Introduction
One of the central pillars of liberal constitutional democracy originating in the Enlightenment has been adherence to institutional secularism.1 Institutional secularism, which is well exemplified by the U.S. Constitution’s First Amendment Establishment and Free Exercise Clauses, requires sufficient separation between state and religion to allow for a pluralistic polity in which various religious and non-religious conceptions of the good can be accommodated in ways that sustain peaceful coexistence. In the American case, the Establishment Clause prohibits the state from embracing any particular religion or from preferring any of them over others.2 At the same time, the Free Exercise Clause guarantees freedom of belief and the right of every person to practice the religion of her choice.3 Other liberal constitutional democracies draw the line somewhat differently, with some like France requiring stricter separation between the state and religion,4 and others like the United Kingdom enshrining an official state religion that does not operate in any way that curtails the religious liberties of the religiously-diverse citizenry.5 The key to maintaining institutional secularism consists of the state and the public sphere operating, in substance, independently from religion, while in the private sphere affording a maximum opportunity for religions to thrive and to coexist. Consistent with the values of the Enlightenment, ideally religions should be completely depoliticized and removed from the public sphere in exchange for being guaranteed a privileged status within the private sphere.6
Significantly, in the last decades of the twentieth century, there has been a dramatic “repoliticization” of religion in various parts of the world,7 and this has led to sustained and systematic attacks on institutional secularism. This new phenomenon has been complex and variegated. In some cases, such as in that of Iran, a secular regime has been replaced by a theocratic one;8 in others, such as that concerning Protestant fundamentalists in the United States, religious fervor has motivated strong political organization and deployment with notable policy successes but without thus far altering the basic constitutional order.9 The repoliticization of religion has taken different forms, ranging from radically progressive to radically conservative ones. One can think of the political praxis of Latin American Liberation Theologians, who integrated Catholic teaching and Marxism to advocate for social justice and the liberation of oppressed people.10 In many recent cases, however, one of the most salient and far-reaching consequences of the repoliticization of religion is its starkly anti-pluralist thrust, which is perhaps best exemplified by contemporary instances of religious nationalism and of religious populism. In both of these cases, what is crucial is not whether or not there is a significant or widespread commitment to religious belief or dogma, but instead the use of religion as the basis for forging identitarian bonds that are strongly exclusionary of those cast as the “Other.” In religious nationalism, national identity is defined above all by belonging to a single (usually majoritarian) religion—whether in terms of religious belief and practice or in terms of embracing the cultural mainstays associated with the religion in question. Moreover, this religious belonging implies that commitment to other (usually minoritarian) religions is contrary to, or erosive for, the unity or coherence of the imagined community bound together by its own distinct national identity. For example, by insisting that the United States be regarded above all as a Christian nation, one can readily convey to non-Christians that they do not belong or that at best they should be merely tolerated.11 On the other hand, religious populism—as all populism—consists in projecting a part as the whole when circumscribing “the people.”12 Accordingly, the people may be the ordinary citizens led by their charismatic leader against the “elites;” the native born versus the immigrants; a particular ethnic group against all others; and, in the case of religious populism, those belonging to one religion as opposed to all those who belong to other religions. Thus, for example, in a contemporary populist regime, such as that of Prime Minister Orban in Hungary, references to the country’s Christian heritage are directed against liberal elites cast as enemies of the Hungarian people because, among other reasons, they are accused of favoring and facilitating Muslim immigration into the country.13
To the extent that nationalism and populism resort to religion to establish markers of inclusion and of exclusion, they seek to stand institutional secularism associated with liberal constitutionalism on its head. However, religious nationalism and populism do not thereby necessarily altogether cast secularism away. Instead, they tend to reposition secularism by replacing institutional secularism with ideological secularism.14 Said differently, they portray the latter as a conception of the good among many, and nationalism and populism weigh in, for or against it, to better suit their anti-pluralist inclusionary and exclusionary agendas.15 Furthermore, religious nationalist and populist polities, though illiberal and anti-pluralist, are often committed to honoring human rights and fundamental constitutional rights in somewhat different and mostly more limited ways. Illiberal religious nationalist and populist polities tend to reinterpret those rights, however, in ways that suit their anti-pluralist agendas. Thus, for instance, Christian nationalists or populists may reinterpret freedom of religion rights in ways that disadvantage or exclude the rights asserted by Muslims.16 Also, polities dominated by certain religious traditionalists may promote versions of fundamental rights that may well exacerbate discrimination against women and sexual minorities.17
The purpose of this article is to examine systematically how nationalism and populism have recourse to the interplay between religion and secularism in its various forms for purposes of mounting a formidable challenge against liberal constitutionalism and one of its principal pillars, institutional secularism. As a consequence of the challenge in question, religious nationalism and religious populism seek to upend institutional secularism and to replace it with ideological secularism, which they may either attack as a foe to the religion they incorporate,18 or to invoke ideological secularism as an ally against a religion they target for exclusion or demotion.19 Furthermore, the article will also address how religious nationalism and religious populism aim at recasting fundamental rights to conform with their anti-pluralist aims.
This Article is divided into three parts. Part I concentrates on how nationalism and populism can, and have, appropriated religion to erect an illiberal and anti-pluralist constitutional architecture and discourse. Part II examines how religious nationalism and religious populism undermine institutional secularism and how they seek to replace it with, and make use of, ideological secularism to further their aims. Finally, Part III undertakes a review of a select number of salient cases and initiatives from various jurisdictions for purposes of illustrating how human rights and fundamental constitutional rights may be reinterpreted to fall in line with the essential dictates of religious nationalism or with those of religious populism.
I. Nationalist and Populist Appropriations of Religion for Their Anti-Pluralist Aims
Nationalism and populism are not inherently tied to religion. To the contrary—since the Enlightenment, nationalism has been mainly correlated with secularism. As a consequence of the decline of religiosity among European intellectuals during the nineteenth century, nationalism came to replace religion as the main binding force within a political community.20 The nation as a source of identity, solidarity, and common political purpose may be based on a shared history, ethnicity, culture, or language without any particular religion playing any defining role.21 Similarly, populism, with its characteristic embrace of a part of the whole population within the relevant polity as the People, need not invoke religion as it sets its divide between those it includes and those it excludes. Some populisms are thus ethnically based22 and others pit the common person against the elites and the expert class.23 Moreover, even when a particular religion may be tied to an instance of nationalism or populism, this may be largely incidental and have little influence on the shaping and execution of the common project within the polity involved. For example, contemporary France is a secular society where a vast majority of the citizenry happens to be Catholic, in contrast to Poland, which widely regards itself as a Catholic nation.24
To better understand the principal characteristics of the type of contemporary religious nationalism and populism that adhere to fundamental human and constitutional rights, while purporting to redefine them, it is necessary to briefly focus on the confluence of key factors that account for the implantation of the phenomenon under consideration. In essence, three developments have converged to bring about the current predicament: the revitalization and “repoliticization” of religion;25 the resurgence of nationalism after the fall of the Soviet Union;26 and further recourse to nationalism coupled with the widespread embrace of populism as a reaction against transnational governance regarded as a major threat against democratic rule and against globalization with its propensity to exacerbate huge inequalities in wealth and to threaten traditional values and cultural bonds.27
A. The “Repoliticization” of Religion
The ideal of institutional secularism is difficult to approximate even under the most favorable circumstances but becomes increasingly problematic as the modern welfare state encroaches on what traditionally pertained to the private sphere. A primary example is provided by education. So long as education remains exclusively within the private sphere, parents should have no trouble integrating the religion of their choice within the schooling of their children. Once the state becomes the principal educator through its public school system, however, both inclusion of religion within the curriculum and its exclusion from it are apt to raise serious doubts about institutional secularism’s potential for neutrality.28 Although the blurring of the boundaries between the public and private spheres certainly increases the burdens on institutional secularism, what poses by far the greatest threat to the latter’s legitimacy and viability is the major systemic reentry of religion within the political sphere of many different countries throughout the world, starting in the 1980s. This new development consists in the “deprivatization” of religion29 and involves two interrelated processes: the “repoliticization of the private religious and moral spheres;” and the “renormativization of the public economic and political spheres.”30 As already noted, in some cases, such as that of Iran, the repoliticization in question has led to the installment of a theocracy where religious law is meant to rule.31 Theocracies, even constitutional ones like that in Iran,32 and regimes dominated by fundamentalist religion33 subsume all governance and rights to religious precepts, institutions, and authorities, hence amounting to a negation of all that liberal constitutionalism calls for. Because of this, theocratic regimes will not be further discussed in this Article as they do not directly bear on the trends and problems examined in what follows. Instead, the focus will be on repoliticized religion that seeks to change the constitution, politics, law, or the interpretation of fundamental rights, but that does not come close to overtaking the polity as the 1979 Iranian Revolution and its Constitution did. Moreover, the repoliticized religion in question may take several different forms. This includes the one propagated by the type of fundamentalist Protestantism politically active in the United States that was referred to above, to the extent that it operates and seeks changes within the existing constitutional order. Viewed from a moral, political, and constitutional standpoint, American Protestant fundamentalism does not openly seek to overthrow or replace the constitutional or political order within the United States. Instead, it endeavors to fight for laws and to advocate for constitutional interpretations that accord with its religious creeds and its understanding of biblically prescribed morality.34 Thus, for example, Protestant fundamentalists have used laws in ways that undermine women’s equality,35 and fought for laws and constitutional decisions against rights to abortion,36 and against the rights of sexual minorities.37 More generally, Protestant fundamentalists have attacked both institutional and ideological secularism which they have characterized as the “religion” of “secular humanism.”38
Another brand of repoliticized religion, championed in the name of Catholicism by Pope Benedict XVI, relies on the assumption that faith coincides with the dictates of universal reason, which are embodied in natural law, and that accordingly its normative prescriptions can be equally derived from faith or from reason.39 In this light, the “right use of reason in legal arguments leads to the same conclusions as theological reasoning.”40 Moreover, consistent with this, in sharp contrast to Catholic-sanctioned universally-valid law and morality, ideological secularism amounts to a “dictatorship of relativism.”41 This perceived relativism is linked to a multitude of evils that conspire to deprive human life of all meaning and to reduce human beings to depraved hedonism or to mere calculating mutual exploitation.42 Repoliticized religion can also be enlisted to erode institutional secularism without necessarily fostering intolerance against ideological secularism. In this context, religion is to conspicuously reenter the public sphere as inextricably linked to the culture of the polity or as an essential attribute of such culture. Examples of religion figuring as culture include requiring the display of the crucifix in public school classrooms in constitutionally secular Italy,43 and inclusion of the Christian crèche, or nativity scene, in a holiday municipal grounds display in the United States.44 The culturalization of religion need not be on its face hostile to ideological secularism. It does, however, challenge the principle of separation between Church and State. The premise that states must recognize that the national religious inheritance is not just one among other denominations, but rather an element of civic cohesion that cements identitarian bonds of national solidarity. What follows is that the historical national religion should enjoy a preferential treatment, while other denominations should at best be tolerated. This is likely to set the premises for the marginalization of non-Christian cultures, thus lowering the protection of religious freedom.45 It is also quite plausible that in the course of religion being spread as culture throughout the public sphere, it could also become enlisted in a campaign against a purely secular worldview.46 In addition, religion can become essential in the very definition of peoplehood. This is the case in Israel, where Judaism, the religion of a single people, has become the national religion as the country’s Declaration of Independence proclaimed it to be a “Jewish and democratic” state.47 Significantly, Israeli Jews are divided over whether the country ought to officially adopt the religion and the laws it prescribes to rule over the Jewish population as the ultra-Orthodox would wish;48 or whether Judaism should be incorporated mainly as culture and tradition while maintaining Western secular and democratic laws and values as Israel’s secular Jews prefer.49
In sum, the repoliticization of religion can take many forms, involve different kinds of religion, and make use of the religion at stake in different ways. These range from imposing religious prescriptions through law and public morality—including some version or selection of the religious norms in question, depending on the objectives of the proponents involved with the propagation of religion in the political arena—to the use of religion for purely identitarian purposes as a vehicle of cultural inclusion and/or exclusion in relation to the polity’s political and public spheres. With these nuances in mind, we now turn to a brief examination of contemporary nationalism and populism, which will better enable us to understand how the latter are apt to appeal to religion and to make use of it in those cases in which they take on a religious bent.
