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MAKING THE CASE FOR RELIGIOUS FREEDOM IN SECULAR SOCIETIES

Published online by Cambridge University Press:  05 April 2019

Mary Ann Glendon
Mary Ann Glendon*
Affiliation:
Learned Hand Professor of Law, Harvard Law School
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Extract

This is the text of the opening keynote lecture delivered at the conference, “Is Religious Freedom under Threat?,” Christ Church, Oxford, May 23–25, 2018, convened by Oxford University's McDonald Centre for Theology, Ethics and Public Life and Emory University's Center for the Study of Law and Religion.

It is truly an honor to deliver the opening lecture for this McDonald Conference titled “Is Religious Liberty under Threat?” Since it was only four years ago that I had given a talk on that subject for the Oxford Journal of Law and Religion’s Summer Academy, which built in turn upon my Harold Berman Lecture at Emory University two years before, I have had to give some serious thought to how I might avoid repeating myself. Yet when I looked back over what I said on those occasions, I wished that I had dwelt less upon the threats and more on the challenge of how to address them. What I would like to do in this lecture, therefore, is to offer some suggestions in the hope of stimulating discussion about how to make the case for religious freedom as a fundamental human right in today's increasingly secular liberal democracies.

Type
Essay
Information
Journal of Law and Religion , Volume 33 , Issue 3 , December 2018 , pp. 329 - 339
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2019 

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References

1 Glendon, Mary Ann, “Is Religious Freedom an ‘Orphaned Right?’” in The Changing Nature of Religious Rights under International Law, ed. Evans, Malcolm, Petkoff, Peter, and Rivers, Julian (Oxford: Oxford University Press, 2015), 1–8Google Scholar; Glendon, “The Harold J. Berman Lecture. Religious Freedom: A Second Class Right?” in “In Memoriam: David J. Bederman,” special issue, Emory Law Journal 61 (2012): 971–90Google Scholar.

2 Robert P. Jones and Daniel Cox, “Majority of Americans Do Not Believe Religious Freedom Is under Attack,” Public Religion Research Institute, March 15, 2012, http://www.prri.org/research/march-rns-2012-research/.

3 Dyfed Loesche, “Good God?” Statista, October 13, 2017, https://www.statista.com/chart/11473/religion-more-harm-than-good/.

4 Universal Declaration of Human Rights, G.A. Res. 217A, art. 18, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948) (“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”).

5 United States Commission on International Religious Freedom, 2017 Annual Report, April 2017, 1, https://www.uscirf.gov/sites/default/files/2017.USCIRFAnnualReport.pdf; see also “Global Restrictions on Religion Rise Modestly in 2015, Reversing Downward Trend,” Pew Research Center, April 11, 2017, http://www.pewforum.org/2017/04/11/global-restrictions-on-religion-rise-modestly-in-2015-reversing-downward-trend/. Restrictions continued to climb in 2016: “Global Uptick on Government Restrictions on Religion in 2016,” Pew Research Center, June 21, 2018, http://www.pewforum.org/2018/06/21/global-uptick-in-government-restrictions-on-religion-in-2016./

6 United States Commission on International Religious Freedom, 2018 Annual Report, April 2018, 1, https://www.uscirf.gov/sites/default/files/2018USCIRFAR.pdf.

7 Michael Lipka, “Religious Restrictions Vary Significantly in World's Most Populous Countries,” Fact Tank, Pew Research Center, April 13, 2017, http://www.pewresearch.org/fact-tank/2017/04/13/religious-restrictions-vary-significantly-in-the-worlds-most-populous-countries/.

8 Ruthven, Malise, “Fundamentalist and Other Obstacles to Religious Toleration,” in Universal Human Rights in a World of Diversity: The Case of Religious Freedom, ed. Glendon, Mary Ann and Zacher, Hans E., Pontifical Academy of Social Sciences Acta 17 (Vatican City: Pontifical Academy of Social Sciences, 2011), 456–74Google Scholar.

