How not to think about the state and religious recognition

Bouke De Vries doesn’t like the constitutional recognition of one religion over others. He calls such a state of affairs ‘mono-recognition’. This typically, though not always, involves the constitutional recognition of the religion shared by the historically dominant group in a society, a recognition not given to minority religions. De Vries’ objection to mono-recognition is not the usual four arguments levelled against it. He canvasses and dispatches the arguments that mono-recognition alienates citizens whose religions do not have constitutional recognition, that it perpetrates symbolic or social subordination, and that it violates justificatory neutrality.

De Vries instead claims to offer a ‘novel argument’ showing that mono-recognition is ‘pro tanto wrong’, that is, wrong as far as it goes and until it can be otherwise justified. His argument, what he calls a ‘desire-based objection’, is that it is enough that some citizens desire constitutional recognition for their religion on morally reasonable (or at least on not unreasonable) grounds for the non-recognition of their religion to be wrong. There are two immediate problems with this presentation of the argument. First, even if correct, the claim of a pro tanto wrong in this context is not particularly illuminating. All politically extended powers, privileges and immunities require justification in a liberal democracy, so the claim of a pro tanto wrong only becomes concerning if these justifications lack merit. De Vries does not directly consider what these justifications are or might be. Rather he takes a different tack by suggesting that mono-recognition is something more than pro tanto wrong; he claims to show just ‘how high the justificatory bar for such [constitutional] recognition is’ (De Vries, forthcoming: 17, italics quoted). He suggests that mono-recognition lacks overriding justification in most cases for this reason. Second, it turns out that De Vries’ objection to mono-recognition is not based on the desires of citizens at all.

But let’s stick with the desire-based argument for a moment. Does it support there being even a pro tanto wronging of some citizens? Of course, it cannot be the case that the non-satisfaction of some individuals’ desires alone constitutes an injustice. Individuals have all manner of desires, many of which would likely affront most people’s sense of justice. De Vries thus insists on the riders that citizens desire constitutional recognition of their religion on reasonable or on not unreasonable grounds. What is reasonable or not unreasonable in this context is, however, often part of what is in dispute. Moreover, it is the stuff of democratic politics that many reasonable, or not unreasonable, positions go unaccommodated without this constituting an injustice. Many citizens desire a different party to be in power, for example.

So simply asserting that some citizens reasonably or not unreasonably desire constitutional recognition for their religion is not enough to generate an entitlement to this recognition or to show that its non-fulfillment does them an injustice. Some further argument is needed. The trouble here is that De Vries finds the stock arguments identifying the wrong involved to be unconvincing. It can’t be alienation, he says, because people can feel alienated for no good reason. It can’t be social subordination because the empirical evidence suggests that people tend not to experience an established religion as subordination. And it can’t be justificatory neutrality because ultimately that requires buying into elaborate and controversial theories of neutrality that even many liberal philosophers reject. That leaves symbolic subordination. De Vries’ dismissal of this argument is worth highlighting. Following Sune Lægaard (2017), he rejects the argument because recognising a religion does not necessarily entail a special status for the individual adherents of that religion. As he puts it, there is no implication that it ‘necessarily treats some citizens as more valued members of society’ (De Vries, forthcoming: 5). But if all this is the case, it is hard to see wherein lies the presumptive wrong in not accommodating some citizens’ desire for the constitutional recognition of their religion.

De Vries moves ever further away from grounding the objection to mono-recognition in citizens’ actual desires. The argument includes a counterfactual condition protecting against subverted preferences. Mono-recognition is wrong, he says, not only where some citizens may express a desire for constitutional recognition of their minority religion but also where citizens would desire it were they to ponder the issue without fear of a social backlash ensuing from any such recognition. That is a reasonable condition. But what if citizens do reflect on the issue in the absence of a fear of backlash and yet do not desire constitutional recognition of their minority religion? De Vries poses this vital question. His answer is false consciousness. Citizens who accept mono-recognition may have ‘internalised subordinating norms’ such that their considered and expressed acceptance ‘lacks moral authority’ (De Vries, forthcoming: 14). De Vries plays both sides of the street on social subordination. When discussing the standard objections to mono-recognition, he rejects the social subordination argument by citing findings from a cross-national study that religious establishment did not undermine the trust that religious minorities expressed in the state and its institutions (De Vries, 2020: 6). In defending his own ‘desire-based’ argument, he appeals to social subordination to suggest why citizens’ expressed acceptance of mono-recognition shouldn’t be trusted.

De Vries’ second moral objection to mono-recognition is openly unrelated to citizens’ desires. According to him, where one religion is constitutionally recognised, other religions are also entitled to some constitutional recognition. This recognition should be based, he says, on three conditions: the size of that religion’s community of adherents within the society, the societal contributions made by its community members, and any injustices those members may have suffered at the hands of the state or the wider society. The last condition is needed because it would surely be unfair if a religion did not qualify for constitutional recognition due to state or societal actors depleting a religious community’s numbers (e.g. through massacres) or preventing its members from contributing to the society (e.g. through discrimination).