B. Nationalism and Religion
Nationalism, in Ernest Gellner’s notable definition, is the “principle[] which holds that the political and the national unit should be congruent.”50 Moreover, in the context of modern constitutional democracies, it is the people that gives itself a constitution meant to be implemented within a nation-state.51 Although in the vernacular the “people” and the “nation” are often invoked interchangeably, the two are conceptually distinct even when their respective referents are fully coextensive. The people is the aggregate of persons that gives itself a constitution, by which it agrees to be governed within a specified state.52 The nation, on the other hand, in the words of Benedict Anderson, is an imagined community53 that, as mentioned above, is meant to provide a common identity, a common heritage, and a common basis for the maintenance of bonds of solidarity.54 Unlike a family or a tribe that functions collectively on the basis of individual acquaintance and personal relationships, the modern nation-state creates a political order in which members of the polity primarily relate to one another as strangers.55 Accordingly, what binds together these strangers is an imagined construct around which they can all rally. Nationalism is thus intrinsically linked to national identity and consists in affirmation and internalization of, as well as commitment to, the latter.
Nationalism has both an inclusive and an exclusive facet. Each nation has a distinct national identity, and solidarity within one’s own nation requires subscribing to the relevant identity to the exclusion of all others.56 There is, however, an important distinction between inclusive and inclusionary, on the one hand, and exclusive and exclusionary, on the other. For example, to the extent that American national identity requires adherence to, and respect for, the U.S. Constitution, it is inclusionary. It leaves the door open for any legal immigrant to eventually obtain citizenship and to become absorbed into the American nation by swearing allegiance to the country’s Constitution.57 In contrast, a national identity that relies exclusively on ethnic belonging, such that members of any other ethnic group cannot be included within the nation, no matter how long or deeply rooted they may be within the relevant polity, would plainly be thoroughly exclusionary.58
Religious nationalism seems at first paradoxical given that, as noted above, nationalism has historically been associated with secularism.59 In the wake of the Enlightenment, secularism dethroned religion for purposes of delimiting and sustaining the relevant community that could be marshalled into a political unit. Accordingly, the nation as an imagined community that provides a common identity, shared values, and a congruent set of objectives, loomed as well-poised to fill the growing void stemming from the disenchantment with religion.60 Although secular nationalism may flourish by occupying a space left open by the retreat of religion, it is nonetheless unlikely that this would result in a complete purge of religion from its former sphere of influence. Indeed, for all its mythical and imaginary dimensions, national identity must incorporate—albeit in an idealized, transformed, or redeployed iteration61—aspects of the history, tradition, and culture of those it seeks to rally into a political unit. Almost inevitably, within the history, tradition, and culture at stake, aspects of the relevant religion will remain embedded. Examples abound, extending from Sunday being the day of rest in the most secular of traditionally Christian countries to Weber’s linking the “spirit” of capitalism to Protestant ethics.62 However, religious symbols, elements, or fragments that are embedded in secular national identity typically figure as displaced, detached, or reframed in relation to their position in their religion of origin. And because of this, the religious-based materials in question may be regarded on a par with non-religious components of the pertinent imagined community. Thus, for example, Vercingetorix, the pre-Christian Gallic king, is as much part of French national identity as is Joan of Arc, who was reported to have been directed by God to lead the French in battle against the English on the way to the decisive victory that put an end to the Hundred Years’ War.63 In short, in the context of the present analysis, the mere fact that an element or aspect of a secular national identity is issued from religion ought not weigh against any otherwise-reasoned conclusion that a particular imagined community is representative of secular nationalism.
Twentieth and twenty-first century religious nationalism emerged because of disappointment with secular nationalism, combined with the repoliticization of religion and the spread of fundamentalism.64 Instances of contemporary religious nationalism have arisen in the context of various religions, including Christianity, Islam, Judaism, and Hinduism.65 From a functional standpoint, the religious component of religious nationalism differs, at times quite substantially, from one setting to the next. Nevertheless, in a key departure from secular nationalism, religious nationalism imagines and incorporates religion (or any of the latter’s attributes it highlights) qua religion. For example, certain Christian conservatives envision the United States as a Christian nation founded by God and granted a privileged position in the world’s history,66 and some Christian denominations have even portrayed the United States as the New Jerusalem.67 Although this particular brand of American nationalism is highly contested, if it were to become predominant, it would require combatting pluralism and regarding secularists as sacrilegious and therefore, in essence, un-American.68
How religion fits within religious nationalism—and what it calls for in terms of the constitution, the laws, policies, civil society, and the state—varies in terms of both the religion (or one among many interpretations of that religion) and of those among its particular elements that figure in the pertinent national identity and in the life of the corresponding polity. Where the religion itself becomes all-encompassing, as is the case in theocracies, then, as pointed out above in discussing contemporary Iran,69 it does not allow for any rights to interpret that religion unless those interpretations happen to be sanctioned by the national religion as understood by the clergy in power. Where religious nationalism incorporates the ruling religion in a less comprehensive or less unified manner, however, religion is bound to have an important impact on the polity, but how much and how contested that impact might be will depend on several variables. The case of Israel is instructive in this regard. Israel is a Jewish nation-state, but what “Jewish” means to Israelis is a hotly disputed matter. Ultra-Orthodox Jews want the country ruled according to religious law, the halacha, and argue that since halacha provides a comprehensive legal system, the country does not need a constitution.70 Secular Israeli Jews, in contrast, are likely to acknowledge the biblical origin of the connection between Jews and the land of Israel, celebrate certain religious holidays like Passover marking the exit of the Jews from slavery in Ancient Egypt in a more nationalistic and cultural, rather than religious, way, but otherwise aspire to enjoy the way of life and the rights typical of Western liberal constitutional democracies.71 At present, the conflict among these two conceptions of “Jewish” is unresolved, but some of the country’s laws, such as the 1961 law against farming pork or various laws against public transportation on the Sabbath,72 only make sense in reference to the religious proscriptions of Judaism. In addition to the religion component in religious nationalism being often contested and imprecisely delimited, there are many cases in which the content of a religious prescription internalized within the operating national identity happens to be virtually indistinguishable from a similar prescription issued from a secular standpoint. Thus, for example, Catholic social solidarity principles commanding concern for the welfare of the poor correspond to those espoused by secular liberal egalitarians.73 In the latter case, whether the asserted principle issues from a religious rather than a secular perspective depends on context. In a Catholic nation, relating the welfare of the poor to the teachings of Jesus would seem much more natural than in a secular nation with a vast array of different religious traditions.74
In examining what fuels religious nationalism and what it projects unto the polity it targets, a basic distinction can be drawn between cases where religion seeks to frame nationalism and cases where nationalism aims to appropriate, and in some measure, incorporate religion. U.S. Christian fundamentalists, Islamist adherents to the Muslim Brotherhood, and Ultra-Orthodox Jews in Israel all draw on their religiosity and their paramount commitment to religious observance and practice in their struggle to get their respective nation to embrace their religion, its precepts and values, and to impose them on the polity as a whole.75 In contrast, in a country such as communist Poland in the 1980s, it was nationalism standing against anti-nationalist and anti-religious Soviet domination that enlisted the country’s Catholic heritage to forge a path towards an autonomous post-communist future.76 Whereas contemporary Poland harbors a large majority of practicing Catholics,77 several other former communist countries—such as Russia, Bulgaria, and Hungary—emerge as clear examples of nationalism appropriating religion in polities lacking widespread religious fervor.78
It seems obvious that issues of religiosity, religious practice, and observance are much more likely to arise when religion turns to nationalism than when nationalism embraces religion. From our perspective, what is crucial is to focus on the distinct ways in which religious nationalism promotes anti-pluralistic and exclusionary agendas. Even where religion is sought to be nationalized, the result would not have to be necessarily exclusionary. Indeed, for a nationalized religion to not be exclusionary it would have to be, on the whole, compatible with freedom of and from religion for all within the polity. Nevertheless, in a large number of cases, the nationalist turn to religion goes hand-in-hand with an anti-pluralist agenda. Typically, from the internal perspective of a particular religion, that religion is the true and the right one (or at least truer and more right). Accordingly, by turning to religion qua religion as opposed to religion qua (one among many components of) culture, the nationalist is better positioned to tout her appropriated religion as hierarchically privileged and beyond discussion.79
Besides religiosity, religious practice, and observance, some of the other most salient aspects of religion that have been incorporated into nationalism include religious morals, religious values and ways of life, religious customs, religious symbols, and various religious cultural attributes. Both the religious who turn to nationalism and the nationalists who appeal to religion are bound to be selective. Short of a theocracy, the former would have to aim for the most possible situation within constitutional limitations. Thus, if fundamentalist Protestants became the political majority in the United States while lacking the means to amend the U.S. Constitution, they could enact part, but not all, of their agenda on their way to their version of a Christian America. Because of the freedom of speech and freedom of religion rights enshrined in the First Amendment, the fundamentalists would thus have to tolerate views and religious beliefs and practices that their religion might instruct them to ban. On the other hand, the nationalists who turn to religion are most likely to be selective in their appropriations as some aspects of religion would bolster their nationalist aims while others would be indifferent or even at times counterproductive. For example, a nationalist with libertarian capitalist and patriarchal tendencies may turn to Catholicism to nationalize his campaign against abortion and immigration to bolster the traditional patriarchal family while systematically ignoring Catholic social welfare principles.
