Abstract
The purpose of this book is to explore the way in which religious freedom (for both individuals and organised collectives) is approached by the state within Western liberal democracies. This is an issue both vital and topical in the context of an ongoing secularisation of public life in the West in parallel with the growth of often state-sanctioned religion in other parts of the world and the consequent global repercussions. The book approaches its topic from a number of perspectives – theoretical, philosophical, historical, political and, most importantly (as both of the authors are law academics), legal. It is ambitious in scope and elegant in execution and is perhaps the most thought-provoking and comprehensive general treatment of the topic available.
The book is divided into three parts, of which Part 1 is likely to be of greatest interest to students and practitioners of theology. This part is divided into two contrasting chapters. The first examines specifically Christian approaches to religious freedom; the second provides an analysis of the same issue but from liberal perspectives. The discussion of Christian approaches compares what the authors describe as the ‘longstanding position’ within the Christian church of intolerance towards other religions with the modern Christian approach of valuing religious freedom. The authors clearly identify the cold logic underlying the historical Christian imperative to persecute religious dissenters, representing as they did a perceived threat to religious, social and political order. For many modern Christians, this aspect of the book may be an unwelcome reminder of an earlier age, but it is perhaps a helpful corrective, given the oft-cited status of Islam as an exemplar of religious intolerance, to note, as the authors do, that Christianity has historically the worst record of all faiths as a persecutor of religious dissent and that the spirit of intolerance ‘which lies dormant, may yet revive and wreak havoc’ (p. 35). More positively, the authors spend some time setting out the bases for a principled Christian approach to toleration of other religions based on, for example: the notion of faith as a voluntary commitment; the ‘tolerant’ example of Christ; the view that persecution is displeasing to God; and, most interestingly, ‘a humble recognition that others may not be so astray or cut-off from God as one first thought’ (p. 45). Importantly, the authors provide evidence to refute the view that religious tolerance was solely a creature of the secular enlightenment and point to specifically Christian thinkers whose writings provided a theological basis for a movement away from religious persecution.
The subsequent discussion of liberal perspectives on religious liberty emphasises how the various pillars of political liberalism – in particular the values ascribed to personal autonomy and freedom of conscience – provide a strong platform for respecting religious freedom, particularly at an individual level. Yet, as the authors note, liberalism does not adopt a single form and it is possible to identify sources of opposition to religious liberty, particularly when it potentially impacts on others, from within the broad liberal tradition. For example, the authors spend some time exploring (and critiquing) the liberal philosopher John Rawls’s doctrine of ‘public reason’ which has the effect of removing religiously motivated arguments from public discourse. They conclude that there are ambiguities in the commitment of liberalism to ‘value-free’ religious liberty and these ambiguities emerge in different ways in the actual practice of religious accommodation.
Part II of the book examines three key themes: models of religion and state relations; the protection of religious freedom; and limitations on religious freedom. These are all big issues and the authors advance their arguments concisely yet with analytical depth. In considering models of religion-state relations, the authors consider the variety of arrangements which could be said to fall within the parameters of a liberal society (thus discounting theocracy, for instance!) and in the process offer a generally positive view of the notion of an established religion, at least in the guise it takes in England. As many academic treatments of Anglican Establishment take a much more critical perspective it is refreshing to be reminded of some of the counter arguments, particularly in the context of the range of possible ‘options’ which are presented in this section. Taking their second theme, the authors discuss the difficulties in arriving at a clear definition of what constitutes an authentic religious belief; they recommend that courts take a broad approach to recognition rather than one that is narrow and might require courts to engage in doctrinal enquiry – something the authors remind us they are ill-equipped to do. In considering their third theme, Ahdar and Leigh recognise that there are occasions in which exercise of religious freedom by individuals and organisations may need to be restricted. This sometimes occurs when religious rights ‘clash’ with other rights (e.g. relating to sexual orientation). They discuss the various arguments, before proposing their own three-stage approach for dealing with situations in which religious rights are restricted. This would involve a party stating how their religious freedom has been infringed; this statement should then be tested by the relevant authorities to determine whether or not the claimant is sincere and whether or not an infringement has taken place. Assuming the claim is a bona fide one, it should then be weighed against any other interests involved (which must be specifically defined) to determine whether or not the infringement can be justified. More justification is likely to be needed to restrict religious practices which adherents feel compelled by their beliefs to engage in than those that are merely permitted or encouraged.
The final part of the book is the longest and is devoted to specific forums where religious liberty may be at issue: in the family; in education; in healthcare and in employment; and the ways in which contemporary legal systems are addressing these issues. The authors also consider issues relating to religious group autonomy and issues of religious expression more generally. The material is surveyed critically and, although there is unfortunately no overarching conclusion section to this part or indeed the book as a whole, in general a nuanced argument towards greater understanding and tolerance of religious liberty in many spheres can be discerned.
It is in this third part of the book that most revisions have taken place since the publication of the first edition in 2005. This is to accommodate some very significant developments in case law which have had a major effect on the way religious liberty is currently being treated by the legal systems in the West. Some of the most important case law has been in Europe, as a result of decisions by the European Court of Human Rights (e.g. the case of Lautsi v. Italy concerning the display of a crucifix in the state school classroom), but there is also some significant and controversial domestic law (such as the decision in Ladele v. Islington Borough Council where the courts refused to recognise a Registrar’s right to be excused involvement in same-sex civil partnerships). Not all of the examples are from Europe, however. One of the authors (Rex Ahdar) is based in New Zealand, and in general the book draws on an impressive range of materials from a range of legal systems in the Western world. Although the approach in this part of the book is very much that of legal analysis, the authors write with a lightness of touch that makes their commentary easily accessible to the non-legal reader.
In conclusion, as a survey of current developments in religious liberty in the West with a legal emphasis, this is a very significant study. It is also highly unusual. The authors present themselves in the introduction as evangelical Christians (‘Evangelical Catholic’ and ‘Anglican Evangelical’, respectively). Their book is written from a Christian perspective insofar as their writing is infused with an understanding of the motivation for religious expression from an internal point of view. They write: ‘The most mundane of human behaviours can be “spiritualised” and take on a religious connotation. One is practising one’s religion when one eats, drinks, works, plays and gardens, as much as when one reads scripture, prays or meditates’ (p. 157). It is this appreciation of the potential reach of religious obligation, from the perspective of the religious claimant, that sets the study apart from other commentaries and indeed the courts themselves – which tend to focus on identifying specific externally observable ‘manifestations’ of religion and to see these as matters of choice and as potentially easily defeated by other interests. Ahdar and Leigh provide a vital and principled corrective to this view and this greatly enriches their overall analysis. In sum, this book is a highly recommended read for those interested in the topic and not least Christians who wish to explore a very significant contemporary issue from within a broad Christian perspective.