9 According to estimates cited in the 2015–2017 report of Aid to the Church in Need, Persecuted and Forgotten: A Report on Christians Oppressed for Their Faith (2017), https://acnuk.org/persecuted/. In announcing the report, Aid to the Church in Need stated that “Christians are the victims of at least 75% of all religiously-motivated violence and oppression.” https://www.acnireland.org/persecuted-and-forgotten-2017/.

10 Allen, John, The Global War on Christians: Dispatches from the Front Lines of Anti-Christian Persecution (New York: Image Press, 2013)Google Scholar; Fox, Jonathan, The Unfree Exercise of Religion: A World Survey of Discrimination against Religious Minorities (Cambridge: Cambridge University Press, 2016), 190CrossRefGoogle Scholar.

11 Philpott, Daniel and Shah, Timothy, eds., Under Caesar's Sword: How Christians Respond to Persecution (Cambridge: Cambridge University Press, 2018), 1CrossRefGoogle Scholar.

12 International Religious Freedom Act of 1998, Public Law 105–292, 112 Stat. 2787 (as amended by Public Law 106–55, Public Law 106–113, Public Law 107–228, Public Law 108–332, and Public Law 108–458).

13 Universal Declaration of Human Rights, art. 18.

14 As pointed out by the United States Commission on International Religious Freedom, 2010 Annual Report, May 2010, 17, http://www.uscirf.gov/sites/default/files/resources/annual%20report%202010.pdf.

15 For a detailed account, see Thomas J. Reese and Mary Ann Glendon, “Report from Vietnam,” America, February 29, 2016.

16 Michael R. Pompeo, “Remarks at the Ministerial to Advance Religious Freedom,” July 26, 2018, https://www.state.gov/secretary/remarks/2018/07/284550.htm.

17 For firsthand accounts, see Knox Thames, “Statement on Denmark's National Religious Freedom Day 2018,” US Embassy in Denmark, January 16, 2018, https://dk.usembassy.gov/national-religious-freedom-day-2018/; Jackie Wolcott and Sandra Jolley, “Legislators Abroad United for Religious Freedom,” Hill, November 14, 2016.

18 United States Commission on International Religious Freedom, 2018 Annual Report, 2.

19 See Farr, Thomas F., “The Ministerial Exception: An Inquiry into the Status of Religious Freedom in the United States and Abroad,” in Religious Freedom and the Law: Emerging Contexts in Freedom for and from Religion, edited by Scharffs, Brett G., Maoz, Asher, and Woolley, Ashley Isaacson (London: Routledge, 2019), chapter 2Google Scholar.

20 See Glendon, Mary Ann, “The Cultural Underpinnings of America's Democratic Experiment,” in Building a Healthy Culture, ed. Eberly, Don (Grand Rapids: Wm. B. Eerdmans, 2001), 41–58, at 46Google Scholar.

21 Katayoun Kishi, “Government Harassment, Use of Force against Religious Groups Increased Sharply in Europe in 2015,” Fact Tank, Pew Research Center, April 11, 2017, http://www.pewresearch.org/fact-tank/2017/04/11/government-harassment-use-of-force-against-religious-groups-increased-sharply-in-europe-in-2015/.

22 Katayoun Kishi, “Muslims, Jews Faced Social Hostilities in Seven-in-Ten European Countries in 2015,” Fact Tank, Pew Research Center, April 12, 2017, http://www.pewresearch.org/fact-tank/2017/04/12/muslims-jews-faced-social-hostilities-in-seven-in-ten-european-countries-in-2015/; see also, “Report Finds Dramatic Increase in anti-Semitic Harassment in the West,” Catholic News Agency, April 28, 2018, https://www.catholicnewsagency.com/news/report-finds-dramatic-increase-in-anti-semitic-harassment-in-the-west-54602#.Wu3kq8G9vAA.email.

23 Paul Coleman, “Europe's Free Speech Problem: A Cautionary Tale,” Public Discourse, July 5, 2016, http://www.thepublicdiscourse.com/2016/07/17113/.

