Religion, State, and Society: Jefferson's Wall of Separation in Comparative Perspective

Reli gi on, State, and Society

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Reli gi on, State, and Societ y Jefferso n’s Wa l l o f S eparat i on in Comparative Perspective

Edited by Robert Fatton, Jr. and R. K. Ramazani

religion, state, and society Copyright © Robert Fatton, Jr. and R. K. Ramazani, 2009. All rights reserved. First published in 2009 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin‘s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN-13: 978-0-230-61230-3 ISBN-10: 0-230-61230-X Library of Congress Cataloging-in-Publication Data Religion, state, and society : Jefferson’s wall of separation in comparative perspective / edited by Robert Fatton, Jr. and R.K. Ramazani. p. cm. Includes bibliographical references and index. ISBN 0-230-61230-X 1. Church and state—United States. 2. Jefferson, Thomas, 1743–1826 3. Religion and politics. 4. Freedom of religion. 5. United States—Church history. I. Fatton, Robert. II. Ramazani, Rouhollah K., 1928– BR516.R45 2008 322'.109—dc22

2008021603

A catalogue record of the book is available from the British Library. Design by Scribe Inc. First edition: January 2009 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

Contents

Preface Andrew Jackson O’Shaughnessy Introduction Robert Fatton, Jr. and R. K. Ramazani

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I

The American Experience: The Jeffersonian Wall of Separation between Church and State

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Thomas Jefferson’s Christian Nation Peter Onuf

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2

Beyond Locke, beyond Belief: The Nexus of Free Exercise and Separation of Church and State Jack N. Rakove

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3

“Separation” Abroad: How Long the Jeffersonian Shadow? Robert M. O’Neil

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4

The Road from Monticello: The Influence of the American Constitutional Experience in Other Lands A. E. Dick Howard

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II The Wall of Separation and Western Perspectives 5

Secularism, Liberalism, and the Problem of Tolerance Adam B. Seligman

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America’s Secular State and the Unsecular State of Europe John T. S. Madeley

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Christianity, Violence, and Democracy: Sociohistorical Selection from a Basic Religious Repertoire David Martin

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III Middle-Eastern Perspectives 8

Religion and Politics in the Middle East and North Africa William B. Quandt

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Revisiting Jefferson’s Wall from a Contemporary Middle-Eastern Perspective Ann Elizabeth Mayer

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10 Constitutionalizing Islam in the Arab World Nathan J. Brown

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11 Religion and State in the State of Israel David H. Goldberg and Bernard Reich

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Index

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Preface

Unlike the French and Russian Revolutions, the American Revolution was not antireligious. It did not result in the destruction of church property or the persecution of religious sects. The popularity of religion grew in its aftermath to the extent that Tom Paine was ostracized in the United States on his return from France following the publication of what many regarded as an atheistic tract, The Age of Reason. The American Revolution nevertheless did transform the relationship between church and state in a constitutional arrangement that remains unique to the United States. Even before 1776, four of the thirteen colonies did not have a church establishment in which the government granted taxes and privileges to a particular denomination. The process of disestablishment was accelerated by the American Revolution but was not fully complete in the northern states, which were originally settled for religious motives by the Puritans, until public support for the congregational church was finally abolished in Massachusetts in 1833. A pivotal event in the process of redefining the relationship between church and state in America was Thomas Jefferson’s Statute for Religious Liberty in Virginia in 1786. Jefferson later regarded the statute as one of his three greatest achievements together with the Declaration of Independence and the founding of the University of Virginia. It may seem curious in retrospect that he should give such prominence to the passage of a law that applied to just one state and not to the nation in general. This was because Virginia was the most populous state in America. The act was far more comprehensive in prohibiting religious discrimination than any other law in any other state. Furthermore, the disestablishment of the Anglican Church was more vigorously contested in Virginia than in other southern states like North and South Carolina. Although later characterized as an atheist by his Federalist opponents, Jefferson partially owed his success to the support of Methodists and Baptists, together with Shenandoah Valley Presbyterians, who opposed the establishment of the Anglican

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Church. Jefferson’s later definition of the relationship of church and state, most notably in his letter to the Danbury Baptists in 1802, in which he spoke of a wall of separation, has been highly influential in the decisions of the Supreme Court on questions of church and state since the 1940s. This volume arose from a conference held at the Archbishop’s Palace in Prague, sponsored by the Robert H. Smith International Center for Jefferson Studies, in association with Colonial Williamsburg Foundation and the Jefferson Institute, on the subject of “The Call for a New World Order: Thomas Jefferson’s Separation of Religion and State,” in March 2007. Since it was established in 1994, the Robert H. Smith International Center has been committed to fostering Jefferson scholarship, disseminating information about Jefferson to diverse audiences, and highlighting the currency of Jeffersonian principles in today’s world. It has conducted more than twenty scholarly conferences held variously in Bellagio, Berlin, Glasgow, London, Paris, Prague, Salzburg, and Warsaw. Although most of the conferences focus on the historical Jefferson, the Smith International Center has also initiated conferences on the modern legacy of Jefferson, including one on “Thomas Jefferson, Rights, and the Contemporary World,” held at the Bellagio Conference and Study Center in June 2003, whose proceedings were published by Palgrave Press in 2004 in The Future of Liberal Democracy: Thomas Jefferson and the Contemporary World. The Prague conference explored Jefferson’s wall of separation in relation to the modern Middle East and Europe. The issue has returned to the forefront with the revival of religious fundamentalism in both the East and the West, posing what some have called a clash of civilizations. The decision of the Bush administration to impose a clause of separation between church and state in the interim constitution of Iraq raised questions regarding the applicability of the Jefferson model for the Middle East and Europe. A panel of historians introduced Jefferson’s ideas while political scientists and philosophers discussed their current implications. The conference concluded that the Jeffersonian separation between church and state was unique to the United States and too radical for the Middle East and much of Europe. Jefferson’s views on individual rights are more relevant than his views of religion to the present needs of the Middle East and Europe. The relationship of church and state remains fluid even to some extent in America, where the interpretation of the Supreme Court since the 1940s has been more rigid than during the period of Jefferson’s presidency. The separation between church and state was

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not particularly contentious in the nineteenth century when the relationship was more porous than now. At the same time, the situation in the Middle East was represented to be much less monolithic and theocratic than it is popularly represented in the United States and Europe. The issue promises to remain topical owing to the increasingly diverse ethnic character of nation-states. It is a pleasure to acknowledge those colleagues and institutions who assisted with the conference and with this volume of the proceedings. R. K. Ramazani, the Edward Stettinus Emeritus Professor of Government and Foreign Affairs at the University of Virginia, suggested the topic and has played a guiding role throughout. The planning of the conference was also made in consultation with Robert Fatton, the Julia Allen Cooper Professor of Politics; Merrill Peterson, the Thomas Jefferson Foundation Professor Emeritus in History; William Quandt, the Edward Stettinus Professor of Government and Foreign Affairs; Robert O’Neil, Professor of Law and Founding Director of the Thomas Jefferson Foundation for the Protection of Free Expression; James Horn, the Vice President of Research and the Abby and George O’Neill Director of the John D. Rockefeller Jr. Library at The Colonial Williamsburg Foundation; Aaron Presnall, the President of the Jefferson Institute; David Martin, Professor Emeritus of the London School of Economics; and Bernice Martin, Emeritus Reader in Sociology at Royal Holloway College at London University. It is also a pleasure to acknowledge the additional funding support from The Colonial Williamsburg Foundation and the John Templeton Foundation. The outstanding local arrangements for the conference were made by the Jefferson Institute in Belgrade, where Aaron Presnall and Biljana Presnall, together with Scott Walker, gave unstintingly of their time whether arranging for special visas from Iran or for the use of the Archbishop’s Palace. It was also thanks to them that the conference was so fortunate as to have a video keynote address that was graciously given by His Royal Highness Prince Hassan of Jordan. Katherine Neville and Dr. Karl Pribram, friends of both the Thomas Jefferson Foundation and President Václav Havel, helped arrange the presence and active participation of President Havel’s senior adviser, Professor Tomá? Halík. There was a reception for the conference participants at the residence of the American ambassador to the Czech Republic for which we are very grateful to our hosts, Mrs. Alexandria Graber, the wife of Ambassador Graber, and Michael Hahn, the U.S. Counselor for the Press and Cultural Affairs. I am indebted to R. K. Ramazani and Robert Fatton for undertaking the editing of this volume and completing it with such efficiency. Joan Hairfield,

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my assistant at the Smith International Center, helped in numerous ways in both the conference arrangements and in the preparation of the manuscript proceedings. Finally, Dan Jordan, the President of the Thomas Jefferson Foundation, had the vision of making Monticello unique among historic houses in giving such emphasis and resources to education and research through the creation of the Robert H. Smith International Center for Jefferson Studies. It is a particularly appropriate memorial to one who believed so fervently in the life of the mind and the pursuit of knowledge as Thomas Jefferson. Andrew Jackson O’Shaughnessy Monticello March 2008

I ntrodu ction Robert Fatton, Jr. and R. K. Ramazani

T

he chapters in this book are the product of a conference entitled “The Call for a New World Order: Thomas Jefferson’s Separation of Religion and State,” held at the Archbishop’s Palace in Prague, Czech Republic, in March 2007. The conference was organized by the Robert H. Smith International Center for Jefferson Studies with the support of the Colonial Williamsburg Foundation, the Jefferson Institute, and the John Templeton Foundation. The issue of the relationship between religion and state, which was for the most part benignly neglected by social scientists for a long period during the Cold War, has resurfaced with intensity in the past decade. The resurgence of “fundamentalism” not only in developing nations but also in economically affluent “postmodern” societies has revived the old debate about the interaction between religion and politics; is the fusion—or relative embrace—of the two compatible with tolerance and individual freedom? In short, can a state sanctioned and governed by divinely ordered norms and laws be at all democratic? Clearly the Founding Fathers of the United States—and above all Thomas Jefferson—believed that liberal democracy could flourish only if a clear separation existed between state and religion. Religious beliefs and practices had to be protected and were at the root of civic morality; the government, however, could neither espouse a religion

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nor govern in the name of a religion lest society fall into intolerance and despotism. The American Founding Fathers sought to resolve the dilemma of how to safeguard the religious beliefs and practices of the citizenry without establishing a theocratic state. This became a fundamental object of their constitutional crafting because they assumed that religion would be a permanent element in human affairs. As Robert O’Neil points out in this book, Thomas Jefferson and his “fellow Framers crafted a document not only for a uniquely complex and disparate nation, but also for all time and human experience.” The conviction that religion would always play a critical role in the life of the individual as well as society in general was not shared by all. Indeed, some of the major figures of the Western social sciences, ranging from Karl Marx to Max Weber, believed that industrial modernity, and the continuous advance of scientific rationality and technology, would generate the inevitable secularization of society. Religion would simply fade away; it would become a historical memory and cease to be a living reality. It would no longer intrude into the workings of the political order or fuel backward attitudes. Human beings would be freed from the suffocating weight of tradition and alienation even if they would have to face a “disenchanted” world. To that extent, according to classical social science, modernity would make obsolete the old problem posed by the relationship between religion, society, and politics; it would kill God. Moreover, it was thought that secularization would deepen individualism, tolerance, and diversity and enhance the further development of democracy. In that perspective, there was a linear and causal chain linking backward economies to traditional, religious, and authoritarian polities, on the one hand, and industrial affluence to enlightened, worldly, and democratic social orders, on the other. In reality, however, the American Framers seem to have been right. Modernity has proved quite compatible with the persistence and even intensification of religious beliefs and traditions. The question remains, however, whether democracy can coexist without secular popular attitudes and institutions. While religion as a living social phenomenon does not seem to be necessarily antagonistic to democracy, it tends to become so when it guides the authority of the state. The founding fathers of the United States embraced this assumption and established a doctrine of separation between church and government while espousing the individual’s freedom to practice his chosen religion. Among them, Thomas Jefferson played the foremost role in elaborating this doctrine. He articulated his forceful advocacy of what he called a “wall of separation between church and state” in his letter