Although both kinds of religious nationalism may have to be selective to adapt to political realities, they are otherwise likely to differ. The religious who turn to nationalism would most logically seem prompted to exercise selectivity consistent with their religion’s demands. Thus, they may prioritize what is more important within their religion over what might be less so. For example, a religion that prescribes an absolute ban on abortion while deeming contraception as sinful, but lesser evil, might well endorse a national law that criminalizes abortion but affords legal protection to contraception. In marked contrast, the nationalists who seek to incorporate religion are most likely to choose religious morals or symbols or cultural mainstays and to appropriate within each of these those elements that better fit within their nationalistic vision and that are most likely to advance its aims. In other words, nationalists who appeal to religion are prone to being opportunistic.
This kind of opportunism can be briefly illustrated by reference to Hungary’s official embrace of Christianity as put forth in the Preamble of its 2011 Constitution, in spite of it being among the least religious countries in present-day Europe.80 The Preamble’s first proclamation in the name of the Hungarian nation states: “We are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe one thousand years ago.”81 To this, the Preamble adds that “[w]e recognize the role of Christianity in preserving nationhood” and that “we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation. We do not recognize the suspension of our historical constitution due to foreign occupations.”82 Three salient points emerge from the above-quoted passages: the connection between Hungary and Christian Europe, Hungary as a Christian nation, and a millennial Christian constitutional history interrupted by foreign occupations that are nullified within the ambit of the nationally-embraced imagined community. Two of those interruptions are crucial for understanding how Christianity figures in present-day Hungarian nationalism. The first of these is the Ottoman Empire’s conquest and occupation of Hungary from 1541 until 1699,83 while the second is Hungary’s communist regime under Soviet control from 1949 until 1989, marked by the adoption of Hungary’s 1949 Constitution, which was almost a mirror image of its Soviet counterpart.84 Whereas the idea of a Christian Europe is a transnational one and one that Orban’s Hungary shares with Poland,85 it also has an internal nationalistic dimension with an exclusionary focus in linking the Ottoman occupation with contemporary anti-Muslim animus. In countering and harshly treating Syrian refugees who were seeking entry into Hungary, Orban explicitly referred to the Ottoman invasion to justify systematic exclusion of Muslims.86 Moreover, Orban’s harsh anti-refugee stance was not only avowedly anti-Muslim, but also self-consciously defended as pro-Christian. As one commentator put it, “Orban’s embrace of Christian nationalism is a relatively recent turn for a once-avowed atheist. But it is in keeping with Hungary’s political present, where critics decry Orban’s mixture of strong-man demagoguery and xenophobic rhetoric.”87 To this must be added Orban’s appeal to Christian values in support of his campaign against Western secular liberalism and cosmopolitanism, which he has personalized by demonizing George Soros, an American philanthropist who happens to be a Jewish Holocaust survivor of Hungarian origin.88
Matteo Salvini, the former Italian Defense Minister and leader of the right-wing, xenophobic League party, provides another telling example of the mobilization of the majority religion in the service of an anti-pluralist agenda. Arguing for harsh anti-immigration measures, Salvini has systematically portrayed himself as the last bastion of Christianity against the “Islamization of the West.”89 Ironically, in doing so Salvini has been directly challenging the Church’s social doctrine and the Pope’s strong and well-publicized humanitarian stance vis-à-vis migrants.90 The Italian Conference of Bishops has repeatedly accused him of instrumentally using religion to pursue an openly un-Catholic agenda.91 Salvini, a self-proclaimed devout Catholic despite openly ignoring Catholic teachings in his personal life, has not only consistently exhibited Catholic religious symbols—such as crucifixes and rosaries—during political rallies, but also associated religion with his political victories.92 Thus, for example, after the approval by the Italian Parliament of one of the harshest anti-immigration measures adopted upon his initiative, he tweeted his thanks to the Virgin Mary.93 And, after his party’s success in the European elections of 2019, he reiterated his thanks to “the immaculate heart of Mary,” for “helping Italy and Europe to find again hope, pride, roots, jobs and security.”94
Nationalism can unify a political community by cementing strong bonds of solidarity fueled by intense emotional sentiments leading to patriotic fervor. Patriotism, like nationalism, can be inclusionary or exclusionary, and both can be intensified and further consolidated by linking themselves with religion and religious elements. As discussed above, not all linkages between nationalism and religion are alike. For our purposes, the combinations between nationalism and religion that aim at exclusionary and anti-pluralistic attitudes and policies are the ones that deserve further attention because of their potential in the struggle against secularism and Enlightenment-based understandings of fundamental rights.
Nationalism is conceptually distinct from populism although, as will be further explored below,95 the two can figure side by side in animating the public life of contemporary polities. Moreover, populism, like nationalism, can link itself to religion. In order to be in a better position to understand how these respective links to religion compare, we now turn to an examination of the conditions that result in a nexus between populism and religion.
C. Populism and Religion
Populism, like nationalism, is not inherently religious. Moreover, populism is conceptually distinct from nationalism, although the two can coexist and overlap within the same polity. As already mentioned, populism is characterized by its conception of politics as dedicated to the realization of the will of the people, and by its designation of “the people” as including only a part of the whole within the relevant political unit.96 Most often, populism pits the average citizens whom it enshrines as “the people” against the elites whom it casts as the (internal) enemies of the people.97 In some instances, these internal enemies are linked with, or aggregated to, external enemies regarded as threatening the well-being or the political agenda of those recognized as the people within their polity.98 According to the populist ideal, the people are led by a charismatic leader who embodies their political will and with whom they fully identify.99 Together with their leader, the people are supposed to form a moral community with the collective goal of fighting those cast as their enemies in order to redeem the polity in a messianic-type enterprise, leading either to the recovery of some lost golden past or to the removal of extrinsic obstacles that block the path toward an exalted forthcoming destiny.100
There is an important distinction between right-wing and left-wing populism.101 The latter typically tracks a class struggle model, figuring the working class as “the people” pitted against political and economic elites cast as the enemies.102 Accordingly, left-wing populism may well not be nationalistic and it may readily promote transnational coordination between various similarly-situated peoples fighting against various groups regarded as comparatively oppressive elites. Right-wing populism, on the other hand, whether ethnically or religiously grounded, is very likely to be conjoined to nationalism. But even if most right-wing populism tends to be nationalist, not all nationalism need be populist. Indeed, some instances of nationalism may be inclusive of all within the polity, whether they be elites or part of the common citizenry. Thus, for example, French republican nationalism is not populist, as it includes all French citizens as part of an undivided nation within a united polity.103 In contrast, in deploying his populist vision of American nationalism, Donald Trump has repeatedly attacked those he portrays as internal enemies. These attacks have included calling most of the U.S. press the “enemies of the people,”104 and Democrats as “un-American.”105
The contemporary nexus between populism and religion is essentially twofold and based on a distinction between “politicized religion” and “sacralized politics.”106 In the first of these situations, the identity, agenda, and objectives of the people are informed by religion. Religion may be invoked to delimit religious insiders versus religious outsiders within the same polity. Thus, on some views, Jews are the people of Israel, Hindus the people of India, and Muslim Malays the people of Malaysia.107 Religion may also be called upon to sever the people who may belong to diverse religions and non-religious ideologies from internal and/or external outsiders identified with a particular religion regarded as inimical to the relevant populist project. The prime example here is that of populists in Europe, who regard Muslims within their borders as well as would-be Muslim immigrants as threatening outsiders.108 Finally, within a religiously homogeneous polity, religion can be used as a wedge between more conforming religious insiders and less conforming (or non-conforming) internal outsiders. An example of this is provided by the populist rhetoric of a patriarch of the Greek Orthodox Church who linked Greek nationalism to those who adhered to Orthodoxy and Hellenism against those he identified as supporters of the contemporaneous ruling Greek government, which he chastised as being “atheist, modernizing, intellectualist and repressive.”109
Unlike in politicized religion, where religion infuses politics, in sacralized politics the key feature is an analogy or resemblance between politics and religion.110 In this modern phenomenon, the people represent the good, its enemies personify evil, and the charismatic leader figures as a pastor leading his flock to salvation in a to-be-recovered or yet-to-be reached promised land.111 Moreover, although sacralized politics may be practiced much like a religion, it may well operate without reference to religion and without incorporation of any religious symbols or attributes. Hugo Chávez was thus a consummate practitioner of sacralized populism in Venezuela, but his fight was a secular one against those he called the oligarchs, while his inspiration came from the great nineteenth-century liberator of the Americas, Simón Bolívar.112 In other cases, however, sacralized politics can invoke religion or religious elements in support of its political aims. This is the case in Orbán’s populist and nationalist agenda in Hungary, as he invokes Christianity both against the external outsider enemies, the Muslims, and against the internal enemies, the secular Hungarian elites.113
Sacralized politics frames populism as a religious pursuit, but to the extent that it is separated from religion itself, as it was in the case of Venezuela under Chavez, it remains peripheral to the principal aims of this Article. Purely secular populism is most likely illiberal and anti-pluralist, but it does not resort to religion itself in its dealings with fundamental rights. In contrast, populism as politicized religion, as well as the subset of populism as sacralized politics that happens to have recourse to religion, does have recourse to religion in its approach to fundamental rights. Moreover, the nature and scope of uses of religion in relation to populism are potentially equivalent to those we have identified in relation to nationalism.114 For present purposes, the principal difference between religion within nationalism and populism is linked to the fact that populism, by its nature, is prone to being more vehemently inclusionary and exclusionary than nationalism. Indeed, all populisms rise against both internal and external enemies, whereas certain nationalisms may be internally inclusive and, for the most part, aspirational. Additionally, although nationalism must nurture the differentiation between nations, it need not treat foreign nations as enemies.
In the end, how inclusionary or exclusionary a particular religious nationalism or religious populism may happen to be can only be assessed when placing the relevant polity in context. We will be in a position to illustrate this in the course of discussing the cases and initiatives that will be the focus of Part III below. Before turning to these particulars, however, it is necessary to briefly examine the dynamic between institutional and ideological secularism, which figures prominently in the illiberal and anti-pluralistic agenda launched by religious nationalists and religious pluralists.
II. The Dynamic Between Institutional and Ideological Secularism
As indicated above, there is an important distinction between institutional and ideological secularism, which is implicated in the initiatives undertaken by religious nationalism and religious populism against the liberal secular pluralistic constitutional ethos.115 As also mentioned, the initiatives in question tend to invoke ideological secularism against its institutional counterpart.116 Institutional secularism is an ideal that can at best be roughly approximated in its quest to depoliticize religion by expelling it from the public sphere while privileging it in the private sphere.117 The ideal in question is rooted in the Enlightenment distinction between Faith and Reason, with the latter being destined to rule the public sphere to the exclusion of the former.118 Institutional secularism has been deployed in various modern constitutional democracies and has yielded six major different models of regulation of the relation between religion and the state.119 Despite their deep divergences, these six models are unified by their adherence to two crucial common aspirations. These are commitment to religious pluralism (understood as inclusive of non-religious conceptions of the good) and to the related principle that in the affairs of the state and in public policy, no religion shall be considered or treated as the possessor of the truth. In other words, each religion is entitled to comport itself as the sole possessor of the truth within its communal life carried out in the private sphere, whereas no religion is entitled to insist within the public sphere on institutionalization of its own truth, so long as the latter is contested by proponents of other religions and of non-religious perspectives.