24 As Richard Garnett recently noted, “there are more than a few troubling signs that [the traditional American] policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected.” Garnett, “Symposium: The Future of Accommodation,” SCOTUSBlog, May 17, 2016, https://www.scotusblog.com/2016/05/symposium-the-future-of-accommodation/.

25 See, for example, Leiter, Brian, Why Tolerate Religion? (Princeton: Princeton University Press, 2013)Google Scholar; Nickel, James W., “Who Needs Freedom of Religion?” University of Colorado Law Review 76, no. 4 (2005): 941–64, at 943Google Scholar; Tushnet, Mark, “The Redundant Free Exercise Clause?” Loyola University of Chicago Law Review 33, no. 1 (2002): 71–94, at 72Google Scholar.

26 Bradford Richardson, “Harvard Professor: Start Treating Christian Conservatives Like Nazis,” Washington Times, May 10, 2016, https://www.washingtontimes.com/news/2016/may/10/harvard-professor-start-treating-christians-nazis/.

27 Joe Davidson, “Civil Rights or Religious Liberty—What's on Top?” Washington Post, September 9, 2016.

28 Dalia Fahmy, “Americans are Much More Religious than Adults in Other Wealthy Nations,” Fact Tank, Pew Research Center, July 31, 2018, http://www.pewresearch.org/fact-tank/2018/07/31/americans-are-far-more-religious-than-adults-in-other-wealthy-nations/.

29 Schnabel, Landon and Bock, Sean, “The Persistent and Exceptional Intensity of American Religion: A Response to Recent Research,” Sociological Science 4, no. 28 (November 2017): 686–700, at 689CrossRefGoogle Scholar.

30 United States Commission on International Religious Freedom, 2018 Annual Report, 14.

31 Yuval Levin, “The Perils of Religious Liberty,” First Things, February 2016, 35.

32 Rienzi, Mark L., “The Case for Religious Exemptions—Whether Religion Is Special or Not,” Harvard Law Review 127, no. 5 (2014): 1395–1418, at 1396Google Scholar; see also Goodrich, Luke and Busick, Rachel, “Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases,” Seton Hall Law Review 48, no. 2 (2018): 353–401Google Scholar (showing that recent Supreme Court decisions in favor of religious liberty claimants did not, as some predicted, give rise to a hose of novel claims).

33 “According to this principle [praktische Konkordanz], constitutionally protected legal values must be harmonized with one another in the event of their conflict. One may not be realized at the total expense of the other. Both are to be preserved in creative tension with one another.” Kommers, Donald P., “German Constitutional Law: A Prologomenon,” Emory Law Journal 40, no. 3 (1991): 837–73, at 851Google Scholar.

34 Levin, “The Perils of Religious Liberty,” 32–33.

35 Garnett, Richard W., “Religious Accommodations and—and among—Civil Rights: Separation, Toleration, and Accommodation,” Southern California Law Review 88, no. 3 (2015): 493–510, at 501Google Scholar.

36 Martha Minow and Michael McConnell, “Respectfully Resolving Tensions between Religion, Law Is Possible,” Boston Globe, May 27, 2015, https://www.bostonglobe.com/opinion/2015/05/27/respectfully-resolving-tensions-between-religion-law-possible/IRgR30PYQYSgCDrp2USpBP/story.html.

37 Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015)

38 Id., 2607.

39 Lautsi and others v. Italy, 2011-III Eur. Ct. H.R. 1. For a penetrating analysis, see Marta Cartabia, “The Challenges of ‘New Rights’ and Militant Secularism,” in Glendon and Zacher, Universal Human Rights in a World of Diversity, 428–55.

40 European Center for Law and Justice, “Crucifix Case: Press Release of Professor Joseph Weiler,” press release, par. 5, https://eclj.org/crucifix-case-press-release-of-professor-joseph-weiler (last visited February 17, 2019).

41 European Center for Law and Justice, “Crucifix Case,” para. 6.

42 World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, ¶ 5, U.N. Doc. A/Conf.157/23 (July 12, 1993).