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of 1802 to the Danbury Baptist Association. This was not just a matter of promoting civic morality and virtue; it was also a fundamental defense of freedom of conscience and religion. The Jeffersonian perspective that democracy requires this “wall of separation” has had a profound influence on both the domestic and foreign policy of America. While it has established obdurate limits to the long penetrating reach of the state into spheres deemed private, it has not prevented religion from permeating politics in the United States. In fact, as Ronald Inglehart and Christian Welzel have recently pointed out, “the United States is a deviant case, having a much more traditional value system than any other postindustrial society except Ireland. On the traditional/secular dimension, the United States ranks far below other rich societies, with levels of religiosity and national pride comparable with those found in some developing societies.”1 According to polling data conducted over the past ten years, 55 percent of Americans thought that the Bible “was literally accurate,” more than 90 percent and 80 percent believed in God and miracles, respectively, and more than 60 percent held as “literally true” that “God created earth in six days.”2 Not surprisingly, Americans are far from being unanimous on how solid and thick the “wall of separation” ought to be; on repeated occasions since 1947, the Supreme Court has had to rule on diverse contested aspects of the “doctrine of separation.” It is true that separation remains, however, a fundamental constitutional principle in the United States, even if increasingly, Americans expect their politicians to disclose their religious beliefs. The growing religiosity of the United States is apparent to the extent that presidents and presidential candidates proclaim their faith and have no reluctance in declaring that their decision-making process is informed by God. While five decades ago John F. Kennedy believed “in an America where the separation of church and state [was] absolute,” in the seventies Jimmy Carter identified himself as a “born again” Christian, and more recently, George W. Bush not only claimed Jesus as his favorite philosopher but also believed that “God [wanted him] to be president.” In fact, he was reported to have told a group of Amish: “I trust God speaks through me. Without that, I couldn’t do my job.”3 In spite of the growing significance of religion in American life, the country has not fallen into the tyrannical rule of what Jefferson called the “priestcraft.” Elsewhere in the world, however, the resurgence of religion has nurtured intense fears about the prospects of a descent into theocratic despotism. In fact, most societies are now wrestling in one way or another with the crucial question of establishing the

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proper balance between religion and state. Even communist China is confronting the reality that imposing atheism is not a simple matter and that sacred traditions and rituals continue to mold people’s practices and beliefs. In fact, communist authorities have had to tolerate and ultimately support Buddhism and Confucianism because they have come to perceive these faiths as contributing to social harmony and political stability. This book, however, focuses on societies where the Christian, Islamic, and Jewish traditions predominate. Also, it explores relations between religion and state that are so problematic that they may portend serious conflicts and violence. Moreover, the book seeks to delineate the extent of the demarcation between religion and state in America, Europe, and the Middle East. It reveals the enormous complexity and diversity of governmental policies and constitutional principles on this matter. As we remarked above, in America itself, the doctrine of separation is by no means interpreted uniformly, even if it is regarded as inextricably intertwined legally and politically with the principles of democracy and religious freedom. Unlike America, other Western democracies such as England do not view established Christian religion as inimical to the values of liberty, tolerance, and individual rights. While tensions exist between the two, they are perceived as neither incompatible with, nor necessarily antagonistic to, liberal politics. For most Western observers, however, the relationship between Islam and state is more complex; in their eyes the absence of a wall of separation between the two is conducive to different degrees of theocratic authoritarianism. Thus, when these observers study Middle Eastern societies they tend to depict the relation between religion, state, and freedom as conflictive and even inimical. Ultimately, the compatibility between established state religion and democracy rests on whether citizens have the constitutional capacity to contest the authority and legitimacy of a government ruling in the name of God and based on divinely inspired law. In short, can human beings challenge God and God’s alleged political representatives? The question clearly goes beyond the geographical regions and the three Abrahamic religious traditions that this book studies; we hope therefore that the chapters in this book will stimulate intellectual debate and broaden the discussion in a truly global comparative perspective. For instance, how are societies in Africa, Latin America, and Asia arranging the relationship between religion and state? Is the so-called third wave of democratization in these areas undermined by the resurgence of the sacred? And are these societies concerned at all about erecting their own wall of separation?

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This last question raises another critical matter: can American constitutional democracy be exported abroad? While the assumption that democracy is incompatible with backward economies and particular cultures and religious faiths has to be resisted, there is little doubt that the goal of imposing democracy with guns, missiles, and bombs is at best unrealistic and at worst cynical. The George W. Bush administration’s experience in Afghanistan and Iraq demonstrates that the facile and dreamy goal of forcefully exporting American democracy throughout the world can end in disaster. In part I of this book, Peter Onuf describes Thomas Jefferson’s wall of separation not as a symbol of antireligious principles, but rather as an embrace of “a more enlightened purified Christianity” that would emerge from the free operation of the religious marketplace. In this perspective, Jefferson was an “idiosyncratic” Christian who sought to end the pernicious rule of “priestcraft.” Ultimately, his commitment to “disestablishment” was a means to contribute to a “post-theological and sectarian future in which science, religion, and republicanism converged.” To that extent, Jefferson was a firm believer in the compatibility between democracy and freedom of religion. In fact, the flowering of multiple religious faiths unencumbered by state control ensured both liberty and political order. As Onuf puts it, “Competition among proliferating sects gave rise to more democratic forms of church organization, to simpler, more direct theological appeals, and to less and less emphasis on the doctrinal differences that had justified religious wars and the spilling of ‘oceans of human blood’ throughout human history.” Far from summoning a struggle against the sacred, Jefferson’s doctrine of separation was a call for religious and individual freedom, which, he believed, would promote the discovery of the “genuine doctrines of Jesus.” While this discovery was in Jefferson’s perspective critical to the development of the United States as a “moral community” playing a “providential role in world history,” Jack Rakove reminds us that the wall of separation was above all a way to “fence off . . . one vital area of the human personality from public intrusion, supervision, and punishment.” The separation between church and government is therefore one fundamental means of protecting citizens from the potential predatory reach of the state. By providing individuals the right to freely choose their religion unencumbered by the imposing power of political authorities, “disestablishment” was both cause and effect of the call for freedom of conscience and limited government. As Rakove argues, “freedom of conscience is better understood as both a necessary condition and even a compelling argument in itself

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for the separation of church and state.” This in turn was a clear sign that for Jefferson and his fellow Framers, constitutional democracy was primarily a form of limited government that could not infringe on individual rights. Writes Rakove, “The idea that government can entirely abjure its authority to regulate religion, as such, marks the point where the general concept that all the powers of government ultimately derive from a sovereign people was converted into the recognition that there were entire realms of human activity that government could no longer be allowed to regulate.” Not surprisingly, the influence of the American constitutional experience on other lands has primarily inspired the crafting of limited forms of governments rather than effecting the erection of the wall of separation. While Robert O’Neil points out that this wall has precluded the creation of a “formally established and publicly supported church,” he stresses that it has not prevented the development in America itself of “complex and beneficial relationships between government and religion.” These relationships are certainly more fluid and symbiotic in other parts of the world where either “a surviving establishment coexists with substantial religious freedom . . . (as in the United Kingdom) because of strong safeguards in the courts and surely not because of any mandated separation of church and state,” or “where secular principles dominate, as in Turkey, though without a consistently secure and pervasive condition of religious liberty.” Clearly, then, few countries have erected the Jeffersonian wall of separation. In fact, as O’Neil remarks, “there appear to be only two foreign nations [France and Australia] in which both free exercise and nonestablishment both receive explicit constitutional commitment.” Even in these two cases, however, striking differences between these countries are apparent. The exportability of the American constitutional model is thus limited by the cumulative weight of distinct historical trajectories, cultural norms, and political traditions, as well as by varying levels of economic development. In fact, according to A. E. Dick Howard, Americans “must beware the temptation to hold out their own country’s experience as surely right for another people.” This is not to say that the American experience has nothing to offer to the rest of the world, but rather that borrowing from it can be successful only for those societies “aspiring to liberal constitutional democracy.” There are also exceptions, as the case of Japan illustrates, where the American military occupiers imposed a constitution that has survived their departure. American constitutionalism can thus impress on foreign lands its fundamental principles of “limited government, separation of powers,

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checks and balances, a recognition of national and local interests, constitutional supremacy over ordinary laws, and protection of individual rights.” Exporting the wall of separation, however, seems to be a more complicated affair; especially in cultures where people perceive religion, politics, and private life as one integrated sphere rather than as demarcated domains operating independently from each other. Despite the pretensions of many U.S. leaders, American constitutionalism, let alone the separation between church and state, does not seem to be universal. Indeed, as Adam Seligman argues in part II of this book, the idea that concepts such as religion and secularity are “objective, universal and value-free” is “fundamentally flawed.” In spite of its popularity, this idea serves us poorly in analyzing societies that are not rooted in Western Christian civilization. For what is meant by the term secular or secularization? For instance, can we truly accept Ronald Inglehart’s contention that China is the most secular society in the world when in reality it is riddled with a “proliferation of spirit cults and other forms of worship”? Or, to paraphrase Seligman, are the Muslims who eat during Ramadan—but only in private, in hiding, away from communal eyes—secularists, sinners, or ignorant? In Seligman’s view, such behavior reflects people’s never-ending interpretation and reinterpretation of their traditions. This process is in turn “continually being negotiated and negotiated anew by communities and individuals over the course of time.” For Seligman, secularism is nothing but “a very particular moment in the Christian process of negotiation of its own tradition,” a moment that crystallized the privatization of religion and of conscience. In turn, such privatization was “part of a larger politics, perhaps even a political theology that has become the hallmark of a liberal American vision of modernity. And of course here precisely is the rub. For accepting these principles essentially means accepting either a liberal/ secular version of selfhood and society that is not shared across the globe and across human civilizations, or an explicitly Protestant vision of human existence in the world—which is certainly not shared.” Secular liberalism, however, is not the “terminus ad quem” of Christian civilization. In fact, it deprives individuals of recognition and of their “separate and unique existence and identity” because it emphasizes their sameness and their equal rights. The lack of recognition has paradoxically reinvigorated a search for alternative identities “predicated on religion, ethnicity, and nationhood.” Not surprisingly, this has meant the exaltation of difference and local particularisms and a withdrawal of communities

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unto themselves. Instead of a tolerant cosmopolitanism, there is in Christian and non-Christian areas alike a “closing of ranks against the outside world and a reticence to interact with those who are truly different.” In fact, the United States and Western Europe are witnessing, especially after the tragic events of September 11, a growing wave of anti-immigrant feelings often clothed in loud and ugly anti-Islamic pronouncements. According to Seligman, we can escape from this predicament and revitalize pluralistic and tolerant patterns of behavior only if we reengage vigorously with traditions that are not “predicated on liberal and modernist ideas of self and of interaction between selves.” But have the instrumentalities of state power been at the service of modernist, liberal, and secular forces? John Madeley’s survey of Europe suggests, perhaps surprisingly, that they have tended to boost religious objectives and institutions. The secular state, as it were, is more an invention of the United States than a universal phenomenon. In Europe, the evidence indicates not only “the survival of many of the marks of the early-modern confessional state,” but also “a reverse trend toward a reengagement of state authorities with the religious sphere on a range of fronts.” The collapse of the atheistic communist regimes has accelerated the trend. But even before this collapse, European states were predominantly “religious”—that is, supportive of religion and church institutions. Indeed, following this definition, twenty-one out of thirty-five European countries could be considered religious in 1980, and only five were “secular” in the sense that they promoted “neither religion nor irreligion.” The remaining nine were atheistic insofar as they were all communist states committed to an official antireligion ideology. Thus, Madeley offers significant data to prove that the “instrumentalities of state power and authority . . . often have been utilized for religious ends in Christian Europe as much as in other parts of the world.” Utilization, however, does not mean fusion; according to David Martin, democracy unfolds when the “religious sacred centered on the unity of the faithful” separates from the “social sacred centered on the unity of the nation.” The development of democracy has hinged upon both the establishment of a distance between the sacred and the profane, and the survival of the sense of solidarity that religion had hitherto provided to the community. The problem, however, is that once the consensus fidelium has been “undermined by an appeal to the individual conscience in the interpretation of scripture, and its eventual secular translation in terms of individual judgment as such,

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unity is in principle beyond recovery.” The vacuum left by the shattering of the consensus fidelium has to be filled by an alternative form of solidarity, lest violence subverts the possibility of democracy. Martin, however, warns of the danger of a rising nationalism becoming the new consensual principle and unleashing a politics of exclusion based on ethnic or ethnoreligious cleansing. This trajectory is not inevitable, and Martin suggests that certain religions seem to facilitate both the erection of the Jeffersonian wall of separation and a smoother transition to democracy. He writes, “Protestantism has provided uniquely easy passage for democracy, in spite of a partial association of state churches with elite strata and a conservatism of throne and altar.” In contrast, Catholicism stopped being an obstacle to democratic tolerance only with Vatican II, when it abandoned its “fortress mentality . . . with its authoritarian, intégriste, and antiliberal stances.” Catholicism has remained, however, intolerant of what it considers the permissive behavior of an increasingly narcissistic consumer society. It continues to be concerned about what it alleges to be the moral laxity of liberal Western democracies, the decadence of sexual norms, and the blasphemous character of modern popular culture. To that extent, Catholicism shares with Islam a generalized anxiety about modernity as portent of moral and spiritual decay; but unlike some popular versions of Islam, Catholicism has largely forsaken an integral vision of state and religion rooted in the “the unity of religious and national identity and the close alliance of religious and secular law.” According to Martin, such versions of Islam face the dilemma of how far they can extend “liberal tolerance . . . to minorities, increasingly segregated in cultural ghettos at a considerable distance from the values of civil society.” On the other hand, he suggests that Islam’s tolerance is ultimately contextual; it varies depending on the location in which Muslims find themselves. So, for instance, “in the United States they mostly assimilate to the pluralistic ideal, whereas in Europe they are divided, and in Pakistan . . . they are menacingly hostile to minorities.” In part III of this book, William Quandt goes beyond the idea of Islam’s contextuality. In fact, he argues forcefully that in most countries of the Middle East and North Africa, it is the logic of the state and politics that imposes its hegemony over religion. In that sense, the proximity of the sacred and the profane is neither the cause of the mostly authoritarian character of the region, nor the source of the growing popularity of religion. The absence of the wall of separation is simply not responsible for the area’s predicament. Quandt writes,

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Robert Fatton, Jr. and R. K. Ramazani The idea that religion trumps politics in the Middle East is, in fact, almost the opposite of the historical record, where states have generally dominated and determined how religion should be observed. With the weakening of states, opposition movements have arisen in recent years that draw heavily on religious symbols, but it would be a mistake to see these as primarily or solely religious expressions. They are largely about politics and power, and if they succeed in coming to power they will almost certainly behave as other states have in the past—they will view it as the prerogative of the state to decide how religion should be taught and practiced. . . . [Political] power is almost always in the hands of individuals who are primarily political, not religious, in their orientation. Religion thus becomes the handmaiden of politics, not the other way around.