In the past decades, Western secularism and its implementations have been subjected to a broad range of critiques from different perspectives.120 In this article, we do not deal with such critiques. We recognize that none of the constitutional models of managing the relationship between religion and the state actually meet the ideal of the Enlightenment, but they nonetheless all remain consistent with the two principal aspirations embedded in that ideal. Accordingly, there is a necessary nexus between liberal constitutionalism and secularism as embodied in the commitment to pluralism through freedom of speech, freedom of religion, and freedom of conscience provisions. In other words, liberal constitutionalism incorporates a minimum of secular substantive values that are necessary—albeit not sufficient—to ensure the coexistence of different religious and non-religious conceptions of the good within a polity. In what follows, we focus on attacks on constitutional secularism in the context of liberal constitutionalism by nationalist and populist actors, who invoke religion to undermine pluralism.
These attacks are essentially twofold. The first of these assails institutional secularism’s very aspiration to neutrality by claiming that any attempt at implementation is bound to yield an anti-religious outcome. As the public sphere expands and becomes more encroaching, and, for example, state-run public education becomes prevalent, the teachings of religion tend to be set aside, suppressed, or countered in increasingly enlarged areas of social and political interaction. This may be regarded as an exercise in neutrality by state actors but experienced as anti-religious by those whose religious commitments or practices are being thwarted. This line of attack has a long history in the United States that includes the famous attempt to ban the teaching of evolutionary theory in public schools in the 1920s,121 and to require the teaching of creationism alongside evolutionary theory in science classes in the 1980s.122 In both these cases, science is treated by certain proponents of Christianity as an integral part of secularist ideology. Moreover, in the case relating to creationism, the distinction between science and religion is sought to be completely blurred. Indeed, by insisting that both creationism and the theory of evolution should be taught side-by-side in science classes,123 the proponents of the teaching of creationism do away with the fact that the theory of evolution is subject to falsification within the strictures of scientific methodology, whereas creationism is dependent on religious revelation or metaphysical speculation. Remarkably, the proponents of teaching creationism in science classes have couched their request in free speech terms,124 as if the schools were teaching one scientific theory to the exclusion of another or one ideological set of beliefs to the exclusion of a competing one. From an institutional secularist standpoint, science and religion are distinct subjects that may be taught separately in schools, just as history and literature are. Also, scientific vindication of the theory of evolution is by no means incompatible with metaphysical commitment to creationism or intelligent design. Only if one subscribes to a literal interpretation of the biblical account of God’s creation of the world in seven days125 does the theory of evolution appear to be in direct contradiction with biblical teachings.
The second major line of attack against institutional secularism is premised on the claim that the latter amounts to a convenient screen for statewide impositions of ideological secularism. One striking example of this kind of attack is provided in lawsuits brought by fundamentalist Protestant parents against their children’s public schools, alleging violations of the Establishment Clause.126 The parents claimed that the assigned reading in their children’s literature class of a text that characterized a tsunami as resulting from the mysterious forces of nature amounted to an unconstitutional state imposition of the religion of “secular humanism.”127 In the fundamentalist Protestant parents’ view, God is the cause behind all natural phenomena, and therefore, the implication that nature acts by itself amounts to a teaching by a religion that contradicts the truth of the transcendent Christian God. In other words, the school may be pretending to comply with institutional secularism as it is embodied in the Establishment Clause, but it is, in fact, imposing the religion of “secular humanism,” which coincides with ideological secularism, and which contradicts fundamentalist Protestant theology. Although the courts rejected the parents’ arguments and found no violations of the Establishment Clause,128 conceptually, in these cases, the distinction between institutional and ideological secularism seems to depend on an interpretive nuance. If the reference to the force of nature in the relevant literary text is taken as being agnostic on the question of whether or not God is behind every natural phenomenon, then the public-school teaching at stake would seem fully consistent with institutional secularism. On the other hand, if the reference in question is understood as implying a negation of divine intervention in natural phenomena, then the text advances an ideological secular perspective. Apparently, for the suing parents, the mere omission of an attribution of divine agency amounted to a denial of a cardinal Christian truth.
The realization that no actual deployment of institutional secularism can achieve complete neutrality or confine the public sphere to a consensus-based rule of reason facilitates attacks against secularism by religious nationalists and populists. From a constitutional standpoint, even if one were to accept that neutrality should be set aside, those with secular values should enjoy the same freedom of, and from, religion, as all proponents of religious views within society. Consistent with this, democratic constitutionalism should accord all secular and non-secular conceptions of the good, equal rights of accommodation, and inclusion within the polity. In one area, however, secularism should enjoy priority over its religious counterparts. That area encompasses the freedom of scientific research and the teaching of science in state-operated schools. Moreover, the reason for this priority is that, in the bulk of contemporary constitutional democracies, the vast majority of proponents of religious world views rely on scientific research and on the practical applications of that scientific research. Therefore, opposition to science on religious grounds would not defy logic, but would amount to what philosophers call a “performative contradiction.”129 A religion that accepts and makes use of science in the areas of health, communication, transportation, etc., engages in a performative contradiction when it seeks to prevent, or to interfere with, the pursuit of science by proponents of other conceptions of the good, such as secularism. In other words, the proponent of the religion that wishes to suppress science in part ought to realize that he cannot have it both ways—e.g., prohibit the teaching of evolutionary theory in public schools while benefiting from the latest medical advances in public hospitals—once he understands that the realm of scientific discovery and application has a unity and integrity of its own and, in a large number of cases, that his own religion requires recourse to some or all available medical means to save or prolong life.130 As a consequence of this, secularism’s pro-science and certain religions’ partially anti-science stances are not equivalent, and the latter ought to give way to the former.131
To the extent that religions partially accept, and benefit from, science, the constitutional pluralist ethos requires according priority to freedom of scientific inquiry in all its multifaceted dimensions. Moreover, these two fundamental requirements regarding secularism—namely, equal consideration and freedom of scientific inquiry—should furnish criteria to determine whether or not any particular reframing of fundamental rights from the standpoint of religious nationalism or pluralism is consistent with the minimum requirements of contemporary democratic constitutionalism. In short, any religious nationalist or populist understanding or reformulation of a fundamental right that fails to give the equal consideration due to secularism or to the integrity of science would exceed the acceptable bounds set by contemporary democratic constitutionalism.
III. Illiberal and Anti-Pluralist Recourses to Religion Congruent with Nationalist and Populist Reshaping of Fundamental Rights
In what follows, we examine four different contemporary initiatives involving concerted recourse to religion for purposes of weakening or undermining institutional secularism, or at least one of its two critical mainstays—namely, pluralism and forbidding any contested religious truth from commanding the state or constraining the public sphere. As will become obvious, some of these initiatives are plainly nationalistic, such as the one involving tying Hinduism to secularism in India. Others, however, such as the state display of Christian symbols in public schools in a constitutionally secular state such as Italy, or the linking of Christianity, reason, and natural law—as Mike Pompeo’s “Commission on Unalienable Rights” does in the United States—are obviously not inherently nationalistic or populistic. Indeed, Pope Benedict’s equating the precepts issuing from Catholic faith and reason as the common foundation of natural law, to which we alluded above,132 has no inherent connection to either nationalism or populism. Quite to the contrary, it seems fair to understand the former Pope as promoting what he regards as a universally valid morality issuing from the true religion and the proper use of reason, which yields a universally valid natural law that remains immutable, regardless of any nationalist or populist aspirations. Nevertheless, because of the broader socio-political context in which they are inserted, both Italy’s use of religious symbols and the Pompeo unalienable rights initiative in the United States emerge as thoroughly nationalist, as we shall detail below. More generally, as we hope will become manifest in the course of what follows, all four of the initiatives that we will now discuss illustrate many of the ways in which religious nationalism and populism did or could reshape liberal constitutional rights in order to render them less amenable to pluralism and more apt to impose contestable, asserted truths on those who would otherwise reject them.
A. Reshaping Secularism as Religious Majoritarianism: The Case of India
India constitutes an example of a system where constitutional secularism has undergone a systematic attack by a nationalist party, the Hindu Right, which has sought to redefine its significance to suit its majoritarian political agenda—that is, the installation of religion and culture as primary attributes of nationalism and citizenship identity.133
Indian secularism differs from its Western counterparts in two fundamental ways. First, it does not pursue the ideal of strict separation and neutrality, but, rather, a “principled distance” between religion and the state, which entitles the latter to robustly intervene in religious matters, particularly in the affairs of the country’s majority religion. Second, Indian secularism, by striking a balance between individual religious rights and the claims of religious communities, does not entail the absolute confinement of religion in the private sphere.134 This resonates with Hinduism’s emphasis on religious practices rather than on religious belief: because practices have a fundamental collective dimension, their preeminence naturally entails the valorization of religious communities.135 While the distinctive characters of Indian secularism are crucial to understand its implementations and applications, they should not obscure the fact that the country adopted a secular constitution for reasons that are fully comparable to those that prompted Western countries, such as France and the United States, to also enshrine secularism in their constitutions. As Rajeev Bhargava explains, “secularism, anywhere in the world, means a separation of organized religion from organized political power inspired by a specific set of values.”136 As we have seen in the preceding pages, these values boil down to protecting individuals from religious oppression, ensuring that they enjoy freedom of religion and conscience, as well as setting the conditions for the peaceful coexistence of different conceptions of the good within the polity. Different systems may “select different elements from the stock of values that give separation its point . . . [or] place different weights on the same values.”137 In all cases, however, the aim is to ensure the freedom and equality of all citizens in a pluralistic polity.
