Who Is Afraid of Religious Freedom? The Right to Freedom of Religion and Belief and Its Critics

in Religion & Human Rights
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This article answers the claim that it is impossible to implement the right to religious freedom in a coherent, non-discriminatory way. It relies on the notions of “embedded evenhandedness” and “particular universalities” to build a two-pronged approach to freedom of religion. On the one hand, this approach accepts that history and culture provide the particular framework within which the right of freedom of religion is embedded. On the other, it recognizes that the claim of evenhandedness that is inbuilt in this right can overcome the limitations of a specific context and open it to new ways to understand and implement the right itself. This tension between the universal dimension of the right to freedom of religion and its particular implementations allows affirming the possibility of religious freedoms, whose different manifestations are better protected by collecting them under the umbrella of the same legal category than by apportioning them between different rights.

Who Is Afraid of Religious Freedom? The Right to Freedom of Religion and Belief and Its Critics

in Religion & Human Rights




Winnifred Fallers SullivanThe Impossibility of Religious Freedom (Princeton: Princeton University Press2011).


Steven Douglas SmithThe Rise and Decline of American Religious Freedom (Cambridge: Harvard University Press2014).


Marc O. DeGirolamiThe Tragedy of Religious Freedom (Cambridge: Harvard University Press2013).


Ibid. p. 119. See also Elizabeth Shakman Hurd Beyond Religious Freedom: The New Global Politics of Religion (Princeton: Princeton University Press 2015) at p. 121: ‘Religion is not just any category. It has history’.


Cavanaughsupra note 7 at p. 69.


See S.N. Balagangadhara“The Heathen in His Blindness . . .” Asia the West and the Dynamic of Religion (Leiden: Brill1994); Jakob De Roover Europe India and the Limits of Secularism (Oxford: Oxford University Press 2015); Prakash Shah ‘The Difference that Religion Makes: Transplanting Legal Ideas from the West to Japan and India’ Asian Journal of Comparative Law (August 2015) pp. 1–17.


See on this point Tomoko MasuzawaThe Invention of World Religions. Or How European Universalism Was Preserved in the Language of Pluralism (Chicago: Chicago University Press2005). See also Slavica Jakelić Collectivistic Religions. Religion Choice and Identity in Late Modernity (Farnham: Ashgate 2010) in particular pp. 31–45.


Shahsupra note 12 p. 4.


Shakman Hurdsupra note 8 p. 110.


Shakman Hurdsupra note 8 pp. 110–111.


See Jacob de RooverEurope India and the Limits of Secularism (Oxford: Oxford University Press2016); Saba Mahmood Religious Difference in a Secular Age: A Minority Report (Princeton: Princeton University Press 2016).


Ibid. 133–143.


Sullivansupra note 2 p. 3. See also Shakman Hurd supra note 9 pp. 201–203.


Ibid. p. 3.


Ibid. p. 8.


Ibid. p. 149.


Ibid. p. 158.


Steven D. SmithThe Rise and Decline of American Religious Freedom (Cambridge: Harvard University Press2014) pp. 159–60. The Supreme Court deemed that ‘the law school’s policy was presumptively constitutional as long as it was not intended to suppress the expression of ideas under a viewpoint-discriminatory basis’. As the purpose of the school nondiscrimination policy was ‘to prevent discrimination not to suppress views the Court found no free speech violation’ (p. 159).


See Smithibid. p. 160.


For a discussion of this point see Smithibid. pp. 161–163.


Ibid. p. 163.


Brian LeiterWhy Tolerate Religion? (Princeton: Princeton University Press2013).


Leitersupra note 41 p. 3.


Ibid. p. 3.


Ibid. p. 31. With the expression “insulation from evidence” Leiter means that ‘for all religions there are at least some beliefs central to the religion that . . . do not answer ultimately (or at the limit) to evidence and reasons as these are understood in other domains concerned with knowledge of the world’ (p. 34).


Ibid. p. 34. According to Leiter all religions contain beliefs that ‘issue in categorical demands on action—that is demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world offers up’.


Ibid. p. 52.


Ibid. p. 13.


Ibid. p. 64.


Ibid. p. 67.


Ibid. p. 93. Also Koppelman supra note 25 p. 134 is of the opinion that ‘conscience can generate exorbitant demands’.


Ibid. pp. 130–131. According to Leiter a State cannot but be led by a Vision of the Good. However ‘in principle there is no incompatibility between state endorsement of a Vision of the Good—religious or irreligious—and the demands of principled toleration. Principled toleration requires the state not to persecute or target for special burdens particular claims of conscience; it does not require the state to cease being a state—that is to cease promoting a Vision of the Good of the public good social welfare or human fulfillment’ (pp. 121–22).


See Bader supra note 56 p. 88.


José CasanovaReligion Law and the Politics of Human Rights p. 9 (online at <blogs.ssrc.org/tif/wp-content/uploads/2009/11/Talal-Asad.and.Abdullahi.An.Naim.in.conversation.pdf>): ‘Every universalism is particularistic’.


Adriano FabrisTeorEtica. Filosofia della relazione (Brescia: Morcelliana2009) p. 156.


Novaksupra note 57 p. 29.


Sullivansupra note 2 p. 3.

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