Iran, however, seems to be the exception to the primacy of politics over religion. There the clergy has seized state power and the supreme leader is a senior Ayatollah chosen by the predominantly clerical Assembly of Experts. Moreover, the Council of Guardians controlled by religious figures is empowered to guarantee that candidates for election are devout Muslims and that legislation is consistent with Islamic law. Quandt rejects, however, the conventional labeling of Iran as a theocracy, because the religious regime functions alongside representative institutions that are accountable to the population. Iranians enjoy the benefits of the universal franchise and elect their president and parliament. The fact remains, though, that Islam plays a pervasive and guiding role in Iranian politics and society. This may have to do with the dominance of Shi‘a Islam, which has historically displayed greater autonomy from the state than its Sunni counterpart. This autonomy has given Shi‘ite religious figures the legitimacy to claim that unlike Sunni clerics, who are often described as “handmaidens of state power,” they are the only alternative to the rule of corrupt leaders. Variances in Islam are thus critical in understanding the differences in forms of governance and the relationship between the sacred and the profane. But as Quandt remarks, even if Iran represents “the high-water mark of religion in politics . . . it is not at all certain that the clergy will always maintain the tight grip that it seems to have today.” In other words, the vicissitudes of three decades of clerical rule have begun to sap the moral authority of Islam itself; Islam in power has paradoxically been undermining the power of Islam since it has been incapable of resisting authoritarian temptations and the fraudulent gains of governmental corruption.

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Ann Elizabeth Mayer reminds us that “patterns of repression” are not necessarily linked to the absence of a wall of separation. In fact, she argues that Turkey’s secular state is “proof that disestablishing religion does not necessarily mean ending state-imposed orthodoxy or relaxing onerous restrictions on freedom of thought and expression.” Authoritarianism is thus not an inevitable by-product of an Islamic seizure of power. Indeed, Mayer contends that “in certain circumstances, upholding Islam as the state religion under a traditional Islamic monarchy could actually help to secure space for democracy and religious freedom. . . . [In] the contemporary Middle East, clinging to an absolutist policy of separating religion and state could be unwise and even counterproductive.” This is not to imply that Islamism’s insistence on the necessity of fusing state and religion has no authoritarian implications. Far from it. As the Iranian case demonstrates, the Islamist claim that it is un-Islamic to challenge the unity of religion and government can easily provoke a descent into despotism and terror. Mayer contends that Islamists are invoking the Prophet Muhammad’s infallible leadership of the unified Muslim community, umma, not only to restore this unity, but also to gain the political support of a disaffected population in order to seize power. Given the conditions of economic backwardness, social inequalities, and corrupt patterns of governance prevailing throughout the Middle East, it is easy to understand the Islamist’s popular appeal. As Mayer explains, “Islamism promises the disaffected that a utopian system lies at hand that can easily cure all these ills. According to Islamist theory, all that is required is rule by pious leaders committed to the faithful implementation of Islamic law, which constitutes the blueprint for perfect societies.” In that perspective, clerics use Islamism to manipulate the religious feelings of the population and ultimately to take political power. Once their rule is secure, they establish Islamism as an infallible system of belief and governance to liquidate opponents, suppress dissent, and impose their theocracy. This, according to Mayer, is the unfortunate trajectory of Iran’s Islamic revolution. But this is only part of the story, for the very excesses of Islamism have provoked among important clerics a questioning of the unity of state and religion and an increasing uneasiness with Islamism itself. To that extent, the issue of the Jeffersonian wall of separation is alive in Iran. As Mayer puts it, “Islam itself has been no barrier to an enhanced awareness of the benefits of separating religion and state.”

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Nathan Brown, on the other hand, suggests that this awareness may well be thwarted by the traditional Islamic belief that “corruption comes from eliminating the connection between eternal truths and public affairs.” This belief is supplemented by a common conviction that such timeless truths emanate from God and can be imposed on society through the sharia—the Islamic way. By embodying a divine legal framework, the sharia can become the sole code of human conduct, thus nullifying any meaningful process of constitutional framing. In fact, in many Arab countries, constitutional provisions empower the sharia to become the basis for all “legal enactments.” To that extent, as Brown points out, “the sharia itself stands prior to the positive legal order—including, potentially and by implication, the constitution itself. If the sharia is a primary source . . . of legislation, then it becomes possible to argue that it forms the fundamental legal framework. . . . [This] makes it possible to challenge legislation that does not seem to be in conformity with Islamic sharia principles on constitutional grounds. In short, it makes it possible—through constitutional jurisprudence—to turn the principles of the Islamic sharia into a supraconstitutional order.” This is not to say that constitution making in the Arab world is bound to submit to the divine dictate of the sharia. According to Brown, countries like Morocco, Algeria, Egypt, and Yemen have managed to integrate aspects of Islam into their constitutional frameworks without challenging the ultimate supremacy of their constitutions. They have been able to include legal provisions that have maintained the symbolic power of Islam without diluting the sovereign authority of political rulers. Still, the tension between religion and state has not abated; on the contrary, it is likely to intensify and reinvigorate constitutional debates. As Brown argues, the “Arab experience does not show that Islamic constitutionalism must fail. But it does raise the importance of the skeptical questions suggested by Western constitutionalist practice: How can one apply divinely inspired law without giving authority to human beings? And how can human beings be held accountable to divine standards?” As David Goldberg and Bernard Reich demonstrate, the relationship between synagogue and state in Israel raises similar questions. While the self-designed Jewish nation has no official religion and protects the freedom of religion for all citizens, and was founded by “essentially secular, socialist . . . Zionists,” it is permeated by religious practices and norms. For instance, the state has always played a significant role in interpreting Jewish law, halacha, and has left in the hands of Orthodox religious parties the thorny problem of defining who is

Introduction

13

a Jew and who is thus entitled to return from the Diaspora to “the Jewish homeland—the Land of Israel.” All of these matters have contributed to blurring the demarcation between state and synagogue. Moreover, religious political parties bent on promoting specifically religious interests and objectives have had significant influence in the making of governments and state policies. As Goldberg and Reich explain, the “permanence of the religious parties and their continued participation in Israel’s political process skews the religious-secular debate.” But if Orthodox forces have tried to colonize the state, they have encountered the resistance of secular groups in the “perpetual struggle to define the character and soul of the Jewish state.” This struggle symbolizes the difficulty of establishing a wall of separation between the sacred and the profane and the fluidity of relations between the two putative spheres. In a dialectical interaction, religion and state clash against each other while simultaneously interpenetrating each other’s domain without ever losing their respective autonomy. This is a far cry from the Jeffersonian wall of separation. Let us now bring to a close this brief survey of the chapters contained in this book. All the contributors agree that the tensions between state and religion find no easy resolution. We are thus tempted to say that, in spite of some problematic differences, Goldberg and Reich’s conclusion about Israel may well sum up a general reality: “No clear parameters have been established for the roles of the secular and religious elements and no written constitution articulates the precise role of church and state in relations with each other, nor for the precise powers and limitations of each concerning the other.”

Notes 1. Ronald Inglehart and Christian Welzel, Modernization, Cultural Change, and Democracy (Cambridge: Cambridge University Press, 2005), 65. 2. See Kevin Phillips, American Theocracy (New York: Viking, 2006), 102. 3. Ibid., 206–8.

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Pa rt I

The Amer ican Ex per ience: The Jeffersonian Wall of S eparation between Church and State

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Chapter 1

Thomas Jef f erson’s Chr istian Nation Peter Onuf

I

n their 1861 Constitution, the Confederate States launched their experiment in nation making by acknowledging their fealty to Jesus Christ.1 Not to be outdone, Northerners proposed an amendment to the federal Constitution in 1864 that would declare the United States a “Christian nation.” Although the amendment did not succeed, it garnered widespread support from religious people struggling to make sense out of a seemingly endless war. The culmination of a great sectional crisis that ruptured national church organizations, the Civil War unleashed an extraordinary wave of popular piety and civic religiosity. Armies destroyed each other and devastated the countryside, but Christianity advanced, on the home front and in the trenches. One nation, bound together by constitutional compromises, interlocking economic interests, and the great national parties of the Second Party System, had become two Christian nations, driven to war by a shared moral fervor. The Civil War constituted a massive repudiation of the Founding Fathers’ union, a plan for perpetual peace among the American states. God may have been present at the founding, but he left the Founders to their own enlightened devices. When Americans went to war in 1861, demolishing the Founders’ great legacy, God seemed to be taking a much more active role as Christians north and south invoked and acknowledged His presence. “The only difference between them

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and us,” Abraham Lincoln concluded in March 1865 with war’s end in sight, “is the difference of circumstances.” Northerners and Southerners “read the same Bible, and pray to the same God.”2 The motives of the men who made the war were certainly mixed, even—in the clear-eyed view of their enemies—sordid and self-seeking. But there is no question that Northerners and Southerners alike responded to the call to arms with patriotic enthusiasm, and that for vast numbers of them patriotism was grounded in Christian faith. Perhaps the Civil War was caused less by an “excess of democracy,” as revisionists once argued, than by an “excess of piety.”3 A vision of Americans at war with one another was Thomas Jefferson’s nightmare. The rupture of the union, he presciently warned former congressman John Holmes of Massachusetts (Maine District) in 1820, would be nothing less than “treason against the hopes of the world.”4 And Jefferson, apostle of reason and avowed enemy of “priestcraft,” would have been repelled by the ostentatious religiosity of the Civil War generation and the prominent role assumed by the clergy in bringing on and sustaining the war. Nor did the combatants, as they mobilized powerful national war-making machines, adhere to the Jeffersonian gospel of small government, strict construction, and dedication to civil liberties. The distance between a peaceful union of republican states and a state of war between “Christian” nations thus seems unbridgeable, with Jefferson receding from view, on the far side of a yawning chasm. My purpose in this chapter is not to challenge this conventional, commonsensical view, for these two pasts—the eras of the founding and of the Civil War—are certainly “foreign countries” to each other, as well as to us. Instead, I hope to illuminate the terrain, or “chasm,” between them, suggesting ways in which Jefferson was implicated in the transformations of the political and religious landscape that prepared the way for the union’s collapse.