The Hindu Right, which emerged in the nineteenth century as a nationalist force relying on Hindu culture to oppose colonialism, has systematically pushed to “redefine the meaning and parameters of the various components of secularism . . . .”138 To this end, the Hindu Right has put forward three lines of reasoning. First, it challenges the special protection provided to religious minorities on the ground that this protection contravenes the principle of equality. This constitutes a direct blow to two fundamental tenets of the Indian Constitution: “contextual secularism,” which rejects the notion of strict neutrality and equidistance; and a substantive notion of equality. The Hindu Right argues that the traditional accommodation of religious minorities (including through personal laws) violates formal equality and the “true spirit” of secularism, pushing, as Ratna Kapur explains, to establish “an unmodified majoritarianism whereby the majority Hindu community becomes the norm against which all others are to be judged and treated.”139 The second line of argument put forward by the Hindu Right relies on the construction of Hinduism as the only religion which is compatible with secularism. Unlike universal religions, such as Islam and Christianity, that rely on proselytism, Hinduism is supposedly committed to secular values, such as religious freedom and tolerance. Hence, “only Hindus are truly secular [citizens].”140
Finally, the Hindu Right has sought to redefine the content of Hinduism in order to expand its protection under the right of freedom of religion to the detriment of religious minorities. Specifically, it has put forward the notion that among the thousands of Hindu gods, Lord Ram holds a superior status. While this view is highly contested by historians in India,141 it has allowed the Hindu Right to justify the destruction of a sixteenth-century mosque by a large mob comprised of members from various Hindu organizations on the ground that it had been built on Lord Ram’s birthplace (Ayodhya), and that worship at this particular spot constitutes a fundamental tenet of Hinduism, and is therefore protected by the right to religious freedom.142 This incident occasioned a series of cases that were litigated before the Supreme Court of India, and that marked a shift in its jurisprudence.143 The Indian government acquired the land where the mosque had been destroyed with the purpose of building a Hindu temple alongside a new mosque. The land acquisition was challenged by a Muslim petitioner on the ground that it violated the principle of secularism and the right of religious freedom of Indian Muslims. The Court, however, rejected both claims, and concluded that a mosque is not an essential part of the practice of the religion of Islam,144 and that prayer by Muslims could be offered anywhere, even in the open.145
Indeed, for many years the Supreme Court of India had upheld the traditional significance of Indian “contextual secularism.” As the Ayodhya cases show, however, starting in the mid 1990s, its case law progressively absorbed the agenda of the Hindu Right, ultimately altering the significance of equality, tolerance, and freedom of religion in India, as well as the conceptualization of citizenship.146 The court expanded the scope of Hinduism, conceptualizing it not just as a religion, but as the “way of life” of the entire country,147 while concurrently dealing restrictively with Islam. The shift in the court’s case law is also clearly noticeable in a series of cases concerning the legitimacy of speeches appealing to Hindutva (an ideology that seeks to define Indian culture in terms of Hindu values) in the context of political elections. The court held that speeches appealing to Hinduism and Hindutva during election campaigns do not breach election laws or the Constitution. The speeches were constitutionally challenged not only on the grounds of appealing to voters on the basis of the candidate’s Hindu religion, but also for their extremely vituperative and derogatory character, and, therefore, for having the propensity to incite hatred and enmity between religious communities. Yet, the court gave a broad and expansive meaning to “Hinduism” and “Hindutva,” and asserted that the appeals to Hindutva merely refer to “the way of life of the people in the subcontinent” rather than “an attitude hostile to [] persons practising [] other [religions or an appeal to religion],” and that it was “difficult to appreciate how . . . [the right wing’s position could] be assumed to . . . be equated with narrow fundamentalist Hindu religious bigotry . . . .”148 According to the court, the appeals to Hindutva “promote secularism or [] emphasise the way of life of the Indian people and the Indian culture . . . .”149 This assertion not only drastically reduces the rich tradition of Hinduism to its interpretation by the Hindu Right, but it also leaves “no room for other non-Hindu ways of being Indian.”150
The conflation of secularism and religious majoritarianism is also clearly perceivable in India’s increasing “culturalization” of citizenship. In December 2019, India adopted the Citizenship Amendment Act, which provides a fast-track for the acquisition of citizenship for illegal immigrants from Afghanistan, Bangladesh, or Pakistan who arrived in India before 2014, and who are Hindu, Sikh, Buddhist, Jain, Parsi, or Christian.151 While the amendment was presented by the Bharatiya Janata Party (BJP), or Indian People’s Party, as a tool of protection for individuals who belong to persecuted minorities, it is just the latest chapter of a long history of discrimination against Muslim migrants.152 This is consistent with the Hindu Right’s channeling of the immigration issue in essentially religious terms, “as a tension between the Hindu insider and the Muslim outsider.”153 In a case decided in 2005, for example, the Supreme Court of India had characterized Muslim immigration from Bangladesh as a form of “external aggression,” warning that it would have “dangerous consequences . . . for the Nation as a whole . . . . [and that no] misconceived and mistaken notions of secularism should be allowed to come in the way of [recognizing this reality].”154 The 2019 Act takes a further step in constructing Muslims as threatening, irreconcilable outsiders. Indeed, the U.N. High Commissioner for Human Rights has opined that the Act is “fundamentally discriminatory in nature,”155 as it violates Article 14 of the Indian Constitution, which guarantees to all persons the equal protection of the laws within the territory of India, and has filed an application to the Supreme Court of India. The European Parliament has also drafted a joint resolution which characterizes the Act as “dangerously divisive.”156
B. Reinforcing the Privilege of Christian Majorities in Europe Through the Imposition of Religious Symbols in State Schools
Attacks on constitutional secularism often involve struggles over the presence of the majority religion’s symbols in public institutions, such as courtrooms and state schools.
Indeed, religious symbols play a key role in identity-related dynamics. Thanks to their capacity for evoking unquestioned belonging, they allow for the construction of simplified and artificial identities, and thus provide clear-cut dividing lines by building unity within “the people” and the nation while strengthening divisions with those who do not belong. Religious symbols often play into the hands of nationalists and populists as catalyzers of aggression because they are capable of expressing and generating a primitive intellectual and relational level of human development at the level of blind fixation and belonging.157 Religious symbols also visibly “mark” the public sphere. Their presence—or their banning—symbolize the prevailing power relations between different cultures and identities. Thus, for example, the display of Christian symbols, such as a crucifix in state schools or courtrooms, identifies the “official” state culture with that of the majority religion. By the same token, the exclusion of minority symbols—such as Muslim traditional attire—marks the marginalization of the culture that such symbols are assumed to represent.
A particularly salient example of the use of religion as a divisive marker of national identity was the controversy over the display of Orthodox icons in Romanian public schools, which occurred between 2006 and 2008. In 2006, petitioner Emil Moise challenged the display of religious icons in his child’s public school before the Romanian National Council for Combating Discrimination. The Council agreed that the massive display of icons in state schools violated the principle of state neutrality and was potentially discriminatory. It thus advised the Ministry of Education to restrictively regulate the presence of icons in public schools, enabling their display only during the teaching of religion.158 The Bucharest Court of Justice rejected the Ministry’s challenge of the Council’s decision on the ground that the latter was consistent with human rights standards and religious pluralism.159 In 2008, however, the Romanian Supreme Court of Justice quashed the Bucharest court’s decision and confirmed the legitimacy of the display of icons in public schools.160 The case triggered a heated controversy, exposing a deep division within Romanian society concerning the role of Orthodox Christianity in defining the country’s national identity. Romanian media widely covered the icons issue and the debate reached an almost apocalyptic dimension, as attested by a series of headlines issued between 2006 and 2008, such as “The war of icons,” “The scandal of icons exiled from schools,” “The trial of icons—part of a plan to destroy faith,” and “The renaissance of iconoclasm, the first step to the pursuit of Christianity in Romania.”161 Unsurprisingly, the Orthodox Church, which has become an important ally of the political class as well as one of the most respected institutions in Romania since the fall of the communist regime,162 vocally advocated for the presence of icons in public schools. Civil society became deeply involved in the controversy and a special Coalition for the Observance of Religious Faith was put together by hundreds of non-governmental organizations for the purpose of advocating for the presence of icons in state schools.163 According to Gizela Horváth and Rozália Bakó, who undertook an empirical analysis of the arguments, the rhetoric, and the language used in the context of the icons debate, there were some key differences between the factions supporting the icons and those opposing them. The latter relied mainly on human rights arguments—specifically, on equality rights, religious freedom, minority protection, and children’s rights—and on the secular character of the state.164 To the contrary, pro-icon advocates tended to put forward either moral arguments—equating the Orthodox religion with morality—or, more often, arguments based on the overlapping of religion and national identity.165 Icons were “presented as constitutive parts of the soul of the Romanians . . . [using an] ‘organicist metaphor’: icons can not be torn out of the soul of Romanians.”166 The controversy was often presented as the result of a conspiracy against the Romanian Church and the Romanian people, led by foreign forces loyal to George Soros,167 and involved personal attacks on public figures such as journalists and civil rights activists, who were portrayed as Bolshevists, Extremists, or even Taliban.168
The high-profile Lautsi case, decided by the European Court of Human Rights (ECtHR) in 2011, also sparked controversy over the display of Christian symbols in state schools. The case concerned the legitimacy of the mandatory display of crucifixes in Italian public schools under the European Convention on Human Rights (ECHR). Prior to reaching the ECtHR, the case had been litigated before the Italian administrative courts, which, in order to justify the presence of crucifixes against the backdrop of a secular constitution, had relied on similar arguments to those put forward by the Supreme Court of India in its jurisprudence analyzed above.169 The crucifix was declared to embody social and cultural values shared by believers and non-believers, and to evoke the fundamental principles of the Italian legal order, including the principle of secularism. Indeed, according to the Italian courts, inherent in Christianity are the ideas of tolerance and freedom, which constitute the basis of a secular state. Therefore, it would be a paradox to exclude a Christian symbol from the public domain in the name of a principle such as secularism, which is actually rooted in, and wholly compatible with, the Christian religion. Just as in India where Hinduism has been interpreted extensively by the courts as the way of life of the entire secular subcontinent, Italian courts have envisioned Christianity as representing “the principles of dignity, tolerance and religious freedom and therefore . . . the very foundation of a secular state.”170 Specifically, Italian courts have characterized the crucifix as “the symbol of our history and our culture and, consequently, of our identity . . . and also of the principle of state secularism.”171 Conversely, akin to the Indian courts, Italian judges have cast doubts on the compatibility of Islam with the secular state, alluding to “the problematic relationship between certain states and the Islamic religion,”172 as well as to “the need to reaffirm, even symbolically, our identity,” in order to “avoid a clash of civilizations.”173 Finally, Italian judges have emphasized the importance of displaying crucifixes in state schools to teach “non European pupils . . . to reject all forms of fundamentalism.”174 In sum, in both the Indian as well as the Italian cases, the country’s majority religion is assumed to be naturally inclusive and encompassing of the ideas of tolerance and freedom, which constitute the basis of a secular state. 175
The Lautsi case acquired a European dimension after Ms. Lautsi challenged the display of the crucifix before the ECtHR. The court first condemned Italy on the ground that such display violated freedom of religion and the rights of parents to educate children according to their beliefs.176 This decision immediately became highly controversial, turning the court into the target of virulent attacks. The mobilization that followed exposed a deep division among the member states of the Council of Europe concerning the role of Christianity in the European public sphere and in defining European identity. It also showcased a versatile use of the rhetoric of religious nationalism, which applies to both single countries as well as to Europe as a political unit. Thus, the crucifix went from symbolizing Italian national identity to representing European identity—the two coinciding as challenged by immigration and secularization. Accordingly, both Italy and Europe became envisioned as somehow projecting the ethos of the same religious identity on the scale of the nation-state, as well as on that of Europe’s distinct transnational culture, as overlapping political units that are framed as Christian-imagined communities.177