What should we make of this second, ‘equal entitlement’ argument against mono-recognition? First, it is hardly novel. Simple equality arguments as the measure of fairness in religious and cultural affairs have done the rounds in one form or another for decades. Second, the argument is not really egalitarian. It limits constitutional recognition to religious communities of a certain size and which have made a certain societal contribution. Both conditions are problematic and not only because both are unclear. De Vries himself sets the size threshold at 0.27% of the population. The figure is calculated by dividing 1 day by 365 days, ostensibly on the grounds that one day of recognition is minimally sufficient for most public holidays, birthdays, and other celebrations or commemorations. In many societies, De Vries’ size threshold would exclude quite a number of religious minorities. In multicultural Australia, for example, Bahai, Druze, Jains, Mandaeans, and Oriental Orthodox are among the religious communities that would fail to qualify for calendar recognition (Australian Population, 2019). The societal contribution criterion is arguably even more problematic. Not only is it unclear how one might validly specify and measure such a contribution, one wonders why ‘contribution’ should even count for determining religious recognition. If one accepts De Vries’ premise about non-recognition being presumptively wrong, why isn’t it enough that religious group members are fully fledged and law-abiding citizens for their religion to be ripe for recognition? The ‘equal entitlement’ conditions and the ‘desire-based’ argument appear to be at loggerheads in this respect.

There is also a closing attempt to link the ‘equal entitlement’ and ‘desire-based’ arguments. De Vries promises to substantiate his contention that at least some adherents of non-recognised religions want their religion to be constitutionally recognised in the way equal entitlement authorises. What follows are several observations about the symbolic significance of state recognition for minorities, which seemingly forgets his own earlier dispatch of the symbolic subordination argument against mono-recognition. We are then offered conjectures purportedly ‘in the absence of survey data on this topic’. Thus, we are informed that ‘we have strong reason to suspect that … there are likely to be citizens who either want the state to constitutionally recognise their non-recognised religion’ (De Vries, 2020: 16; my emphases). And the proffered support for these conjectures is the proposition that constitutional recognition of minority religions ‘helps them to feel part of society’. This looks suspiciously like the alienation argument against mono-recognition that De Vries earlier rejects.

Stepping back, De Vries’ intervention is nonetheless useful as a cautionary tale about how not to think about religious recognition and fairness in liberal democracies. It supplies three lessons. The first is that one should not try to resolve these issues in total disregard of a society’s history and culture. Membership in a historically constituted nation-state is actually not like three kids in a car all wanting to sit in the middle of the back seat, to cite one of De Vries’ children analogies. Reckoning with history and culture doesn’t require deferring to status quo arrangements uncritically; rather it means widening one’s field of vision and consideration and not deracinating the landscape (cf. Bader 2007; Bouchard and Taylor, 2008; Levey and Modood, 2008).

Lesson two is not to fixate on constitutional recognition. As De Vries’ switch to speaking of state recognition later in his article indicates, there are different ways of effecting political recognition and promoting a sense of belonging in a diverse society. In many places, changing the constitution is a difficult enterprise requiring high thresholds of popular and/or parliamentary support. Governments can enact legislation or policies of recognition and accommodation far more readily. At this level, De Vries’ suggestion of some diachronic plural recognition or rotation has some merit, though why he construes this only in terms of awarding days in a calendar is hard to fathom. The United States Congress has long permitted guest chaplains from diverse communities to recite a prayer, benediction or statement in opening proceedings in the Senate and House, for example, and this in a country resolutely opposed to politically recognising religion.

Finally, De Vries’ article serves as a cautionary tale also about the practical and moral dilemmas involved in trying to distribute recognition in a mechanical or uniform fashion. India’s longstanding recognition of the festivals of all the major religions (Hindu, Muslim, Sikh, Christian, Jain, and Buddhist) as official public holidays requires a tremendous feat of administrative orchestration across its regions. That kind of effort may have been warranted by its history and context, but it will not necessarily suit other contexts. Trying to tame complexity by insisting that groups must be of a certain size before being entitled to recognition can produce its own moral and social quandaries. What consolation should be offered to those communities that do not meet the arbitrary numerical threshold for recognition? To include a few minorities is tokenism, while to include some but not all is scarcely the fulfilment of equality and may actually magnify the felt disadvantage of those still excluded. All this suggests that the political recognition of religion and religious minorities should be countenanced and assessed depending on the specific recognition concerned and its surrounding context. That requires a much more nuanced and context-sensitive approach than the one De Vries offers here, a tiptoeing rather than a pro tantoing through the tulips, as it were. The result of such an inquiry may well be, in Tariq Modood’s (2013: 77) apt phrase, a ‘variable geometry’ of institutional recognition. For historical reasons, some recognition may be in the constitution. For moral, political, and social reasons, including promoting a sense of belonging, various kinds of recognition might be entertained and extended extra-constitutionally.