C ho sen Peoples Jefferson’s conception of the union reflected the influence of Enlightenment political science, but he also envisioned a glorious future for Americans as a chosen people in a “chosen” country that anticipated the pervasive romantic—and Christian—nationalism of later generations. As the Missouri controversies of 1819–21 demonstrated, Jefferson’s commitment to the union ultimately could not be reconciled with more fundamental commitments to states’ rights and republican government. In the midst of the first great struggle over the expansion

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of slavery to the West, Jefferson foresaw the emergence of two hostile and necessarily belligerent nations, defined by “a geographical line, coinciding with a marked principle, moral and political.”5 The “restrictionists” who sought to keep slavery out of Missouri were guilty of “treason” because they introduced a spurious “moral” issue into American politics. Moral issues were divisive because they were ultimately nonnegotiable: “Once conceived and held up to the angry passions of men,” such a boundary “will never be obliterated.” Jefferson’s advocacy of Missouri’s republican right to establish slavery may have been predicated on his understanding of federalism, but implicitly acknowledged the higher claims of the republic as a moral community. Peaceful, noncoercive union could flourish on either side of this “geographical line,” but any union that crossed the line would be tenuous at best. Without a common moral foundation, Americans no longer constituted a single people: they might “calculate” that continuing union would serve their separate purposes, and they might prudently seek to avoid the violent conflict its rupture would surely entail. But once they had “conceived” and passionately embraced the moral distinction that defined them apart, the “hopes of the world” would be tragically disappointed. Jefferson understood that the Missouri controversies raised fundamental questions about the moral foundations of American nationhood. It did not follow, however, that he acknowledged the moral superiority of antislavery restrictionists. To the contrary, Jefferson was prepared to see the union collapse rather than abandon his faith in the capacity of a self-governing people—in Missouri, Virginia, and other slave states—to achieve its own redemption through a self-generated progress of moral improvement.6 To the end of his life, Jefferson called for a state-sponsored program of emancipation and expatriation, refusing to acknowledge the hopelessness of colonization. But Missouri precipitated a reorientation in Jefferson’s thinking that focused less on slaves’ removal than on the amelioration of their situation.7 By emphasizing the way in which access to new western territory would achieve a better balance between white and black populations, more healthful environmental conditions, and the progressive mitigation of a milder, more paternalistic regime of labor discipline, Jefferson and other “diffusionists” pointed the way toward positive good, proslavery arguments of a later generation.8 If slavery spread to Missouri and in fact improved the condition of slaves, why shouldn’t slavery spread everywhere? Of course, Jefferson did not reach this conclusion. But he did insist that republicanism, the only solid foundation for moral improvement, dictated that slaveholders must determine their own

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destiny—and the destiny of their slaves as well. Not surprisingly, this is precisely what happened. And not surprisingly, the pious Christians who spearheaded reform efforts in the South would soon convince themselves that the institution of slavery could be improved and, finally, that it was itself a vehicle for improvement—and therefore the Christian cornerstone of their claims to nationhood.9 Southern secessionists did not invoke Jefferson as their patron saint. Jefferson’s states’ rights constitutionalism seemed increasingly irrelevant as the union collapsed and nation building became the order of the day. It was instead Lincoln, in his determination to identify the nation with the union, who invoked “mystic chords of memory” and aligned him with Jefferson and the founders.10 Yet Jefferson’s conception of the moral foundations of American nationhood proved to be a protean idea, adaptable to the nation-making imperatives of Northerners and Southerners alike. And Jefferson’s “religious pilgrimage” from Enlightenment deism to a highly idiosyncratic and republicanized Christianity tracked the progress of democratic revivalism in the new nation that prepared righteous patriots to slaughter each other on Civil War battlefields.11

Mo r al C ommuni ty : R el ig io n and Repub li c ani sm Jefferson’s republicanism was premised on the consent of contracting individuals to secure and promote their common interests. Whenever he emphasized individual rights, however, he also invoked the communal contexts within which those rights could be sustained and perfected. The classic exposition of natural rights in the second paragraph of his Declaration of Independence thus followed an assertion of Americans’ rights as “one people” to a “separate and equal station . . . among the powers of the earth.”12 So, too, his understanding of majority rule—the foundational principle of republican government—was predicated on the claims of the living generation to selfrule. The generation, or “people” now constituting a political society, necessarily came first, making individual right claims possible. “Each generation is as independent as the one preceding, as that was of all which had gone before,” Jefferson concluded, “[T]he dead have no rights.”13 Yet if each generation was “independent,” it was bound to its successors by powerful moral obligations, to hold the “the earth . . . in usufruct,” or stewardship. Jefferson’s vision of the nation, of providing “for our descendants to the thousandth and thousandth

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21

generation,” thus stood in counterpoint to his conception of generational sovereignty. Majority rule was not an end in itself, but became morally meaningful through history. As he told Samuel Kercheval in 1816, “[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” Why, Jefferson asked, should “civilized society . . . remain ever under the regimen of their barbarous ancestors”? It was misplaced filiopietism, therefore, to treat “constitutions with sanctimonious reverence and deem them like the arc of the covenant, too sacred to be touched.”14 Jefferson was a paradoxical strict constructionist who did not revere constitutions as sacred texts. It was morally imperative to treat the works of constitution writers as if they were sacred, however, as long as they expressed the will of the living generation; it was also imperative for that generation to give way gracefully to the next, with the common estate intact and improved, so that it in turn could express its still more enlightened moral sense. “Our republicanism [is not] to be found . . . in our constitution,” Jefferson concluded, “but merely in the spirit of our people.”15 Constitution writers and constitutional majorities would often be mistaken, but their mistakes could only be seen clearly and rectified if each successive “independent” generation were free to act according to its own lights. Jefferson’s republican constitutionalism situated the citizen at the intersection of two axes, one generational—linking him to all fellow citizens at a given moment—and the other historical—linking his generation to other generations across time. His moral and religious thinking developed along the same lines. Like the republican citizen, he was an independent, autonomous individual: “I am of a sect by myself,” he wrote Ezra Stiles Ely in 1819. Refusing to identify with any sect, particularly Ely’s fellow Calvinists, Jefferson instead followed Jesus’s teachings, “to love our neighbors as ourselves, and to do good to all men.” Like the Jews, Christian sectarians punished “the sins of the fathers upon their children, unto the 3d. and 4th. generation,” making “a Babel of a religion the most moral and sublime ever preached to man, and calculated to heal, and not to create differences.” Jesus, a “benevolent and sublime reformer,” taught “only that god is good and perfect, but has not defined him.” Recognizing that “we have neither words nor ideas adequate” to the definition of God, his followers should spurn theological subtleties and mystifications. If we would “leave the subject as undefinable, we should all be of one

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sect”—the living generation of man—“doers of good and eschewers of evil.”16 Jefferson attacked Calvinist conceptions of original sin as the theological equivalent of aristocracy, the notion that “a favored few booted and spurred” were born to ride on the backs of “the mass of mankind.”17 The idea that man’s condition—spiritual or temporal—was inheritable, passing from one generation to the next, justified inequality and privilege and denied the unity of mankind. Just as the select few, by the grace of a capricious God, enjoyed the boon of eternal life, so too the “barbarous ancestors” who founded great families achieved a kind of immortality in the power and privilege of their descendants. If republican equality demanded the eradication of “every fibre . . . of antient or future aristocracy,” including the abolition of primogeniture and entail and the removal of all “feudal and unnatural distinctions,” a true Christian community demanded an end to the schisms fomented by sectarian theologians.18 Jefferson defined the old regime as an unholy alliance of “kings, nobles, and priests” that divided the people in order to rule them.19 Jefferson’s Bill for Religious Freedom, he told John Adams in 1813, “put down the aristocracy of the clergy, and restored to the citizen the freedom of the mind,” thus making possible the progressive development of that “entire union of opinion” that alone could guarantee the survival of republican government.20 Jefferson’s republic, the living generation that subjected itself to majority rule, was a moral community, independent of other generations but tied to them by awareness of its own place in history. Looking back, Jefferson drew inspiration from “primitive Christianity, in all the simplicity in which it came from the lips of Jesus.” Had it not been for the mystifications of professed Christians who distorted Jesus’s original meanings beyond recognition, Christianity “would at this day have been the religion of the whole civilized world.”21 By separating church and state and demolishing the pernicious influence of “priestcraft,” the American Revolution cleared the way for the fulfillment of Jesus’s benevolent teachings. As he looked forward to the progressive enlightenment of future generations, Jefferson envisioned the emergence of a Christian republic that would be a model for the “whole civilized world.” The return to republican first principles in Jefferson’s “Revolution of 1800” thus also promised the rout of the priests and the spread of a reformed and enlightened Christianity. “Brought to the original purity and simplicity of its benevolent institutor,” Jefferson told Moses Robinson of Vermont, Christianity “is a religion of

Thomas Jefferson’s Christian Nation

23

all others most friendly to liberty, science, and the freest expansion of the human mind.”22 Jefferson exulted in “the mighty wave of public opinion which has rolled over . . . our Republic” in 1800, a “revolution of sentiment” that promised to transform American hearts and minds.23 Far from consigning religion and politics to separate spheres under the new republican dispensation, Jefferson foresaw their ultimate convergence, for an enlightened, purified Christianity—the religion of humanity that Jesus had preached—constituted the only durable foundation for republican self-rule. Jefferson thus anticipated and embraced the democratic revivalism of the Second Great Awakening, even as he jealously guarded his own privacy and refused to publicize—much less proselytize—his own religious views. “Reading, reflection & time have convinced me it is better to be quiet myself,” he told one clerical correspondent shortly after his retirement, “& let others be quiet on these speculations.”24 Theological “speculations” were inevitably presented as dogmatic absolutes, promoting schisms that subverted community. “I inquire after no man’s” religious principles, Jefferson wrote another clergyman, “and trouble none with mine.” “We have heard it said that there is not a Quaker or a Baptist, a Presbyterian or an Episcopalian, a Catholic or a Protestant in heaven; that, on entering that gate, we leave those badges of schism behind, and find ourselves united in those principles only in which God has united us all.”25 Jefferson envisioned the future of the republic as a kind of heaven on earth. “Oceans of human blood” would no longer be spilled in the name of Christ and good citizens would recognize “how insoluble” abstruse theological “questions are by minds like ours, how unimportant, & how mischievous; & to consign them to the sleep of death.” Jefferson’s silence was, of course, self-protective, but the precociously enlightened self he was protecting had recognized the meaninglessness of theological disputation and acknowledged the “obligation of the moral precepts of Jesus.”26 His spiritual quest thus isolated him from his own less enlightened generation, even while it deepened his commitment to the conscientious, consenting, autonomous individual as the source of legitimate authority and moral improvement. Should he testify to his own faith, his words surely would be misinterpreted, thus contributing to the religious “Babel” that jeopardized the peace of the republic. Jefferson believed that that Babel would give way to harmony as Americans learned to live together, first by respecting each other’s professed beliefs and finally by discovering their common principles. “By bringing the sects together” at the University of Virginia “and mixing them with the mass of other students, we shall

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soften their asperities, liberalize and neutralize their prejudices, and make the general religion a religion of peace, reason, and morality.”27 Jefferson’s belief in moral progress, becoming manifest in the spread of more enlightened forms of Christianity, was predicated on the “reading and reflection” that enabled him both to grasp the pure, uncorrupted teachings of Jesus and to anticipate a post-theological and sectarian future in which science, religion, and republicanism converged.

Th e U nita r i an Rev i val Jefferson saw his election to the presidency as a triumph of “science & honesty” over the “bigotry in Politics & Religion” that had gripped the nation during the dark days of High Federalist ascendancy.28 The “Revolution of 1800” was a “reformation” that guaranteed the separation of church and state and prepared the way for the spread of a more enlightened, purified Christianity. Republicans would heal the wounds that “schismatising” priests had inflicted on the body politic.29 Perhaps, Jefferson hoped, the political “regeneration of Rhode Island” would mark “the beginning of that resurrection of the genuine spirit of New England which rises for life eternal.” The Republican revival began at the grass roots—“among the people, the schism is healed”—and would culminate in the demolition of church establishments.30 In the meantime, Jefferson expected “no mercy” from his embattled clerical enemies. The priests had “crucified their Saviour, who preached that their kingdom was not of this world; and all who practise on that precept,” including Jefferson, “must expect the extreme of their wrath.” If the “laws of the present day withhold their hands from blood,” the new president told his attorney general, Levi Lincoln of Massachusetts, “lies and slander still remain to them.”31 Jefferson’s highly idiosyncratic version of Christianity grew out of his identification with Jesus as a fellow reformer and was reinforced by his painstaking collection of extracts from the gospel. If Jefferson, unlike Jesus, remained mute about his own religious beliefs, it was because Jesus’s uncorrupted “system of morals” was already “the most perfect and sublime that has ever been taught by man.” Jefferson’s Jesus, a precocious Enlightenment moral philosopher, inculcated “universal philanthropy, not only to kindred and friends, to neighbors and countrymen, but to all mankind, gathering all into one family, under the bonds of love, charity, peace, common wants and common aids.” The great challenge for contemporary Christians was to strip away “the corruptions of schismatising followers,” not to

