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.
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