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Published online by Cambridge University Press: 10 December 2015
This article addresses religion from a legal perspective. It argues that religious matters should be settled outside the secular legal system; otherwise, the secular legal system would not be truly secular. However, religion demands special protection as a public good and social value, as it constitutes an extrinsic constitutional limit of the legal. For a secular legal system, protecting religion ultimately means protecting human beings' pursuit of the suprarational. Protecting suprarationality has three important legal consequences: (a) suprarational acts in the strictest sense should never be validated as legal acts; (b) democratic communities should not use suprarational arguments in legal discourse; and (c) the secular legal system cannot regulate suprarationality or the essentials of the religious community. The protection of religion demands both a dualistic structure that distinguishes the political community from the religious community and the treatment of religion as a right: the right to religion.
1 See K Greenawalt, Religion and the Constitution, I: fairness and free exercise (Princeton, NJ, and Oxford, 2006), p 137. For different rationales, see, among others, J Witte and J Nichols, Religion and the American Constitutional Experiment (third edition, Boulder CO, 2011), pp 21–40; A Koppelman, Defending American Religious Neutrality (Cambridge, MA, and London, 2013), pp 120–165; B Leiter, Why Tolerate Religion (Princeton, NJ, and Oxford, 2013); K Brady, The Distinctiveness of Religion in American Law (New York, 2015), pp 285–299.
2 In a similar way, see T Macklem, Independence of Mind (Oxford, 2006), pp 131–140. Macklem considers faith as a basis for freedom of religion. I prefer, however, the word suprarationality, since it expresses much better the intrinsic relationship between religion and reason. On the relation between rationality and the religious commitment, see R Audi, Rationality and Religious Commitment (Oxford, 2011), pp 191–285.
3 On the human capacity of achieving transcendent truth, see J Ratzinger, Truth and Tolerance, trans H Taylor (San Francisco, CA, 2003), pp 138–161. See also R Panikkar, Opera Omnia II: religion and religions, ed M Carrara Pavan (Maryknoll, NY, 2015), p 260: ‘rationality is not the only criterion for truth’.
4 On this public dimension, see especially Glendon, M, ‘Religious freedom: a second class right’, (2012) 61 Emory Law Journal 971–990Google Scholar.
5 On this complementarity, see Pope John Paul II, Encyclical Letter Fides et Ratio (14 September 1998), paras 36–42.
6 See G Vico, New Science, trans D Marsh (reprinted New York, 2013), p 409: ‘Now, since God is pure reason, divine reason and authority are the same thing: and good theology places divine authority on a level with reason.’
7 This is the reason why, in some European countries, some acts against worship and faith were criminalised (and some are even now). For an overview on the protection of worship and religious doctrine in Europe, see N Doe, Law and Religion in Europe: a comparative introduction (Oxford, 2011), pp 139–163.
8 For an overview of the regulation of proselytism, see J Witte Jr and R Martin, Sharing the Book: religious perspectives on the rights and wrongs of proselytism (Maryknoll, NY, 1999).
9 See also United Nations Human Rights Committee, General Comment 22, Art 18 para 9 (Forty-eighth session, 1993); Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 1 at 35 (1994).
10 The intention as such cannot be recognised by the legal system. However, legal systems are able to recognise the external expressions and manifestations of a concrete internal intention.
11 In Abington School District v Schempp, 374 US 203 (1963), the US Supreme Court treated bible-reading as it had prayer, concluding that Bible readings were clearly ‘religious exercises’. However, Justice Tom C Clark, who delivered the opinion of the Court, opened the door to the objective value of religious instruction for non-spiritual purposes.
12 See Marsh v Chambers 463 US 783 (1983). The argument that military and prison chaplains are required for protection of the free exercise clause is not relevant here since free exercise does not demand religious practices in legislative sessions. See K Greenawalt, Religion and the Constitution, II: establishment and fairness (Princeton, NJ, 2008), p 94, n 1.
13 See Marsh v Chambers at 791.
14 Spanish Constitutional Court (STC) 101/2004.
15 Spanish Constitutional Court (STC) 34/2011.
16 For a more detailed approach of the religious argument, see March, A, ‘Rethinking religious reason in public justification’ (2013) 107 American Political Science Review 523–539CrossRefGoogle Scholar.
17 See J Rawls, Political Liberalism (expanded edition, New York, 2005), pp 224–225.
18 C Eberle, Religious Conviction in Liberal Politics (Cambridge, 2002), p 333.
19 For a historical overview of blue laws in the United States, see Raucher, A, ‘Sunday business and the decline of Sunday closing laws’, (1994) 36 Journal of Church and State 13–33CrossRefGoogle Scholar.
20 McConnell, M, ‘Secular reason and the misguided attempt to exclude religious argument from democratic deliberation’, (2007) 1 Journal of Law, Philosophy and Culture 162–164Google Scholar.