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add new layers of commentary and exegesis that would only confound and confuse Jesus’s simple message. In the privacy of his study, Jefferson eliminated rubbish from the Bible, so proving to himself that his republicanism and “primitive Christianity” were in perfect accord.32 With liberty of conscience guaranteed by separation of church and state, good republicans would follow Jefferson’s lead, embracing the tenets of an enlightened Christianity that promoted union, not schism. Preserving religious freedom was a religious and political imperative, as Jefferson told Baltimore Baptists in 1808: “[A] recollection of our former vassalage in religion and civil government, will unite the zeal of every heart, and the energy of every hand, to preserve that independence in both which, under the favor of Heaven, a disinterested devotion to the public cause first achieved, and a disinterested sacrifice of private interests will now maintain.”33 Jefferson’s alliance with the evangelical Christians who had helped overthrow the Virginia establishment and who now provided crucial support in the Republican campaign to regenerate New England was not merely opportunistic. Jefferson welcomed the emergence of a competitive religious marketplace that showed that “freedom of religion is compatible with order in government, and obedience to the laws.”34 Moreover, the revivals that transformed the American religious landscape during the Second Great Awakening promised to subvert and even reverse the historic relationship between organized religion and the old regime of hierarchy and inequality: patriotic evangelicals preached up republicanism.35 Their growing popularity was thus a hopeful augury. “No information could be more welcome,” Jefferson told Methodists in New London, Connecticut, on the eve of his retirement, than reports of “larger additions than have been usual, to their several associations, and I trust that the whole course of my life has proved me a sincere friend to religious as well as civil liberty.”36 Jefferson’s understanding of the Awakening was obviously partial, and certainly distorted by partisan political considerations. But Jefferson was heartened by evangelical challenges to the ecclesiology and theology of “established” churches, whether from a liberal, Unitarian direction or from a more populist, democratic direction, with Baptists, Methodists, Disciples of Christ, or other popular sects leading the way. Competition in the religious marketplace reinforced affinities between popular Christianity and republicanism as churches emphasized their fealty to the American Revolution and gained legitimacy by breaking institutional ties with British coreligionists.37 Revivalists expressed and exploited antiaristocratic and antihierarchical impulses

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by promoting more “democratic,” congregational forms of church governance and by simple and direct appeals that made the Christian gospel intelligible to common folk. The evangelicals’ “heart-religion” helped create a commonsensical, sentimental common ground with more rational Christians and Deists. Jefferson was not greatly concerned about the enthusiastic excesses of the revivals, as he told his old friend John Adams in 1816, for the “enthusiasm of the free and buoyant” was much preferable to bigotry, “the disease of ignorance, of morbid minds.” The Awakening promoted the “free discussion” that would enable Americans to heal schismatic wounds. Enlightened evangelists looked beyond theological distinctions that sectarians emphasized to the happy “prospect of a restoration of primitive Christianity.”38 Jesus’s “doctrines are levelled to the simplest understandings,” Jefferson wrote Salma Hale in 1818, and it was only by “getting back to the plain and unsophisticated precepts of Christ, that we become real Christians. The half reformation of Luther and Calvin did something towards a restoration of his genuine doctrines; the present contest will, I hope, compleat what they begun, and place us where the evangelists left us.”39 Jefferson’s assessment of the progress of popular Christianity in the Second Great Awakening is most conspicuous in his enthusiastic embrace of the Unitarian revival. As he told Adams, the great Unitarian Joseph Priestley had taught him “that Unitarianism was really the religion of all” in England—if only English Christians “would candidly examine themselves, and confess.” Of course, a powerful established church in England had a vested interest in promoting “Platonic mysticisms”—most notably, the nonsensical Trinitarian formula “that three are one, and one is three; and yet the one is not three, and the three are not one”—and Priestley was driven into American exile. Thanks to liberty of conscience in the United States, however, the priests’ “gossamer fabrics of factitious religion” would be swept away “and they would catch no more flies.”40 If the English were “really” Unitarian, so surely were the Americans, as they would discover through the “free discussion” that the Awakening promoted. As they sloughed off theological distinctions and returned to the eternal truths of Jesus’s teachings, republicans would recognize that they had always “really” been Unitarians, too. Jefferson conceived of Unitarianism as an all-embracing republican Christianity, not as yet another sect among many. “Be this the wisdom of Unitarians,” he enjoined Benjamin Waterhouse at Harvard, “this the holy mantle which shall cover within its charitable circumference all who believe in one God, and who love their neighbor!”41

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Unitarianism was both the starting point—the religion of humanity that Jesus had preached—and its ultimate end. As he famously wrote Waterhouse in 1822, Had the doctrines of Jesus been preached always as pure as they came from his lips, the whole civilized world would now have been Christian. I rejoice that in this blessed country of free inquiry and belief, which has surrendered its creed and conscience to neither kings nor priests, the genuine doctrine of one only God is reviving, and trust that there is not a young man now living in the United States who will not die an Unitarian.42

Jefferson’s “Unitarians” would not be the advocates of particular creeds or doctrines. Instead, he imagined enlightened and therefore creedless Christians transcending the sectarian Babel. They should not allow differences of opinion to ossify into divisive doctrinal tests, instead following the “happy example” of “the exemplary and unschismatising society of the Friends.” Alone among professed modern “Christians,” the Quakers enjoyed the “harmony, the quiet, the brotherly affections” that Jesus preached, Jefferson’s image of “heaven” on earth.43 Jefferson did not want to be drawn into doctrinal controversies, and he hoped Unitarians would pursue the same enlightened policy. Just as Jefferson suffered abuse at the hands of pseudopious critics, so too the “internecine rage of all other sects” was directed at the Unitarians.44 Unitarian “missionaries” to Virginia would doubtless “be excluded by our hierophants from their churches and meeting houses,” Jefferson told Waterhouse, “but would be attended in the fields by whole acres of hearers and thinkers.” The time was ripe for the culminating phase of revivalism in Virginia: “[T]he breeze begins to be felt which precedes the storm; and fanaticism is all in a bustle,” Jefferson wrote. “I am in hopes that some of the disciples of your institution will become missionaries to us, of these doctrines truly evangelical, and open our eyes to what has been so long hidden from them. A bold and eloquent preacher would be nowhere listened to with more freedom than in this state, nor with more firmness of mind.”45 Jefferson’s image of a Unitarian camp meeting, a perfect “storm” that would cleanse the atmosphere, was meant to be fanciful, to evoke that distant day when “freedom of religion” finally would enable “truth” to “prevail over fanaticism” and the “genuine doctrines of Jesus” were “restored to their original purity.” This would not be the work of a day. After all, Jefferson’s own religious pilgrimage had been

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the product of many hard years of reading and reflection. Enlightenment would spread unevenly. Young women, as his letter to Waterhouse suggests, were likely to remain Trinitarian after “young men” had seen the light.46 But the gender gap did not distress Jefferson: perhaps the “natural” differences between the sexes, and women’s dependence on male “patriarchs,” made more traditional conceptions of hierarchy and authority more “natural” for them. Jefferson was more concerned by the vulnerability of boys to false counsel and bad books—and premature Bible reading.47 Youth needed to be protected against theological mystifications of preachers who would lead them astray and out of the orbit of family governance where republican habits would be formed before reasoning powers had matured.48 The preachers’ “Abracadabra of the mountebanks calling themselves the priests of Jesus” would poison young minds until the “antidotes” of “education and free discussion” were generally administered.49 But Jefferson was convinced that the significance of doctrinal tests was steadily diminishing and that Christians of different denominations were beginning to recognize their similarities. In Charlottesville, Jefferson told Thomas Cooper, “Episcopalian and Presbyterian, Methodist and Baptist, meet together . . . in perfect harmony” at the county courthouse, “the common temple.”50 Perhaps it was not too much to hope that all “Christian sects would rally to the Sermon in the mount,” Jefferson told another correspondent, and “make that the central point of Union in religion, and the stamp of genuine Christianity.”51 In the meantime, the religious marketplace helped make Christians republicans, putting a premium on consent and choice and underscoring the autonomy and responsibility of the conscientious self. Even when believers continued to subscribe to the archaic tenets of a less enlightened age, the relocation of religious authority to the individual required “men to think for themselves” and to respect the liberty of conscience.52 Without religious freedom, progress would be impossible: enlightened thinkers such as Jefferson would be subjected to the inquisitorial tyranny of a repressive “public opinion” manufactured by a clerical elite seeking to regain its privileged position. Jefferson glimpsed the dawning of a new day when “the same free exercise of private judgment which gave us political reformation will extend its effects to that of religion.”53 The Unitarian revival renewed his faith in the union, leading to a cordial correspondence with former High Federalist foe Timothy Pickering. Exulting in the “progress of reason in its advances toward rational Christianity,” he told Pickering he had “little doubt that the whole of our country will soon be rallied to the unity of the Creator, and, I hope, to the pure doctrines of

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Jesus also.”54 Unitarian missionaries constituted a vanguard of popular religious enlightenment that would fulfill the American Revolution’s promise. “The pure and simple unity of the Creator of the universe, is now all but ascendant in the Eastern States,” Jefferson wrote Unitarian James Smith in late 1822: “[I]t is dawning in the West, and advancing towards the South; and I confidently expect that the present generation will see Unitarianism become the general religion of the United States.”55

C o u nter revo luti onary Tendenci es In his declining years Thomas Jefferson cherished an optimistic vision of the United States as a progressive and enlightened Christian nation. This optimism stood in sharp contrast to persistent anxieties about the success of the republican experiment. Jefferson feared that “schismatic” religious leaders, yearning for the reunion of church and state, would constitute the counterrevolutionary vanguard. Americans might celebrate the revolutionary republican legacy of 1776, but “priests” would exploit popular ignorance and credulity to carve out a privileged position for themselves and recapture the state. This is why Jefferson was so committed to separation of church and state. His “wall of separation” would further preempt future establishments— but only if vigilant republicans guarded against breaches.56 Jefferson’s anticlericalism should not be confused with a secular hostility toward religion generally. To the contrary, it was his growing self-consciousness as a “Christian” that sustained his hostility to “priests” and “priestcraft,” particularly as they took on an ostensibly patriotic “American” and “republican” coloration. The apparent paradox is that antiestablishment and anticlerical sentiment—broadly shared by dissenting groups all over the country—was itself a spur to religious mobilization and the spread of popular piety. Jefferson enthusiastically endorsed aspects of the democratizing religious ferment of the Second Great Awakening. Yet he was reflexively hostile to the “Benevolent Empire,” the aggressive evangelical front of the mainstream churches that emerged with the dismantling of the last remaining establishments in New England. State-making reform efforts of National Republicans—including the colonization of former slaves—raised the specter for Jefferson and Old Republican allies of recrudescent priestly power.57 Jefferson’s primary reflex in the period of the Missouri controversy was not therefore necessarily to defend states’ rights or the “peculiar institution,”

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but rather to contain and roll back insidious clerical influence (with its disingenuous philanthropic appeal) that threatened to reestablish the old regime. By the same token, Jefferson’s hatred of High Federalists reflected his animus toward the Calvinist Presbyterians who supposedly infested their ranks. This seemingly paranoid defensiveness accorded with the pious reflexes of anti-institutional Christians who feared assaults on their Christian liberty. In this fundamental respect, Jefferson was hardly unusual, less an interested observer of the Second Great Awakening than a participant in it, responsive as he was to some of the leading tendencies of its pietistic, anti-institutional wing. Yet whatever his affinities for Old Republicanism and varieties of “democratic” Christianity that flourished in the South, Jefferson was at the same time an exponent of the enlightened, forward-looking Christianity that New England Unitarians were supposedly beginning to preach. The vision of a triumphant Unitarian revival reminds us that Jefferson still had great hopes for the American nation, even as he aligned himself with Old Republican resistance to “consolidation.” Jefferson’s conception of American nationhood gained new power as the United States became more “Christian” in the wake of successive revivals. The rupture of the churches in the years leading up to the Civil War—Presbyterians in 1838, Methodists in 1844, and Baptists in 1845—was the leading institutional legacy of the Second Great Awakening and its extraordinary evangelical successes.58 The danger of national church organizations was that they were so vulnerable to capture by clerical elites with distinctive sectional agendas, thus jeopardizing the “peculiar” interests of sectional minorities. More ominously still, these elites would lay the spiritual foundation for “priestly” influence in a consolidated national government. In short, the complete separation of church and state that, for Jefferson, was essential to the moral and spiritual development of an enlightened, republican Christianity, remained at risk. The unholy alliance of church and state was the most fundamental threat to America’s republican experiment— and to Christianity itself. The United States became an increasingly Christian nation and, with the collapse of the union, two Christian nations because of the creative tensions of a robust religious marketplace. The institution building that brought the gospel to Americans unleashed countervailing anti-institutional and anticlerical impulses. Separation, the most fundamental Protestant impulse, was crucial to this Christianizing process.