The ten most deeply confessional member states of the Council of Europe intervened in the case supporting Italy’s request to overturn the decision,178 including the countries most often condemned by the ECtHR for discriminating against religious minorities (Russia, Greece, Bulgaria, and Cyprus). This led a commentator to stress how “Italy . . . has defended the Central-Eastern Europe of traditions against the Western Europe of pluralistic neutrality.”179 The Lautsi case also attests to the emergence of a network of right-wing actors and lobbies that work to defend and expand the privileges of Christian majorities in Europe.180 The ECtHR’s Chamber decision was reversed by its Grand Chamber,181 thanks to the combined effort of a “variegated coalition of actors” ranging from the Vatican to Russia, as well as to American Conservative Evangelicals, whose experience in religious litigation served as a model for their European counterparts.182 Gregór Puppinck, the Director of the European Center for Law and Justice,183 which submitted a brief advocating for reversing the Chamber decision, openly called for an “Alliance against secularism”184 to wage a “battle of cultural identity.”185 In his opinion:
Lautsi is a symbol of the current conflict regarding the future of Europe’s religious and cultural identity. The conflict contains on one side proponents of the complete secularization of Europe, and on the other, those who desire an open Europe, one that is faithful to its true identity and historical roots. Proponents of secularization see secularism, however, as a solution to managing religious pluralism. Moreover, they perceive pluralism as an argument that justifies the imposition of secularism. The so called “religious neutrality of society” (“secularization”) is nothing else but, concretely, the “de-Christianization” of European culture and society.186
Puppinck accused the European institutions of:
[P]romot[ing] a cultural model in which the absence of values (neutrality) and relativism (pluralism) are values in themselves. These institutions are thus supporting a policy that wishes to be post-religious and post-identity, in short, postmodern; and this policy seeks to exclude all other systems, claiming, in essence, to be a philosophical monopoly.187
In order to counter this scenario, he stressed the importance of joining forces with the Russian Orthodox authorities, who had been very vocal concerning the importance of reversing the first Lautsi judgment,188 and, more generally, of pursuing a “strategic alliance between Catholics and Orthodox” Christians to join in defense of the tradition “against secularism, liberalism and relativism prevailing in modern Europe.”189
C. Natural Law, Natural Rights, and the Religion of the Nation
As we have seen in the preceding discussion, nationalist and populist actors cast religious arguments in the language of “natural law,” to attack the very legitimacy of the dominant conception of constitutionalism and its nexus to institutional secularism, and in particular to delegitimize the “culture of rights.” Their arguments—which have gained prominence with the increasing influence of Catholic intellectuals in conservative Christian activism—invoke reason instead of faith, and use the language of religious freedom and anti-discrimination, based on the claim that the right use of reason in legal arguments leads to the same conclusions as theological reasoning. In this light, “moral truths are inscribed in a universal natural law available to human reason.”190 Reliance on “natural law” and “natural rights” goes hand-in-hand with a selective vision of human rights, whereby some are elevated as inherently moral, and thus truly fundamental, while other rights are disregarded as merely political. In 2019, U.S. Secretary of State Mike Pompeo launched the “Commission on Unalienable Rights” to introduce reforms of “human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”191 The Commission is chaired by Harvard Professor Mary Ann Glendon, according to whom “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy . . . . a range of novel sexual liberties might one day become the bread and circuses of modern despots—consolation prizes for the loss of effective political and civil liberties.”192 Pompeo himself decried the merger between “unalienable,” or God-given, and man-made (ad hoc) rights, a dichotomy that contradicts the fundamental tenet of human rights law, that all rights are universal and equal, interdependent and interrelated.193 In July 2020, the Commission released a draft, which suggests how American international human rights policy should better reflect what the Commission characterizes as the nation’s founding principles: Protestantism, civic republicanism, and classical liberalism.194 In this light, not all rights are equally fundamental: to the contrary, property rights and religious liberty are supposedly “foremost” among human rights, while social and economic rights are not “compatible [with the American founding principles] when they induce dependence on the state, and when, by expanding state power, they curtail freedom—from the rights of property and religious liberty to those of individuals to form and maintain families and communities.”195 According to the draft report, at the core of unalienable rights lies the concept of human dignity, upon which rests the United Nations’ 1948 Universal Declaration of Human Rights (UDHR), which “is not created by political life or positive law but is prior to positive law and provides a moral standard for evaluating positive law.”196
The draft report admits that the UDHR “refrains from specifying the ultimate source of that dignity,”197 but it asserts that in U.S. constitutionalism, unalienable rights “were the form in which the American founders gave expression to the idea of an inherent human dignity.”198
This construction raises serious perplexities. The enshrining of human dignity in the UDHR “was the culmination of a significant historical evolution of the concept” in Western philosophy and political theory.199 This concept tracing back to Roman times has acquired different meanings, both religious and non-religious, throughout the Middle Ages and the Enlightenment, when dignity was developed as a philosophical concept. Immanuel Kant provided one of the most influential non-religious conceptualizations of human dignity, as a principle requiring that individuals should be treated as ends and not as means to an end.200 Indisputably, however, the incorporation of dignity in the UDHR constitutes a direct response to the horrors perpetrated during the Holocaust and to the political theories and the legal systems that paved the way to, and sought to legitimate, such horrors. Significantly, human dignity is incorporated in constitutions emerging from, and/or reacting to, racist, fascist, and otherwise heavily discriminatory systems: the German Basic Law201 and other post-World War II European constitutions,202 the constitutions of South Africa203 and of numerous Latin American countries,204 as well as an Israeli Basic Law.205
The framers of the U.S. Constitution did not incorporate human dignity, and it is questionable, to say the least, whether the “unalienable rights” that were at that time monopolized by white, property-owning men could be seen as the “expression to the idea of an inherent human dignity” in a constitutional system where slaves counted as three-fifths of a free individual for the purposes of determining congressional representation.206
Significantly, the expression “human dignity” first appeared in the U.S. Reports only in 1946.207 Since then, as Vicki Jackson explains, “[a]lthough some members of the U.S. Supreme Court in the postwar period have embraced human dignity as a motivating principle for the U.S. Bill of Rights, the role of the concept of ‘human dignity’ in the Court’s jurisprudence is episodic and underdeveloped.”208 Indeed, contrary to what Pompeo’s draft report suggests, human dignity is directly implicated in the protection of social and economic rights. It is, in effect, “a core component of constitutional jurisprudence” in systems which also incorporate “obligations of social solidarity (and government support of positive welfare) not found in the U.S. Constitution.”209 In this respect, human dignity actually sets limitations to economic freedoms, as clearly highlighted by Article 41 of the Italian Constitution, according to which “[p]rivate economic enterprise . . . may not be carried out against the common good or in such a manner that could damage safety, liberty and human dignity.”210
It is true, however, that in the past decade, dignity has increasingly appeared in U.S. constitutional discourse (as well as in U.S. Supreme Court judicial decisions).211 Specifically, dignity has been appropriated by conservative Christians in debates concerning reproductive rights and the equality of sexual minorities.212 Dignity features prominently in the Manhattan Declaration, a manifesto drafted by a prominent conservative Catholic intellectual, Princeton professor Robert George.213 This manifesto was issued in concert by Eastern Orthodox, Catholic, and Evangelical Christian leaders, and it is echoed in Pompeo’s draft report. The Manhattan Declaration defends three basic moral issues: human dignity connected to the right to life from conception, opposite-sex marriage as a natural institution, and the protection of religious freedom.214 Unsurprisingly, the latter is defined in an almost completely unconstrained fashion, as a right against which all other rights and freedoms must be measured. Indeed, the Manhattan Declaration refers to the “weaken[ing of] . . . conscience clauses” and to the use of anti-discrimination law to compel religious institutions, businesses, and service providers of various sorts to comply with activities they judge to be deeply immoral or go out of business.215 Remarkably, the Manhattan Declaration openly vows civil disobedience: “We are Christians who have joined together across historic lines of ecclesial differences to affirm our right—and, more importantly, to embrace our obligation—to speak and act in defense of these truths. . . . that no power on earth, be it cultural or political, will intimidate us into silence or acquiescence. . . . [t]hrough the centuries, Christianity has taught that civil disobedience is not only permitted, but sometimes required.”216 A similar position has been advocated by the Archbishop of Canterbury, who refers to:
[T]he reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that, if a right or liberty is granted, there is a corresponding duty upon every individual to ‘activate’ this whenever called upon.217
In this light, freedom of religion should include freedom of conscience, understood as an absolute right not to comply with general laws and policies that go against traditional Christian morality in the fields of sexual and reproductive rights.218
This cultural and political surge has paved the way for a systematic attack on fundamental rights in the name of religious freedom, aimed at strengthening the privileges of Christian majorities. Christian public interest law firms—such as the American Center for Law & Justice, the Alliance Defending Freedom, and the Becket Fund for Religious Liberty—systematically intervene in high-profile judicial cases, successfully promoting the notion that religious freedom deserves special treatment at the detriment of other rights.219
Countless cases have been litigated before the U.S. Supreme Court concerning, broadly speaking, the special role of religion in American public life. In Town of Greece v. Galloway, for example, the U.S. Supreme Court found that the delivery of a Christian prayer at the opening of the town board meeting does not violate the First Amendment prohibition of an establishment of religion, because “legislative prayer has become part of our heritage and tradition, part of our expressive idiom . . . .”220 Alliance Defending Freedom represented the Town of Greece from the trial level up through the U.S. Supreme Court. In Hosanna-Tabor,221 the Supreme Court recognized a ministerial exception to claims brought under the Americans with Disabilities Act, de facto shielding a religious organization from the application of anti-discrimination law fashioned to protect disabled persons. Moreover, this exception was vastly extended in the most recent Our Lady of Guadalupe School v. Morrissey-Berru case222 where the Court held that a Catholic school could fire two mainly lay teachers who were not required to be Catholic, one because she developed breast cancer and the other because of her age. Not only were the fired teachers not involved in any leading religious position or consequential religious teaching, but they were not fired on grounds contrary to official Catholic doctrine, such as divorce or same-sex partnership. In the pointed words of one of the dissenting justices:
In expanding the ministerial exception far beyond its historic narrowness, the Court[’s] . . . laissez-faire analysis appears to allow . . . employer[s] to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion. This sweeping result is profoundly unfair . . . . [The Court] here . . . swings the pendulum . . . permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs. The inherent injustice in the Court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.223
A particularly contentious field is that of conscientious objection, with numerous cases concerning refusals to provide services to women and sexual minorities based on religious objections. These include mass objection by medical personnel to performing abortions;224 business owners refusing to provide insurance coverage for contraception for their employees;225 photo studios and bakers refusing to provide their services to same sex weddings;226 clerks refusing to issue marriage licenses to same-sex couples;227 and pharmacies turning away women seeking to buy emergency contraception.228 Moreover, there has been a proliferation of statutes expanding the scope of religiously motivated exemptions from the application of general laws in the field of reproductive rights. Some of these statutes cover activities that do not require objectors to engage in any direct participation in acts that they deem immoral. For example, the state of Mississippi adopted the United States’ broadest health care refusal law in 2004, defining:
