The Legal Foundations of Religious Freedom, livre ebook

The Legal Foundations of Religious Freedom documents the essential interdependence of human rights and religious freedom in the West, from antiquity to the present.

In The Legal Foundations of Religious Freedom, authors John Witte Jr. and Andrea Pin explore the Christian and secular origins of rights in the Western legal tradition and the complex interplay between human rights and religious freedom norms in modern law, religion, and culture. They analyze historical documents and recent cases from the United States Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union to articulate the historical, theoretical, and legal tension of human rights and religious freedom on both sides of the Atlantic. The authors contrast the serious threats to new religious minorities and traditional religious accommodations with firm new protections of religious freedoms in both Europe and America.

Ultimately calling for robust protection of the fundamental rights and liberties of all people and faiths, Witte and Pin caution that religious freedom and other human rights claims can only do so much to bridge the widening cultural divides over law and religion in modern Western societies. It is our responsibility to embrace the fundamental goods of dignity, fraternity, and justice.

Religious freedom protections have come a long way in the West. European countries that used to discriminate against or even to persecute religious minorities have embraced bold understandings of religious freedom. States with established churches, concordats, or neutral postures have similarly developed a significant awareness of the need that everyone’s religion is respected and protected. In the United States, the strong protection enshrined in the First Amendment of the Constitution has given life to a strand of cases that have enforced the two clauses of the Amendment throughout the States. As the First Amendment does not apply to private parties, the Congress as well as state legislative bodies have stepped in to protect religious freedom within private relationships.

The past three decades, however, have shaken these strong foundations. Increasingly religious and ideological pluralism has questioned the equilibrium that both Europe and the United States had reached. Alternative human rights and religious freedom agendas have triggered several cultural and legal clashes; the political and legal responses to these challenges, however, have not settled these disputes, but exacerbated them. The crisis of globalization and internationalism in the new millennium has both caused and reinforced nationalism, nativism, and state- or culture-centered narratives, which have fueled identitarian rhetoric and overlooked the needs of religious minorities. In Europe, international and supranational institutions also have often prioritized economic rights, the logic of neutrality, and shown some inclination to second-guess religious groups’ internal policies.

It is essential, in our view, that the core principles of religious freedom remain vital parts of Western constitutional life and are not diluted into neutrality or equality norms alone, and not weakened by too low standards of judicial review. It is essential that American courts address the glaring blind spots in their religious liberty jurisprudence—particularly the long and shameful treatment of Native American Indian claims. It is essential that European legislatures and courts take a deeper look at the consequences of facially neutral policies that unduly burden religious minorities. Both Europe and the United States should consider the growing repression of Muslims and other minorities at the local level more carefully than they often do.

It is also essential in our view to balance religious freedom with other fundamental freedoms, including sexual and same-sex freedoms, and find responsible ways of living together with all our neighbors. Europe and the United States have been dealing with the needs of religious minorities for a long time, and have only gradually come to a still imperfect modus vivendi. They will have to develop a comparable modus vivendi to deal with the needs of sexual, cultural, and linguistic minorities, as well as new immigrants, refugees, and other vulnerable parties. The increasing tribalism, xenophobia, and hostility among rival groups is particularly perverse, feeding mutually destructive strategies of defaming, demonizing, and destroying those who hold other viewpoints and lifestyles. In a rule of law liberal state, rival groups need to learn to live together as good neighbors, sometimes putting up high fences between them as needed.

(excerpted from chapter 20)

Introduction

Part 1. Human Rights and Religious Freedom in the Western Legal Tradition

1. Introduction

2. The Development of Human Rights

3. Human Rights in Early Modern Europe

4. The Development of Religious Freedom

5. Religious Freedom in the International Human Rights Framework

6. Conclusions

Part 2. Religious Freedom in the Contemporary West

7. Introduction

8. Religious Freedom in the Supreme Court of the United States

9. Religious Freedom and Human Rights in Europe

10. Religious Freedom Cases in the European Court of Human Rights

11. Religious Freedom in the Court of Justice of the European Union

12. Comparing Religious Freedom in the American and European Courts

13. The Myth of Religious Neutrality in the West

14. Islam in the West

15. Conclusions

Part 3. The Future of Human Rights and Religious Freedom

16. Introduction

17. Critics of Human Rights. Doubting the Skeptics

18. Critics of Religious Freedom

19. Conflict, Disagreement and Reconciliation

20. Human Dignity as the Foundation of Human Rights and Religious Freedom

21. Conclusions