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In the founding era, Jefferson and his fellow revolutionaries campaigned for the formal separation of church and state in order to uproot and demolish the old regime. Far from banishing religion from the “public square,” this constitutional separation unleashed a tremendous outburst of religious energy that authorized a providential conception of America’s role in world history: the new nation’s rising and expansive power was inextricably linked with the progress of Christian civilization. But the spread of Christianity through the revivals of the Second Great Awakening also illuminated important, even fundamental differences among Americans—particularly over the issue of slavery—and guaranteed that those differences would increasingly be understood in moral terms. After the War of 1812, National Republican efforts to transform the nation through “internal improvements,” including the emancipation and colonization of slaves, generated an anticonsolidationist backlash; meanwhile, the rise of a “Benevolent Empire” dedicated to the moral and spiritual uplift of the semisavage, unchurched masses led to growing tensions within, and the ultimate rupture of, national church organizations. Disunion within the Protestant denominations previewed the secession of the Southern states, and this sectional separation climaxed in yet another “awakening,” a mass political and military mobilization that enlisted faithful Christians in the sacred cause of fulfilling the promise of nationhood—and of slaughtering one another. To say that Thomas Jefferson was responsible for this tragic outcome is of course absurd. But I would insist that it is equally absurd to isolate him from the developments that culminated in the carnage of the Civil War. The stock image of Jefferson as an Enlightenment Deist who had long outlived his time by the time of his death in 1826 is belied by his own progress as a “Christian,” however idiosyncratic his faith may now seem. Disestablishment in Virginia and throughout the union cleared the way for the emergence of a reformed Christianity that was truer to Jesus’s uncorrupted teachings and therefore truer to the genius of a self-governing people. Obsessed with the insidious power and influence of “priestcraft,” Jefferson was much less concerned about the enthusiastic excesses of heartfelt piety. He welcomed the emergence of the robust religious marketplace he had helped create: competition among proliferating sects gave rise to more democratic forms of church organization, to simpler, more direct theological appeals, and to less and less emphasis on the doctrinal differences that had justified religious wars and the spilling of “oceans of human blood” throughout human history.59 In Jefferson’s hopeful perspective, a new day was dawning, and at the end of that

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day, the republican revolutionaries’ “enlightenment” and the revivalists’ “awakening” would converge. Jefferson conceived of the republic as a moral community and of the United States—the union of American republics—as a great nation with a providential role in world history. Clearly, the collapse of the Union marked the failure of that vision, and therefore “treason against the hopes of the earth.” Yet it is also true that Jefferson’s conception of the nation resonated on both sides of the great sectional divide, though Northerners and Southerners were more likely to invoke Jesus than Jefferson as they spilled each other’s blood.60

Notes 1. I rely here on Adam Jortner, “Confederate Christianity: The Case for Continuity” (unpublished paper in my possession, n.d.). 2. Second Inaugural Address, Mar. 4, 1865, in Roy P. Basler, ed., Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, NJ: Rutgers University Press, 1953–55), 8:333. 3. Roy F. Nichols, The Disruption of American Democracy (New York: Free Press, 1967). 4. Thomas Jefferson (hereafter TJ) to John Holmes, Apr. 22, 1820, in Merrill D. Peterson, ed., Thomas Jefferson Writings (New York: Library of America, 1984), 1435. 5. Ibid., 1434. For further discussion of TJ and Missouri, see my Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press, 2000), chap. 5. 6. For a fuller discussion of the moral dimensions of TJ’s republicanism, see Ari Helo and Peter Onuf, “Jefferson, Morality, and the Problem of Slavery,” William and Mary Quarterly 60 (2003), 583–614. 7. I am indebted to Christa Dierksheide’s dissertation-in-progress, “The Amelioration of Slavery in the Anglo-American Imagination, 1780–1840.” 8. On diffusion, see TJ to John Holmes, Apr. 22, 1820: “[D]iffusion over a greater surface would make them individually happier, and proportionally facilitate the accomplishment of their emancipation, by dividing the burthen on a greater number of coadjutors. An abstinence too, from this act of power, would remove the jealousy excited by the undertaking of Congress to regulate the condition of the different descriptions of men composing a State.” Peterson, Jefferson Writings, 1434. See Adam Rothman, Slave Country (Cambridge, MA: Harvard University Press, 2005), 213: “[A]melioration of slaves’ condition,” yoked “the new proslavery humanitarianism to the expansion of slavery.” 9. Nicholas Onuf and Peter Onuf, Nations, Markets, and War: Modern History and the American Civil War (Charlottesville: University of Virginia

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10.

11.

12.

13.

14. 15. 16. 17. 18. 19. 20.

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Press, 2006), chap. 10. I am indebted to Charles F. Irons, The Origins of Proslavery Christianity: White and Black Evangelicals in Colonial and Antebellum Virginia (Chapel Hill: University of North Carolina Press, 2008). On Lincoln’s appropriation of TJ, see Harry Jaffa, Crisis in the House Divided: An Interpretation of the Issues of the Lincoln-Douglas Debates (1959; Chicago: University of Chicago Press, 1982). The best introduction to TJ’s religious thought is Eugene R. Sheridan, Jefferson and Religion (Charlottesville: Thomas Jefferson Memorial Foundation, 1998), originally published as the introduction to Dickinson W. Adams, ed., Jefferson’s Extracts from the Gospels: The Papers of Thomas Jefferson, 2d ser. (Princeton, NJ: Princeton University Press, 1983). See also Charles B. Sanford, The Religious Life of Thomas Jefferson (Charlottesville: University of Virginia Press, 1984); Paul K. Conkin, “The Religious Pilgrimage of Thomas Jefferson,” in Peter S. Onuf, ed., Jeffersonian Legacies (Charlottesville: University of Virginia Press, 1993), 19–49; Edwin S. Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Grand Rapids, MI: William B. Eerdmans Publishing Company, 1996); Andrew Burstein, Jefferson’s Secrets: Death and Desire at Monticello (New York: Basic Books, 2005), chap. 9, “Disavowing Dogma,” 237–63; and my “Religion: Priestcraft, Enlightenment, and the Republican Revolution,” in Peter S. Onuf, The Mind of Thomas Jefferson (Charlottesville: University of Virginia Press, 2007), 139–68. The Declaration of Independence as Adopted by Congress, July 4, 1776, in Julian Boyd et al., eds., The Papers of Thomas Jefferson, 34 vols. (Princeton, NJ: Princeton University Press, 1950–ongoing), 1: 429. TJ to Samuel Kercheval, July 12, 1816, in Peterson, Jefferson Writings, 1402. See also TJ to James Madison, Sept. 6, 1789, in Boyd, Jefferson Papers, 14:392–98. The best discussion of this important letter is in Herbert Sloan, “The Earth Belongs in Usufruct to the Living,” in Onuf, Jeffersonian Legacies, 281–315. TJ to Samuel Kercheval, July 12, 1816, in Peterson, Jefferson Writings, 1401. Ibid., 1397. TJ to Ezra Stiles Ely, June 25, 1819, in Adams, Jefferson’s Extracts from the Gospels, 387. TJ to Roger Weightman, June 24, 1826, in Peterson, Jefferson Writings, 1517. TJ, Autobiography, Jan. 6–July 29, 1821, ibid., 44. TJ to George Wythe, Aug. 13, 1786, in Boyd, Jefferson Papers, 10:244–45. TJ to John Adams, Oct. 28, 1813, in Lester J. Cappon, ed., The AdamsJefferson Letters, 2 vols. (Chapel Hill: University of North Carolina Press, 1959), 2:389–90, my emphasis; Second Inaugural Address, Mar. 4, 1805, in Peterson, Jefferson Writings, 523.

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21. TJ to John Davis, Jan. 18, 1824, in Adams, Jefferson’s Extracts from the Gospels, 413. 22. TJ to Moses Robinson, Mar, 23, 1801, in Peterson, Jefferson Writings, 1086–87. See Robert M. S. McDonald, “Was There a Religious Revolution of 1800?” in James Horn et al., eds., The Revolution of 1800 (Charlottesville: University of Virginia Press, 2002), 173–98. 23. TJ to Joseph Priestley, Mar. 21, 1801, and TJ to Elbridge Gerry, Mar. 29, 1801, ibid., 1086, 1088. 24. TJ to James Fishback, Sept. 27, 1809, J. Jefferson Looney et al., eds., The Papers of Thomas Jefferson, Retirement Series, 4 vols. (Princeton, NJ: Princeton University Press, 2004–ongoing), 1:564–65. 25. TJ to Miles King, Sept. 26, 1814, in Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, 20 vols. (Washington, DC; Thomas Jefferson Memorial Association, 1903–4), 14:198. 26. TJ to James Fishback, Sept. 27, 1809, in Looney, Jefferson Papers, Retirement Series, 1:564. 27. TJ to Thomas Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings, 1465. 28. TJ to Joseph Priestley, Mar. 21, 1801, ibid., 1073. 29. TJ’s Syllabus of an Estimate of the Merits of the Doctrines of Jesus, enclosed in TJ to Benjamin Rush, Apr. 21, 1803, ibid., 1125. 30. TJ to Gideon Granger, May 3, 1801, in Lipscomb and Bergh, Writings of Jefferson, 10:259–60. 31. TJ to Levi Lincoln, Aug. 26, 1801, ibid., 10:275–76. 32. TJ’s Syllabus of the Doctrines of Jesus, Apr. 21, 1803, in Peterson, Jefferson Writings, 1125. 33. TJ to the Members of the Baltimore Baptist Association, Oct. 17, 1808, in Lipscomb and Bergh, Writings of Jefferson, 16:317–18. 34. TJ to the General Meeting of Correspondence of the Six Baptist Associations Represented at Chesterfield, VA, Nov. 21, 1808, ibid. 16:320–21. 35. My discussion here is heavily indebted to Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), and Richard Carwardine, “‘Shall a Nation Be Born at Once?’ Evangelical Religion in the Construction of the United States, 1776–1865” (Birkbeck Lectures, University of London, 2004). 36. TJ to the Society of the Methodist Episcopal Church at New London, Feb. 4, 1809, in Lipscomb and Bergh, Writings of Jefferson, 16:332. 37. On the “Americanization” of the Baptists, see Irons, Origins of Proslavery Christianity; for an excellent discussion on the Methodists, see Carwardine’s first lecture in “‘Shall a Nation Be Born at Once?’” 38. TJ to Dr. Benjamin Waterhouse, July 19, 22, 1822, in Adams, Jefferson’s Extracts from the Gospels, 407. 39. TJ to Salma Hale, July 26, 18[18], ibid., 385. 40. TJ to John Adams, Aug. 22, 1813, in Cappon, Adams-Jefferson Letters, 2:368.

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41. TJ to Benjamin Waterhouse, June 26, 1822, in Peterson, Jefferson Writings, 1459. 42. Ibid. 43. TJ to Rev. Thomas Whittemore, June 5, 1822, in Adams, Jefferson’s Extracts from the Gospels, 404. 44. Ibid. 45. TJ to Dr. Benjamin Waterhouse, July 19, 22, 1822, in Adams, Jefferson’s Extracts from the Gospels, 407. 46. “There is much fanaticism” in Richmond, TJ wrote in 1822, “but chiefly among the women.” TJ to Thomas Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings, 1464. On TJ’s attitudes toward gender differences and religion, see Jan Lewis, The Pursuit of Happiness: Family and Values in Jefferson’s Virginia (New York: Cambridge University Press, 1983), chap. 2. 47. TJ to Peter Carr, Aug. 10, 1786, in Peterson, Jefferson Writings, 902: “Read the Bible then, as you would read Livy and Tacitus.” 48. Religious differences across racial lines were rationalized by slaveholders in similar ways; by the same logic, their responsiveness to the slaves’ enthusiastic heart-religion reinforced the sentimental notion of shared family values and sensibilities. 49. TJ to Francis Adrian Van der Kemp, July 30, 1816, in Adams, Jefferson’s Extracts from the Gospels, 374–75; TJ to John Adams, Aug. 1, 1816, in Lipscomb and Bergh, Writings of Jefferson, 15:58–59. 50. TJ to Thomas Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings, 1464. See Mark Beliles, “The Christian Communities, Religious Revivals, and Political Culture of the Central Virginia Piedmont, 1737–1813,” in Garrett Ward Sheldon and Daniel L. Dreisbach, eds., Religion and Political Culture in Jefferson’s Virginia (Lanham, MD: Rowman & Littlefield, 2000), 3–40. 51. TJ to George Thacher, Jan. 26, 1824, in Adams, Jefferson’s Extracts from the Gospels, 414. 52. TJ to Margaret Bayard Smith, Aug. 6, 1816, in Lipscomb and Bergh, Writings of Jefferson, 15:59–61. 53. TJ to John Davis, Jan. 18, 1824, in Adams, Jefferson’s Extracts from the Gospels, 413. 54. TJ to Timothy Pickering, Feb. 27, 1821, in Lipscomb and Bergh, Writings of Jefferson, 16:323–24. 55. TJ to James Smith, Dec. 8, 1822, ibid., 15:409. See also TJ to Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings, 1465: Unitarianism “will, ere long, be the religion of the majority from north to south, I have no doubt.” 56. TJ to Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association, Jan. 1, 1802, ibid., 510. For the restored text of TJ’s original draft and commentary, see James H. Hutson, “Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,”

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57.

58.

59. 60.