“[H]ealth care service” to include “any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions.”229
The attempt to reestablish the hegemony of Christianity through the uncontrolled expansion of religiously motivated claims has taken a new turn since 2014 with the Hobby Lobby case,230 in which the claimants, closely held for-profit corporations, objected to providing their employees’ health insurance benefits that covered certain contraceptives (such as the morning-after pill and intrauterine devices that they deemed “abortifacients”), under the Affordable Care Act. The Affordable Care Act, colloquially known as “Obamacare,” mandated individual health insurance and employers of a certain size to insure their employees as part of their employment relationship. In particular, this insurance explicitly included an obligation to offer contraceptive coverage to any woman who wished to avail herself of it. This was an important change from the previous insurance arrangement that often denied women the essentials of reproductive health coverage, thus putting women at a disadvantage in obtaining equal access to health care.231 Obamacare sought to remedy these deficiencies, but immediately ignited a heated debate that coalesced libertarian interests set against government intervention and religious interests rigidly opposed to promotion of reproductive rights. The Supreme Court upheld the claim by Hobby Lobby that offering to their employees the required health care substantially burdened their free exercise of religion under the Religious Freedom Restoration Act (RFRA).232 In her dissenting opinion, Justice Ginsburg stressed, inter alia, how this decision relies on the intelligibility of the claimants’ arguments because of their being rooted in stereotypical notions of gender roles traditionally held by conservative Christians:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?233
Justice Ginsburg dissented again in the most recent Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania case234 which originated in a claim by nuns engaged in social work activities that the mere completion of a form, requesting to obtain an exemption to providing contraceptive services to their women employees (to which they were legally entitled), made them into accomplices in the commission of sins.235 Objecting to the Court’s decision that upheld federal regulation that reinforced the nuns’ position and which could deprive more than 100,000 working women of legally mandated free contraceptives, Justice Ginsburg stressed:
In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. Specifically, in the Women’s Health Amendment to the Patient Protection and Affordable Care Act (ACA), 124 Stat. 119; 155 Cong. Rec. 28841 (2009), Congress undertook to afford gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and well-being. . . . [Today] this Court leaves women workers to fend for themselves . . . . [Neither the] Constitution’s Free Exercise Clause . . . [nor applicable law] call for that imbalanced result. . . . [Nor does the RFRA] condone harm to third parties occasioned by entire disregard of their needs.236
Litigation over the scope and the extension of conscientious objection is by no means the monopoly of the United States. European domestic and transnational courts are increasingly targeted by proponents of the return of strong religion, who engage in strategic litigation trying to establish an American-like “reasonable accommodation” system that would shield religious actors from the application of general laws. These efforts are backed by conservative Christian American lobbies who have opened offices in several key European venues, such as Brussels and Strasbourg, and/or who generously fund their European allies.237 Compared to their American counterparts, however, European courts appear definitely less amenable to such arguments. The U.K. Supreme Court has decided various cases in this field and has recently ruled against the widening of conscientious objection to activities not directly related to performing abortions. Thus, in the Doogan case, which concerned the claim by Catholic midwives employed as Labour Ward Coordinators who objected to “delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process,” the Court specified that the words “to participate in” an abortion procedure meant “taking part in a ‘hands-on’ capacity” and did not extend to the managerial and supervisory tasks required of a Labour Ward Coordinator.238 These latter tasks were held to be administrative in nature, and did not therefore amount to taking part directly in bringing about the termination of pregnancy.239 Importantly, the court noted that conscientious objection is rooted in the idea that a balance exists among conflicting rights and cannot thus override the reproductive rights of women: “[t]he conscience clause was the quid pro quo for a law designed to enable the health care profession to offer a lawful, safe and accessible service to women . . . .”240 In another case, the U.K. Supreme Court decided that prohibiting hotel keepers from discriminating against homosexuals does not amount to a disproportionate limitation on their right to manifest their religion.241 The court noted that homosexuals were long denied the possibility of fulfilling themselves through relationships with others, which “was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised[,]” and that courts “should not underestimate the continuing legacy of those centuries of discrimination [and] persecution . . . .”242 Interestingly, the court forcefully rejected the argument, commonly put forward by advocates of religious freedom as an unconstrained right, that denying Christian businesses the right to discriminate against those who do not live according to their beliefs amounts to the replacement of the “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the Defendants’ beliefs).”243 According to the court, this claimed replacement would only make sense if the gay owners of a hotel denied a double room to their would-be guests on the ground of the latter’s Christian beliefs or heterosexual orientation.244
The ECtHR has also been cautious in granting the right to religiously motivated conscientious objection. In the high-profile case of Ladele, the Court weighed the religious freedom of a public servant refusing to register same-sex unions and of a therapist refusing to provide relationship counseling services to gay clients against gay rights, and decided that the latter should prevail.245 The Alliance Defending Freedom intervened in these cases, because, as its legal counsel admitted: “Sadly, Americans have become accustomed to lawsuits like this within the U.S., too. Just as ADF fights for religious liberty in those cases, we are also committed to doing the same abroad so bad European precedents don’t spread further in Europe and then across the sea to America.”246
In the recent cases of Grimmark247Grimmark v. Sweden, [2020] IRLR 554. and Steen,248 the ECtHR decided that the Swedish authorities’ decision not to employ midwives who refused to take part in abortion procedures complied with Article 9 of the ECHR. Tellingly, both applicants were represented by Scandinavian Human Rights Lawyers, a partially pro bono Christian law firm closely associated with the Alliance Defending Freedom, and whose “work is based on Christian values and ethics, human dignity and the principles of natural law.”249 Scandinavian Human Rights Lawyers did not frame the case in terms of conscientious objection rights, but of employment rights, although the dispute obviously focused on the absence, in Swedish law, of a conscientious objection option for medical personnel working in the field of reproductive health. This allowed the applicants to present their anti-abortion position as a progressive argument in favor of workers’ rights.
Although unsuccessful, these cases clearly illustrate how the American international human rights policy accurately reflects the theoretical basis and the political aspirations articulated in Pompeo’s draft report.
D. An (Un)holy Alliance: The Russian Orthodox Church’s Partnership with the State to Subvert the International Human Rights Regime
Russia cannot be listed among the countries that satisfy democratic standards. Its transition to democracy, which began after the dissolution of the USSR, encountered substantial obstacles, ranging from the lack of a vital civil society to the damaging consequences of a heavily corrupted process of privatization of state assets. This set the conditions for the elites to resist and subvert democratic reforms and paved the way “toward more authoritarian control after 2000.”250 Notwithstanding its “shallow transition,”251 however, Russia adheres, in principle, to the ideals of Western constitutionalism: its 1993 Constitution proclaims, at Article 1, that “Russia is a democratic federal law-bound State with a republican form of government”252 and contains provisions for guaranteeing rights253 and for the separation of powers.254 Moreover, the Russian Constitution enshrines secularism, understood as a principle which guarantees strict separation of church and state and equality among religious denominations,255 and provides for a formally ample guarantee of freedom of religion.256
Since 1996, Russia has been a member of the Council of Europe, and, as such, it has ratified the ECHR and accepted the jurisdiction of the ECtHR. It is, however, a troubled membership: according to the latest ECtHR report, Russia has been condemned far more than any other member state for violating the ECHR.257 In particular, Russia is among the countries that are most often condemned for breaching Article 9 of the ECHR, which protects freedom of thought, conscience, and religion.258 Numerous international bodies and NGOs have pointed to the grave and persistent persecution of religious minorities by the Russian authorities.259
During the Soviet era, religion was harshly repressed and atheism aggressively promoted. A first step towards the recognition of religious rights occurred in 1990, during Perestroika,260 when a law was enacted which:
[P]rohibited the establishment of a state religion, and denied to the state any right of intervention in religious affairs. Churches and other religious organizations were permitted to freely engage in worship and missionary activities, operate schools and seminaries, own property and publish and distribute religious literature, all without the requirement of registering with the government.261
This law, which could have paved the way to the flourishing of a religiously pluralist polity, was ill-received by the Russian Orthodox Church (ROC), which saw it as a menace to its position, especially vis-à-vis the competition of more “modern” denominations (in particular Protestant Churches).262
The Moscow Patriarchate of the ROC sought shelter under the umbrella of the state, with the objective of consolidating its privileged position. The corrupted and delegitimized Russian political elites “recognized the potential in supporting the ROC, an institution perceived positively by the majority of Russians.”263 This set the premise for a new form of alliance between religion and public power, where the ethical force of the first one upheld the political force of the latter, and vice versa.
A new law was enacted in 1997 reducing the scope of religious pluralism and conferring a special role to the ROC. The Law on the Freedom of Conscience and Religious Associations264 recognized the “special role” of Russian Orthodoxy in the country’s “history and the formation and development of its spirituality and culture,” and the existence of four “traditional” religions in the Russian Federation—Christianity, Islam, Buddhism, and Judaism. This excluded from recognition all religious communities that had established themselves in Russia after the breakdown of the Soviet Union,265 thus landing a fatal blow to the most challenging competitors of the ROC. This law was the first step in a series of acts that profoundly altered the secular character of the state and the equality among religious denomination proclaimed by the Constitution. The government was given the power to restrict religious rights to protect the constitutional structure and security of the government; the morality, health, rights, and legal interests of persons; or the defense of the country.266 Anti-extremism legislation (the so-called “Yarovaya Laws” adopted in 2016) has further restricted the religious freedom of minority faiths.267 Indeed, this legislation allows state officials to prohibit the activity of a religious association on grounds such as violating public order or engaging in “extremist activity.” The Yarovaya Laws criminalize a broad spectrum of activities as extremist, including “assistance to extremism,” without, however, providing a definition of “extremism” and without requiring that an activity include an element of violence or hatred as a precondition to being classified as extremist.268 These provisions have legitimized the systematic repression of several religious minorities. A 2017 Russian Supreme Court “ruling declared the Jehovah’s Witnesses Administrative Center [to be] an extremist organization, closed the organization on those grounds, and banned all Jehovah’s Witnesses activities, including the organization’s website and all its regional branches.”269 In its ruling, the Court purported to apply some sort of proportionality standard, affirming that freedom of religion is not an absolute right and that it must be balanced against other rights and values, including “existing civil peace and harmony.”270 Starting in the early 2000s:
[T]he Supreme Court has also banned the activities of several Islamic organizations on the grounds of extremism, including Hizb ut-Tahrir in 2003; Nurdzhular (a Russification of the Turkish for “followers of Said Nursi”) in 2008; and Tablighi Jamaat in 2009. In 2015 the Ministry of Justice (MO) added the Fayzrakhmani Islamic community to its Federal List of Extremist Organizations.271
The convergence of interests between the Russian political leadership and the ROC is responsible for shaping the country’s international human rights agenda, according to “traditional values.” The ROC has designed its human rights agenda “as an ‘alternative’ human rights discourse, in competition with secular liberal human rights activists . . . .”272 Domestically, the ROC aims at preventing any liberalising influence of international human rights on family law.
