parison shows that either, in a weak interpretation, constitu­tional arran­gements do not have any effect at all, or, in a stronger interpretation, that the "weak establishment" of the Angli­can Church has a negative effect on actual reli­gious plura­lism and its societal institutionalization.

58In the case of religions, the dilemma of categorization by the state is less urgent than in cases of “race and eth­ni­city” because, for mature people, it has solely to be based on self-categorization.

59See Casanova 1994:173f for the development of Catholicism in the U.S. See Parekh 1994:221.

60See Rath et al. 226ff for more reactions (WCC, NUT, SEA) including ‘absolute horror’, ‘apartheid’ etc. See also Grillo 1998:207 – 12.

61Education has proved to be the most sensitive area (see Martin 1978 pass.). General pleas against institutional plu­ralism in education often show such a slippery slope from model to muddle. They are still widespread among the different strands of democratic theory, be it liberal, deliberative or republican (see Macedo 1997, Bauböck 1998, Gutmann 1987 and Gutmann/Thompson 1996, Unger 1996, Barber). For a more context-specific treatment and de­fense of institutional pluralism in education: Hirst 1994, Bader 1998a.

62Institutional religious pluralism may also contribute to the ‘Islamization’ of different ethnic and national minori­ties, as Dutch experiences with the remnants of pillarization show. In the UK they are made ‘Asians’, in the Ne­therlands they are made ‘Muslims’, and this construction of ‘the other’ is molded by the institutional structure of the receiving state. The historically well-known amalgamation of ethnic and religious minorities (see Martin, see Casanova for the Catholic church in the U.S.A.) may be hard to prevent. It may be easier, ho­wever, to prevent this explosive mixture from going political.

63The degree of institutional separation and completeness should be higher in the case of national minorities than of migrant-ethnic minorities (see Kymlicka 1995, see Bader 1996). Only in the special case of full-scale reli­gious pillarization, religious minorities resemble national minorities (see Toonen 1996).

64In my view, institutional pluralism may indeed help to contain religious fundamentalism though, obviously, not in all contexts (e.g. in the US, institutional separation has been a breading ground for religious fundamentalism in the case of the Presbyterian Church of America (see Stoltenberg 1993:619-23) and for the politicization of fundamenta­lism (623-28). The relati­onship bet­ween various state - religion links is not comparatively researched enough to al­low strong empirical state­ments. Strong arguments in favor of religious institutional pluralism as a “peace-for­mula” are presented by Lehmbruch 1996:746f. From the 16th Century on proponents of freedom of consciousness, of religion and of institutionali­zing reli­gious pluralism always have defended tolerance or toleration with pruden­tial arguments as a means to stabi­lize peace, rest, political order (see for debates between Lipsius, Beza and Coorn­hert: Petit 1998). Three theoretical hypotheses seem plausible to me: (i) Existing, “weak” esta­blishment may ac­tually contribute to a political radicalization of the ex­cluded churches or denominations for lack of official recogni­tion and channels and resour­ces in “official” or formalized democratic politics. (ii) Institutionalizing religious plu­ralism may help to contain religious fundamentalism for two reasons: Firstly, it officially recogni­zes the most im­portant organi­zed religions and gives them some say in normal politics. Se­condly, it enables the libe­ral-democratic state bet­ter to control whether these organized re­ligions inter­nally live up to the minimal legal requirements stated above, and it allows for some public and eventually financial pressure in order to achieve this. (iii) If institutio­nal pluralism ac­tually has these advantages, they seem to be completely independent from the fact whether a plurality of organized religions is “formally” or “constitutionally” established or not. I think Rothschild is right that ‘public activity’ tempers fundamentalism, yet the discipline of the “public use of reason” (see Bader 1999) should not be confu­sed with the issue of constitutio­nal/legal esta­blishment. If it works, its modera­ting effects will be felt by public, non-esta­blished religions as well, or even more strongly than by esta­blished churches.

65See Cohen/Rogers 1995, Hirst 1994, Schmitter, Streeck among many others. See Bader 2000a.

66Pluralist institutionalization of (religious) minorities in all its different varieties is a two-way process. On the one hand, it allows minorities some (organized and formalized) influ­ence on state and administration as well as on political so­ciety and civil society, and it also may contribute to a process in which minorities build their own collective orga­nizations and leadership. Compared with a situation of unorganized and leaderless minorities this strengthens the resources of minorities to resist otherwise quick and complete assimilation. But, on the other hand, it also implies that state and administration (on cen­tral, regional, lo­cal levels) influence the organizational structure, choice of leadership and stra­tegies as well as the general development of religious minorities. This influence is diffe­rent, and it may be much stronger, in the case of pluralist institutionalization compared with the general in­flu­ence, which the constitutional, legal and political structure and the political and cultu­ral climate of a country inevitably exerts on all (religious) minorities whether individuali­zed, collectively organized, or in some way “established” (see Bader 1999 for this ‘transformative’ impact). Pluralist, more or less formalized in­sti­tutionalization is a give and take process, and recognition, the granting of subsidies, par­tici­pation in official councils etc. have their price. In a normative perspective, the crucial questi­ons are: which criteria, which types of influence are compatible with the principle of reli­gious freedom and the ideal of a “truly multi-religious” society?

67Rainer Bauböck, in a personal communication, has reminded me that other reasons than “history and identity”, highlighted by Parekh, might be stronger: (i) Reasons against new “plural establishment” might be stronger than reasons in favor of dis-establishment, perhaps even prohibitive. The question how minorities are affected by insti­tutional settings and which reforms are imperative to guarantee equal respect and concern, is more im­portant than constitutional matters like "weak establishment", "constitutional pluralism" or dis-establishment. (ii) Pragmatic argu­ments that established churches are under pressure to liberalize internally. (iii) Arguments from a ‘liberalism of fear’ (Judith Shklar) against the dangerous combination of religious radicalism and political power. This danger does not primarily emerge from established churches in Western Europe but rather from radical liberal/secularist dis-establishment, which may cause traditional religious communities, like Evangelical Protestantism, to compen­sate their shrinking public role by a politicization of religious oppositions in civil and political society, a process under way in the U.S.

68See for analogous experiences with legalization of co-determination: Engelen 2000:chapt. 3. See HLR Note 1987:1728ff. for similar effects of Judicial Accommodation compared with Legislative Accommodation.

69See Hirst 1997:9ff., Bader 2000a and Carens 1999 (Introduction) for this dilemma to find an appropriate balance of generality and specificity.