Peter Onuf William and Mary Quarterly, 3d ser., 56 (1999): 775–90. On church and state issues, see Daniel L. Driesbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002). See also Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 144–89. On the connections between National Republicanism and colonization see Tony Iacarrino’s “Masters of the Republic: Virginia and the National Contest over Slavery in the Early Republic,” unpublished ms. in author’s possession. Here I rely on Carwardine, “‘Shall a Nation Be Born at Once?’” Lecture Three; and Mitchell Snay, Gospel of Disunion: Religion and Separatism in the Antebellum South (1993; Chapel Hill: University of North Carolina Press, 1997). TJ to James Fishback, Sept. 27, 1809, in Looney, Jefferson Papers, Retirement Series, 1:564. Onuf and Onuf, Nations, Markets, and War, esp. chap 7.

Chapter 2

Beyond Locke, beyond Belief The N exus o f Free E x erci se a nd Separ atio n o f Chu rch a nd Stat e

Jack N. Rakove

One of the great pleasures of writing history is to capture a thinker

in mid-thought, recognizing a problem, sensing an opportunity, and grappling with a solution. One such historical moment occurred in the fall of 1776, when Thomas Jefferson took his seat in the first legislature elected under the new constitution, with its accompanying Declaration of Rights, that Virginia had adopted in the late spring, scant weeks before the Continental Congress approved the Declaration of Independence. If Jefferson could have had his way, he would have been back in sleepy Williamsburg, his old college town, working on the constitution, rather than stuck in bustling Philadelphia, slaving away on the document that established his eternal fame. In Jefferson’s advanced view, the formation of new governments had become “the whole object of the present controversy” with Great Britain.1 He regarded those governments not simply as means to wage revolutionary war against an evil empire, but as a fulfillment of the ideals that the republican enthusiasm of the moment had released. High among his own ideals was the liberation of individuals from the various forms of dominion that he and other enlightened thinkers regarded as the depressing legacy of centuries of religious intolerance, persecution, and a corrupting alliance between church and state.

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The enlightened thinkers whom Jefferson esteemed included John Locke and his pupil, Anthony Ashley Cooper (third Earl of Shaftesbury and grandson of Locke’s patron, the first earl). Jefferson turned (or returned) to their writings as he worked on his bill “for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship.” We know this because his reading notes on Locke’s Letter concerning Toleration and Shaftesbury’s Letter concerning Enthusiasm are preserved in his papers at the Library of Congress. Near the end of the notes on Locke, Jefferson summarized the categories of persons whom the English philosopher thought could be legitimately denied toleration because they entertain “op[inio]ns contrary to those moral rules necessary for the preservation of society.” Though Locke defined these categories in terms of the principles such people held rather than their avowed adherence to particular creeds, he effectively denied toleration to Catholics, atheists, and those “who will not own and teach the duty of tolerating all men in matters of religion.” Jefferson then added his own revealing comment on Locke: “It was a great thing to go so far (as he himself sais of the parl[iament] who framed the act of toler[atio]n) but where he stopped short, we may go on.”2 Asking what it meant to “go on”—to go beyond Locke and late seventeenth-century ideas of toleration—is where we capture the moment of opportunity that Jefferson hoped the Committee on Religion would seize. It was on this committee that Jefferson first met James Madison, beginning their half-century political alliance and friendship. Madison, too, thought that the time had come to “go on.” Back in May 1776 he had proposed a key change in the Religion Clause of the Declaration of Rights. The original draft read “that all men should enjoy the fullest toleration” in their religious opinions. Madison favored a broader dispensation and offered more expansive language: “that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience.”3 Embedded in this amendment were two shifts—one pronounced, the other more subtle—from the original article. The first, and more explicit, was a shift from the language of toleration, implying a residual authority in the state to extend or withdraw a privilege, to the language of entitlement; that is, to the idea that the right to religion inhered in the individual, not the state. The second, and more latent, shift hinged on the definition of “exercise.” Was this single word synonymous with belief, defined as an interior state of mind or conviction? Or did it portend something broader: a right to practice, and thus to behave (and not merely think) in ways consistent with, religious beliefs?

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The very fact that Madison proposed this amendment indicated that the constitution makers were sensitive to the nuance of language. How one stated a right mattered. Yet there were limits to how precise such statements could be. Declarations of rights, like the paradigmatic one the Virginians adopted, could only espouse principles. They could not lay down doctrines or determine how such principles were to be implemented. That was the task that awaited the Committee on Religion in the fall of 1776. Jefferson threw himself into this task with a fervor that, if not itself religious, at least expressed a powerful political and moral commitment. At a moment when the American cause seemed to be verging toward military defeat, his most urgent priority was to pursue the agenda of the radical Enlightenment by disestablishing the Church of England and grounding the free exercise of religion on the broadest foundation possible. At first glance, Jefferson’s commitment might therefore appear to have been a distraction from more pressing concerns. But since 1769 the treatment of dissenting Presbyterians and Baptists had become an increasingly contentious issue in Virginia politics. In protest against the prosecution of their ministers for unlicensed preaching, the dissenting sects repeatedly petitioned the Virginia assembly to extend to them the same principles that underlay the parliamentary Act of Toleration of 1689. It was the confinement in 1774 of “5 or 6 well meaning men in close Goal [jail]” for unlicensed preaching that led the young Madison, liberally educated at the College of New Jersey (now Princeton University), to rail against the embarrassing religious prejudices of his Virginia neighbors. “I have squabbled and scolded, abused and ridiculed so long about it,” he wrote his college friend, Billy Bradford, but to so little “purpose that I am without common patience.”4 Bradford was lucky enough to live in Pennsylvania, a land of true religious liberty; Madison was marooned in benighted Virginia, where “[t]hat liberal catholic and equitable way of thinking as to the rights of Conscience, which is one of the characteristics of a free people and so strongly marks the People of your province is but little known among the Zealous adherents to our Hierarchy.”5 Even in the spring of 1774, Madison doubted that the dissenters’ petitions had much chance for success. By the time the Committee on Religion began its work in the fall of 1776, however, the balance of political forces within the newly independent commonwealth had begun to shift. For one thing, the course of the Revolution itself gave Virginia leaders political incentives to take the dissenters’ concerns seriously. For another, taking inspiration and encouragement from the Declaration of Rights, the dissenters

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themselves began flooding the legislatures with petitions for religious liberty and disestablishment. At the minimum, these petitions called for lifting the various restrictions that had previously been imposed upon them. But the petitions also presumed that the state could indeed “go on” to adopt a more radical position. Some attacked the basic idea of establishment itself, in terms that contemplated placing Christianity on the same plane as other faiths. Take the petition from Hanover County, which Jefferson’s great modern editor, Julian Boyd, singled out for special mention in his introductory note to the 1776 reading notes on religion. All the arguments that operated “in favour of establishing the Christian religion,” these humble Hanoverians declared, could also “be pleaded with equal propriety for establishing the Tenets of Mahomed by those who believe the Alcoran.’”6 But so bald a statement of religious equality had to contend with the basic fact that Virginia had been an Anglican province for a century and a half, and that its dominant leaders came from the same political class that routinely sat on their parish vestry. As a result, the adoption of the Religion Clause of the Declaration of Rights, far from being the end of the matter, marked only the beginning of a struggle that continued, off and on, for another decade, when the defeat of the General Assessment bill of 1784–85 paved the way for the enactment of the Statute for Religious Freedom that Jefferson had originally drafted in 1779. The great issue in this ongoing struggle was not over the extent or nature of freedom of conscience. It was, rather, about establishment, or more specifically, over the extent to which support of either the previously established Anglican church or all identifiable denominations (or faiths) could remain a legitimate end of public policy. Or to put the point more directly, it was easy for Virginians to agree that individuals had a fundamental right to believe what they wished in matters of faith, to convey those beliefs to others, and to be free from the legal obligation to contribute to the support of other institutional churches. But that concession of an individual right did not unilaterally resolve broader questions about the extent to which public support for religion might still be conducive to the collective public good. There is, after all, no necessary inconsistency between the broad recognition and protection of individual rights of conscience and the pursuit of various forms of religious establishment. As long as religious dissenters are free to believe and practice as they wish, and to do so as a matter of inherent right (and not mere toleration), a state (whether the modern nation-state or a mere member-state of the American republic) can still have reasonable grounds for bestowing

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legal benefits on religious institutions, especially if it does so without conveying particular privileges to favored denominations. This disjunction between the easy acceptance of freedom of conscience and tougher questions about establishment has a modern analogue in the constitutional jurisprudence of the Religion Clause of the First Amendment. Its language is far terser than the comparable Virginia article that Madison helped to craft in 1776. All it says is that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although each half of the Religion Clause has predictably evolved its own line of jurisprudence and thus of critical commentary, modern scholars generally see the Establishment Clause as the greater source of constitutional perplexity and vexation. This is not to deny that the Free Exercise Clause has also produced noteworthy decisions and its own body of doctrinal uncertainty. There is an important line of cases in this area, beginning with the Supreme Court’s explicit and pioneering appeal to the authority of Jefferson and Madison in Reynolds v. U.S. (1879), the Mormon polygamy case that laid down the essential distinction between belief and behavior while equating the “free exercise” of religion with the former.7 Equally noteworthy were the Flag Salute cases of the early 1940s, in which the Court, after unwisely overturning lower-court decisions exempting school-age Jehovah’s Witnesses from a compulsory patriotic ritual, had to back down when its decision led to a virtual open season in persecutions of an unpopular religious minority.8 But perhaps by definition, Free Exercise Clause decisions typically involve minorities at the margins of society, seeking to ensure their ability to pursue a practice that is essentially private, even if it runs afoul of some public regulation. Its heroes are lone actors like the Gobitis children, Lilian and William, the young Jehovah’s Witnesses who first challenged the right of a school district to compel their performance of the flag salute. Establishment Clause cases, by contrast, are typically more public. They are more likely to involve the expenditure of tax dollars that we have all contributed to the treasury or the conspicuous expression of religious sentiments in public places where we all pass. Free Exercise cases are often about the right of cranky individuals to be left alone; Establishment cases ineluctably raise issues about the entanglement of public funds and private sensibilities.9 This disparity between the two branches of the Religion Clause implicates a broader aspect of the Revolutionary generation’s engagement with issues of religious freedom. Broad acceptance of the individual’s inherent right to freedom of conscience was by far the easier part of the “struggle” to attain full religious liberty—so easy, in fact,

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as to require hardly any struggle at all. For all intents and purposes, Americans already treated the right to believe as a natural right—truly natural, indeed, because belief itself was (and is) best defined as an inner state of mind, a balancing of conviction and doubt, that each of us has to work out to our own satisfaction. The real struggle after 1776 lay in the realm of establishment; that is, in the question of whether public support for religion should continue at all, and if so, on what basis: by maintaining traditional support for a favored church, or providing support for all identifiable denominations and sects. In the much-studied case of Virginia, this disjunction between the easy case of freedom of conscience and the harder case of establishment can be readily illustrated by the contrast between the quick and seemingly uncontroversial approval of Madison’s amendment in May 1776 and the decade-long struggle over general assessment bills that followed. The depth and duration of the ongoing struggle over establishment suggest that the prior, easier triumph of freedom of conscience had only a limited impact on the more difficult aspects of redrawing the line (or raising the wall) between church and state. In the standard language of historical causation, acceptance of conscience as a natural or fundamental right may have been one necessary cause of the progress of disestablishment, but it was hardly sufficient. Indeed, as a recent surge in historical writings has indicated, the idea that Americans of the Revolutionary War and postwar eras were actively contemplating a “high-wall” separation of church and state carries less scholarly certainty today than it enjoyed a generation or so ago. Jefferson’s purpose in using this metaphor in his famous 1802 letter to the Baptists of Danbury, Connecticut, has become an independent source of controversy. Not unlike the vexed question of his paternity of the children of his slave, Sally Hemings, the surviving physical evidence of this letter has been subjected to the best analysis modern technology can provide.10 It is not my purpose in this chapter to review the evidence for or against broad readings of the Danbury letter as a smoking pistol of a text capable of definitively establishing just how one should read the Sage of Monticello’s famous metaphor. In my view, the evidence of Jefferson’s beliefs, concerns, and attitudes appears more than sufficient to demonstrate the depth of his conviction about the general principles of separation and disestablishment, as well as his consistency over time. This is neither a novel opinion nor a bold one.11 What does bear closer examination, however, is the nexus within which ideas about both the free exercise of religion and its disestablishment intersected

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with the emergence of distinctively American constitutional ideas and understandings. The right to conscience and the free exercise of religion may seem to resemble other rights, and the “Congress shall make no law” formula of the First Amendment covers other forms of expression than religious belief. On closer examination, however, the Religion Clause and the values it represents diverge in important ways from other rights, and this divergence has important implications for the very concept of limited government itself. In my view, the freedom of conscience should be seen as the paradigmatic individual right, the one that places the greatest value on our subjective capacity to make fundamental choices, free from political constraint. It is in fact a more powerful source of the concept of a fundamental right to privacy than the companion rights (such as security against arbitrary search and seizure) that are more frequently invoked as sources and expressions of that value. And the idea that government can entirely abjure its authority to regulate religion, as such, marks the point where the general concept that all the powers of government ultimately derive from a sovereign people was converted into the recognition that there were entire realms of human activity that government could no longer be allowed to regulate. The starting point for recovering this nexus of constitutional values lies in Locke’s distinction between the “Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like,” on the one hand, and the right to maintain one’s own religious beliefs, on the other.12 The former were all alienable: not, of course, in the absolute sense of being wholly transferred to an arbitrary, tyrannical government against which individuals could have no recourse, but in the more limited sense of being entrusted to a government that could legitimately regulate their possession and enjoyment. But for Locke, as for his colonial disciples, the right to believe could never be alienated, even if one somehow could wish or attempt to do so. Jefferson’s summary of Locke’s position in his reading notes captures the essentials of the argument but also catches the key distinction: the magistrate’s jurisdiction extends only to civil rights and from these considerations: the magistrate has no power but what the people gave him. the people have not given him the care of souls because they could not. they could not because no man has right to abandon the care of his salvation to another.