Indeed, the influence of the ROC is clearly perceivable in numerous areas of fundamental and human rights law other than religious freedom. One of such areas is the regulation of reproductive rights.273 In 2000, the ROC addressed the issue of abortion in depth in the Foundation of Social Doctrine (Social Doctrine). It did not only raise theological concerns, but also demographic ones, decrying the dramatic decrease in population which followed the fall of the USSR. It thus formulated a twofold strategy with the view of changing the situation of abortion legislation in Russia: on the one hand, it insisted on the need for a broad recognition of conscientious objection (of medical personnel as well as of Christian taxpayers not to be forced into compliance with public funding of abortions); and on the other hand, the ROC offered itself as a partner of the state to implement measures that will “align” public morality with the Church’s teachings.274 In the years that followed, the position expressed by the ROC in the Social Doctrine has been developed in public and, specifically in political debates about abortion, in some cases incorporated in the legislative frame.275 In particular, the Russian government proved sensitive to both the analysis and the remedy proposed by the ROC. Indeed, since 2000, Russia has:
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Created a joint committee of the ROC and the Ministry of Health to devise strategies reducing the numbers of abortions in 2010, which led to:
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Adopting a new law on public health that
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adds consultation and a waiting period to the procedure of having an abortion and
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gives medical personnel the right to refuse abortions;
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Seeing the emergence of pro-life charity organizations;
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Putting forward a legal proposal that makes the consent of male partners obligatory for women to have an abortion;
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Adopting legislation that forbids advertisement for abortion and “abortive contraceptives”; moreover
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In 2016, proposed a referendum to abolish abortion in Russia; and
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In 2016, debated taking abortion off the social health care system.276
Similarly, the ROC’s teaching on homosexuality277 is incorporated into the infamous Russian “gay propaganda” legislation. Indeed, in 2013, Russia “adopted a new federal law, banning the so-called propaganda of non-traditional sexual relationships among minors.”278
“Propaganda of non-traditional sexual relations among minors Propaganda of non-traditional sexual relations among minors expressed in distribution of information that is aimed at the formation among minors of non-traditional sexual attitudes, attractiveness of non-traditional sexual relations, misperceptions of the social equivalence of traditional and non-traditional sexual relations, or enforcing information about non-traditional sexual relations that evokes interest to such relations, if these actions do not constitute a criminal offence, is punishable by an administrative fine for citizens in the amount of four thousand to five thousand rubles; for officials—forty thousand to fifty thousand rubles; for legal entities—from eight hundred thousand to one million rubles, or administrative suspension of activities for the period of up to ninety days.”
Kodeks Rossiiskoi Federatsii RF ob Administrativnykh [KOAP RF] [Code of Administrative Violations] art. 6.21 (Russ.). For the above English translation, see Justine De Kerf, Anti-Gay Propaganda Laws: Time for the European Court of Human Rights to Overcome Her Fear of Commitment, 4 J. of Diversity & Gender Stud. 35, 40 (2017). Similar bills had been in place since the early 2000s at the regional level in many parts of Russia, including in its second largest city, St. Petersburg. The Constitutional Court upheld the constitutionality of these laws on the ground that “[t]he family, motherhood and childhood in the traditional interpretation, received from our ancestors, are the values that provide a continuous change of generations, and are conditions for the preservation and development of the multinational people of the Russian Federation, and therefore require a special state protection.”279
Both the anti-reproductive rights legislation as well as the “anti-gay propaganda laws” constitute examples of Russia’s attempt to undermine the universality of human rights by propagating the notion that the interpretation of human rights is contingent upon “traditional values.” Indeed, by enacting the “anti-gay propaganda laws,” Russia refrained—as Justine de Kerf notes—from “flagrantly violat[ing] the ECHR by recriminalizing homosexuality . . . proving that Russia does not wish to alienate itself from the human rights debate, but rather convey a new human rights framework centered on traditional values,”280 formally granting equal rights to homosexuals as long as they do not manifest their identity in public, or, said differently, as long as they stay in the closet.281 In 2017, however, the Russian “anti-gay propaganda legislation” was adjudged to be in violation of the right to freedom of expression282 and the prohibition against discrimination283 by the ECtHR in the case of Bayev and Others v. Russia.284 In a “remarkably straightforward and strong-worded” decision,285 the Court rejected the argument put forward by the Russian Government that the provisions were justified to protect the morals, health, and the rights of others, and particularly minors. According to the Court, states are obliged to take into account developments in society such as the inclusion of same-sex relationships within the concept of “family-life;” that there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian, or any other sexual minority, and to promote their own rights and freedoms; that public health would be better protected with the dissemination of education on single-sex relationships; and that by adopting the “anti-gay propaganda legislation,” “the authorities reinforce[d] stigma and prejudice and encourage[d] homophobia, which is incompatible with the notions of equality, pluralism and tolerance in a democratic society.”286 The Russian judge, Dmitrij Dedov, dissented, arguing that the relevant law should be considered a “positive discrimination . . . to protect the traditional values of Russian society,” and calling on the Council of Europe to “respect ‘family relationships as these are traditionally understood in Russia . . . .’”287
The cooperation between the Russian government and the ROC does not only pose a major challenge both to the constitutional rights of Russian citizens and to the European human rights regime. In addition, religion has become enlisted as a crucial element of Russia’s foreign policy.288 After the annexation of Crimea in 2014, Putin engaged in a narrative of shared religious and cultural roots to legitimize his intervention:
Everything in Crimea speaks of our shared history and pride. This is the location of ancient Khersones, where Prince Vladimir was baptized. His spiritual feat of adopting Orthodoxy predetermined the overall basis of the culture, civilization, and human values that unite the peoples of Russia, Ukraine, and Belarus.289
The ROC has also become an important international actor. Indeed, exhausted by decades of litigation before the ECtHR, the ROC pursues its interests in the international arena, by seeking conservative allies, such as American right-wing Evangelicals, the Vatican, and other conservative Christian churches. The Russian leadership, for its part, favors a multipolar international system not bound by international human rights law, in order to avoid international interference in its domestic politics.290 This dynamic is clearly perceivable in the climate surrounding the 2011 adoption, by the United Nations Human Rights Council, of a resolution entitled “Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind.”291 The resolution was prompted by the Russian Government, which gained the support of the “Global South,” including countries of the Arab League. The resolution echoes the position of the Russian Orthodox Church concerning the foundations and scope of human rights,292 affirming that “Dignity, Freedom and responsibility are Traditional Values,” and that family, community, society, and educational institutions have a fundamental role in maintaining and passing on such values. As Christopher McCrudden notices, in this construction “dignity is seen . . . as having the potential to rebalance international human rights back towards the local and the indigenous, weakening the pull of a homogenizing, universal, and liberal agenda.”293 Tellingly, the European Union immediately pointed to the “potential harm . . . posed by the concept of traditional values in undermining the universality and inalienability of human rights . . . .”294
Hence the resolution can be viewed as part of an attempt by Russia to reaffirm the transcendent foundations of human rights and the role of “religious beliefs in the sphere of norm creation, interpretation and interpretation”295 and as a strategy to further impose itself internationally, as the “leader of the non-West,” with a special role to play in the world’s clash of civilizations.296
Conclusion
The repoliticization of religion poses a challenge to institutional secularism but does not in and of itself threaten institutional pluralism or tolerance of a multiplicity of competing conceptions of the good. A joining of forces between believers bent on implementing Catholic social welfare teachings and secular NGOs devoted to the fight against poverty may well lead to desirable improvements within the polity, while at the same time strengthening mutual respect and mutual recognition through collaboration. More generally, so long as repoliticized religious actors and their nonreligious counterparts can join a common cause based on different reasons and justifications, and so long as points of convergence are commonly emphasized while points of divergence are mutually tolerated and deemphasized in common undertakings, it should be possible to preserve the spirit, if not the letter, of institutional secularism. On the other hand, the repoliticization of religion can often become exclusionary, and, as the above discussion amply illustrates, perhaps even more so when nationalism and populism appropriate religion to go to war against those who are proponents of other religions or who espouse a secular way of life. In the latter cases, it is the very pluralistic ethos essential to the survival of the liberal constitutional order that risks being irreparably set aside. Moreover, what looms as particularly pernicious is that nationalist and populist proponents of repoliticized religion often use the same freedom of speech and freedom from discrimination discourses that have enabled women and LGTBQ individuals, as well as racial, ethnic, and religious minorities, in order to reverse some of the hard-earned gains against oppression and subordination that the latter had obtained after long struggles. As mentioned above, it is by invoking freedom of religion and freedom of conscience that a U.S. corporate employer can today, with U.S. Supreme Court approval, simply revoke the legally provided reproductive rights entitlements of his women employees.297
It must be emphasized that it is exclusionary nationalism and populism that are highly objectionable from a liberal and a pluralist standpoint, and it may well seem secondary whether their grounds for exclusion are based on ethnic origin or on religion. Although that is largely true, there is one sense in which the recourse to religion for exclusionary purposes may be more insidious than its ethnic origin counterpart. This is in relation to the conceptualization and practical application of fundamental rights under constitutions and human rights legal regimes. Because freedom of religion is privileged within its proper domain under the institutional secularism ideal, claims of deprivation of freedom of religion or of discrimination based on religious allegiance or belief tend to be given priority and to be granted significant presumptions of validity. Also, because such claims are often made in relation to transcendent points of reference, they are typically neither subject to verification nor to challenge as to their authenticity or their importance as assessed from any perspective other than the transcendent one from which they are made.298 As against this, claims to privileged status or benefits based on ethnic identity—and particularly based on belonging to a polity’s ethnic majority—are likely to appear inherently suspect within any working liberal constitutional framework.299 In other words, to the extent that claims to ethnic privilege tend to be more transparent than those to religious privilege, it is particularly important in a nationalist or populist context to be able to sort out claims that are ultimately grounded on the appropriation of religion for exclusionary purposes from those that are, ultimately, reflective of plausible worries that certain official undertakings may have anti-religion motivations or consequences in ways that are arguably inconsistent with the dictates of constitutional pluralism.