21 See J Weiler, Un'Europa cristiana: un saggio esplorativo (Milan, 2003).
22 See R Brague, The Law of God: the philosophical history of an idea, trans L Cochrane (Chicago, IL, 2007).
23 In this vein, on torture, see Waldron, J, ‘Two-way translation: the ethics of engaging with religious contributions in public deliberation’, (2012) 63 Mercer Law Review 845–868Google Scholar.
24 McConnell, ‘Secular reason’, p 174, offers a good argument for the internal inconsistency of the prohibition of the religious argumentation in democratic deliberation. However, his argument is not in tension with mine. What I argue is that suprarationality does not cohere with legal coercion, but that does not mean that religious argumentation in general must be excluded from democratic deliberation. It just means that suprarational argumentation must be excluded from legal deliberation.
25 See L Zucca, A Secular Europe (Oxford, 2012), p 196. However, many legal terms have a religious origin. On the relation between language and law, see H Berman, Law and Language: effective symbols of community, ed J Witte Jr (Cambridge, 2013).
26 R Audi, Democratic Authority and the Separation of Church and State (Oxford, 2011), pp 65–66.
27 Ibid, p 69.
28 See J Rawls, ‘The idea of public reason revisited’, in Political Liberalism (expanded edition, New York, 2005), esp p 476.
29 For more on this argument, see R Domingo, The New Global Law (Cambridge, 2010), pp 65–73 and 131–136.
30 On the foundation of the idea of transcendent law, see Brague, Law of God.
31 For further explanation, see Domingo, R, ‘A new global paradigm for religious freedom’ (2014) 56 Journal of Church and State 427–453CrossRefGoogle Scholar.
32 See, in this vein, C Durham Jr, ‘Patterns of religion state relations’, in J Witte Jr and C Green (eds), Religion and Human Rights: an introduction (Oxford, 2012), pp 360–378.
33 For an overview of the different models of church–state separation, see, on Western countries, Whitman, J, ‘Separating church and state: the Atlantic divide’, (2008) 34:3Historical Reflections 86–104Google Scholar; and, for theocratic governance, R Hirschl, Constitutional Theocracy (Cambridge, MA, and London, 2010). For a European overview, see Doe, Law and Religion in Europe. For a general view of the US model, see Witte and Nichols, Religion and the American Constitutional Experiment.
34 For a general view of laïcité, see G Haarscher, La Laïcité (fifth edition, Paris, 2011) and the bibliography on pp 124–126; E Poulat, Notre laïcité publique (Paris, 2003); and Gunn, T, ‘Religion and law in France: secularism, separation, and state intervention’, (2008–2009) 57 Drake Law Review 949–984Google Scholar.
35 In this vein, see Troper, M, ‘Sovereignty and laïcité’, (2009) 30:6Cardozo Law Review 2561–2574Google Scholar.
36 On specific American neutrality, see Koppelman, Defending American Religious Neutrality, esp pp 15–45.
37 Troper, ‘Sovereignty and laïcité’, p 2564.
38 See Koppelman, Defending American Religious Neutrality, pp 1–14.
39 For an overview of church autonomy in Europe and the USA, see G Robbers (ed), Church Autonomy: a comparative survey (Frankfurt am Main, 2001).
40 In Hasan and Chaush v Bulgaria App No 30985/96 (ECtHR, 26 October 2000), the Grand Chamber of the European Court of Human Rights forcefully held the autonomy of religious communities. However, the decision does not make any specific distinction between autonomy and independence, which in my opinion is critical to a proper understanding of the topic.
41 For an overview of the legal position of religious organisations in Europe, see Doe, Law and Religion in Europe, pp 88–113; For an overview of the legal position of religious organisations in the US, see Witte and Nichols, Religion and the American Constitutional Experiment, pp 241–362.
42 See Pope John Paul II, Apostolic Letter Ordinatio Sacerdotalis, 22 May 1994, available at <http://w2.vatican.va/content/john-paul-ii/en/apost_letters/1994/documents/hf_jp-ii_apl_22051994_ordinatio-sacerdotalis.html>, accessed 5 October 2015.
43 Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission, 565 US __ (2012).
44 See abundant legislation in Doe, Law and Religion in Europe, pp 127–129.
45 On these constitutional structures of rights, see R Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford, 2002), pp 120–162.
46 See also Domingo, R, ‘A right to religious and moral freedom?’, (2014) 12 International Journal of Constitutional Law 226–247CrossRefGoogle Scholar.
47 Witte and Nichols, Religion and the American Constitutional Experiment, pp 41–70.
48 For further argumentation, see Domingo, R, ‘Restoring freedom of conscience’, (2015) 30:2Journal of Law and Religion 176–193CrossRefGoogle Scholar.
49 See also Alexy, Theory of Constitutional Rights, p 121.