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Jack N. Rakove no man has power to let another prescribe his faith. faith is not faith without believing. no man can conform his faith to the dictates of another.13

Strictly speaking, the right to believe is inherently unalienable because its exercise is involuntary or (we could say) natural. Whether one might freely wish to or not, the right to believe can never be transferred to another because belief is ineluctably an interior state of mind. Jefferson summarized Locke thus: “the life & essence of religion consists in the internal persuasion or belief of the mind.” Locke’s fuller definition is worth citing: “true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding,” Locke added, “that it cannot be compelled to the belief of anything by outward force.”14 No amount of punishment imposed in the name of maintaining orthodoxy can alter this philosophical and psychological truth. Three observations about Locke’s position are in order. First, Locke’s formulation comes close to inverting the basic principle of religious polity that is conventionally regarded as the great legacy of the Peace of Westphalia (1648) and its effort to restore peace to Europe after the Thirty Years War: cuius regio, eius religio (whose rule, his religion). As a matter of prudent statecraft, that principle offered a promising formula for preventing religious differences within individual countries from escalating into overt conflicts among the emerging sovereign nations of the post-Westphalian world. But it offered little protection for the religious dissenters whose plight increasingly concerned Locke during the 1680s, first in England and then during his exile in Holland, which coincided with the revocation of the Edict of Nantes in 1685 and the surge of Huguenot exiles from France. Second, Locke’s definition of religion in terms of inner belief and conviction seems inherently and profoundly Protestant. Even if he is right about the nature of belief and the futility of coercion, one can imagine other definitions of religion in which the performance of good works, observance of liturgy, and most important, obedience to a communal religious law (say, halacha or sharia) prove equally essential, if not more so. Third, and consistent with the previous point, Locke’s position did not represent the genuinely radical philosophical alternative espoused by Spinoza and his intellectual followers. Locke’s theory of toleration “revolves primarily around freedom of worship and theological discussion,” Jonathan Israel observes, “placing little emphasis on freedom of thought, speech, and persuasion beyond what

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relates to freedom of conscience which, in principle might be Jewish or Mohammedan as well as Christian.”15 And, as previously noted, Locke’s position did not require tolerating Catholics and atheists, two suspect categories of persons whose rights the commonwealth had good cause to restrict. When Jefferson and Madison proposed to “go on” beyond Locke a century later, they were implicitly moving toward a Spinozist position, yet still operating within the essentially Protestant assumptions about religiosity that they shared with Locke.16 Even those enlightened Americans who were moving toward deism, or who had grown skeptical about the divinity of Jesus or the truth of revelation, could not avoid the pervasive Protestant religiosity of late-colonial society— a society that had become, in Richard Hofstadter’s apt phrase, “a concentrated repository of the Protestant ethic.”17 However we assess the content of Jefferson’s and Madison’s individual theologies (and the former’s is far more accessible than the latter’s), we have to recognize that they operated within much the same conceptual framework as had Locke.18 Madison sounded distinctly Lockean notes in his 1785 Memorial and Remonstrance against Religious Assessments, written during the culminating and decisive campaign against the general assessment bill that would provide public support for all Christian ministers. Here, again, religion is defined in terms of “the conviction and conscience of every man.” The right to exercise these dual aspects of belief is declared to be “unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” But Madison then offers a further explanation of the “unalienable” nature of this right that seems to go beyond the Lockean formulation, and in terms that present a fresh puzzle of its own. The freedom of conscience that “is a right towards men,” Madison adds, has a second attribute; it is also a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe; And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.

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Jack N. Rakove We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.19

Madison’s conception of religious duty as being “precedent, both in order of time and in degree of obligation, to the claims of Civil Society” admittedly poses some difficulties, especially if it is read to imply that obedience to religious laws trumps the legal claims of “civil society.” That clearly cannot have been Madison’s intended meaning. But the difficulty disappears if the duty owed is treated not as a matter of choosing between God and Caesar, but (again) as a question of what one chooses to believe about the essentials of faith, the nature of conversion, the number and efficacy of the sacraments, the balance between faith and works in the quest for salvation, the sacerdotal authority of priests and ministers, and all the other questions that Christians had been disputing for centuries and that Protestants in particular would continue to bicker over as long as they allowed an empowered laity to read Scripture for themselves. For Madison, these were all healthy questions precisely because they were incapable of resolution. Allowing well-meaning Protestants to continue to bicker over them, he was coming to realize, was the best way to ensure the multiplicity of private religious preferences that would provide the best security for collective religious liberty. Madison did not rely on this argument alone to sustain his claim for a total exemption of religion from the cognizance of civil society. The Memorial and Remonstrance was conceived as a political petition, not a philosophical statement, and its fifteen points sometimes embody a “belt and suspenders” approach to building a political coalition. Early on, for example, Madison appealed to the memory and spirit of 1776 to remind his readers that “it is proper to take alarm at the first experiment on our liberties.” That attitude of inherent suspicion, after all, was “one of the noblest characteristics of our late Revolution.” Still, it seems significant that a document designed to attack an explicit issue of establishment—the use of public funds to support all Christian ministers on a nonpreferential basis—begins with a restatement of the basic Lockean position on freedom of conscience. Madison recurred to this motif in later points, repeatedly treating religion as a matter of voluntary choice and affiliation, undertaken by individuals who are perfectly competent to ponder and resolve questions of faith and who need no assistance from public authorities who are perfectly incompetent to add anything to the individual’s decision. Thus the fifth point of the Memorial dismisses the notion that “the Civil Magistrate

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is a competent Judge of Religious Truth” as “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.” The sixth point similarly argues that far from depending on “the powers of this world” for the dissemination of its message, true Christianity “both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”20 Jefferson’s Statute for Religious Freedom, finally enacted in the wake of the defeat of the general assessment, adopts a similar argument. It, too, begins with a rolling affirmation of the sovereignty of individual belief: “Whereas almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness.”21 For Madison as for Jefferson, then, the easy acceptance of freedom of conscience was not some mere antecedent condition from which one might or might not proceed to attack the more difficult matter of establishment. The attack on establishment flowed logically, perhaps even necessarily, from the commitment to freedom of conscience. There might be other good reasons of state to preserve some form of establishment, including legitimate doubts as to whether, absent some publicly supported encouragement or obligation, many citizens would actually take the initiative to exercise their religious conscience at all. But the greater the confidence one expressed in the efficacy of individual conscience, the more problematic any notion of establishment became. Embedded in this same conception of conscience as the sole property of individuals was a more profound argument about the nature of rights and the individuals who bear them. Today we casually and uncritically assume that the revolutionaries and constitutionalists of the 1770s and 1780s were, like us, strongly committed to the defense of individual rights and liberties. They had an ornery libertarian streak, with a bit of Daniel Boone lurking in each of their liberty-loving breasts. This conception seriously mistakes the way in which the American colonists thought about the basic problems of identifying and protecting rights prior to the Revolution. Stated in constitutional terms, the problem of rights was less about protecting individuals than about protecting the people as a whole. The greatest source of danger to rights was believed to come from the unchecked and concentrated authority of the crown, and the best protections for rights lay in maintaining the authority of representative legislatures and juries to prevent executive officials from acting unilaterally and arbitrarily. In this sense, by way of illustration, the right of a citizen to serve on a jury was more important than the right to be tried by one, and juries

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were seen not as objective fact finders but as independent repositories of legal knowledge and constitutional responsibility. So, too, representative assemblies were not regarded, in the language of modern political science, as preference-aggregating institutions where an array of interests “wheeled and dealed” in the stuff of distributive justice. They existed first and foremost to prevent the crown from making law (and especially from imposing taxes) without the duly registered consent of the people’s representatives.22 Of course, liberty-wielding individuals would be the beneficiaries of any system of constitutional restraints that prevented the most dangerous branch of government from acting arbitrarily. But liberty was a catchall word that was used so freely and ubiquitously and even flabbily in Anglo-American political discourse as to be devoid of precise meaning. As the legal historian John Phillip Reid has noted, liberty was best defined in opposition to its evil twin “licentiousness,” one of those eighteenth-century words that has largely lost its meaning today, whereas back then it conveyed a strong sense of the moral judgment that any community could legitimately exercise in order to distinguish acceptable from impermissible norms of behavior.23 And of course the rights that the colonists were primarily concerned with protecting during their decade-long constitutional quarrel with Britain were collective rights of self-government, as pursued through the autonomy of locally accountable institutions. Individuals, again, would benefit from the preservation of their authority. But it was the collective right of self-government that was most directly endangered. In the spectrum of rights and liberties to be protected, the one that stands out as most individualistic or, we might say, liberal (in the traditional meaning of the term) and subjective, then, is freedom of conscience: the right to believe what one chooses to believe, or what one finds most persuasive, about the nature of religious truth, the path to salvation, the authority of revelation, and so on. It is the one right that places the greatest premium, the greatest emphasis, on the individual’s capacity for judgment, and assumes that each individual is morally and intellectually competent to decide the most difficult questions of faith. Perhaps more important, freedom of conscience is the one right that most strongly denies or negates the capacity of the state to oversee the activity in question. Lacking any superior capacity or means to ascertain religious truth, public authority can add nothing of value or substance to an individual’s own judgment; it is wholly superfluous. Freedom of conscience thus presupposes the existence of a “zone of privacy” in the interior life of each of us where the state cannot intrude.

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In that sense, it also differs fundamentally and powerfully from all the other rights to which we accord constitutional protection. Even when those rights rest upon some conception of individual autonomy and privacy, they typically presuppose that the state has an authority and duty to act, but that in doing so it must conform to standards that are constitutionally authorized and legally defined. The right to be secure against unreasonable search and seizure does not protect our lodgings or even our body cavities from the prying eyes and ears and the probing fingers of the state. It merely says that the state has to have probable cause, reasonable suspicion, or some compelling interest of public safety, subject to judicial scrutiny and legislative oversight, before it applies its instruments of surveillance, and that in doing so it must meet nonarbitrary or noncapricious standards of review. The concept of freedom of conscience says, by contrast, that the state has no authority to act at all. Freedom of conscience requires absolute exemption from public scrutiny and regulation; other rights call instead for the application of fair standards and regular procedures. The recognition of this fundamental and radical difference between this one right and all the others meriting or clamoring for constitutional recognition may help to clarify that strange passage in the Memorial and Remonstrance where Madison imagines the duty individuals owe to the Creator as being somehow prior to other obligations. Treating freedom of conscience as a genuinely natural right placed it on a par with the familiar trinity of life, liberty, and property that Locke and other rights-minded thinkers had invoked. But the conventional story about those rights said that their unrestrained but precarious exercise was what we surrendered in exchange for the greater security of life in civil society under settled laws. Those absolute natural rights, though fundamental to society and government, were transformed into their legally regulated counterparts. As such, their actual exercise was embedded in the dense framework of law, in its multiple forms, and thus in the practices of juries and legislative assemblies, the dual institutions of representative government that Anglo-American constitutional theory made responsible for the protection of rights. And under the prevailing theories of legislative supremacy that Americans inherited from the Glorious Revolution, there was no realm of behavior that the authority of law could not reach. To go beyond toleration and accept the free exercise of religion as a natural right, however, was to identify one essential area of behavior where the legislative power would no longer operate. The acceptance of individual sovereignty over religious convictions necessarily entailed a derogation from the plenary authority of the legislature. Legislative

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supremacy no longer meant legislative omnipotence. The enjoyment of life, liberty, and property still depended on the framework of legal regulation; the free exercise of religion presumed that law would be silent in the face of conscience. A wall had been erected to fence off this one vital area of the human personality from public intrusion, supervision, and punishment. But how about protecting it from public support? Why would one need a wall of separation to prevent government from acting neutrally or beneficently to encourage religion—not by coercion, not by punishment, not by monitoring, but simply by making available more of a good thing? That was the entirely reasonable line of thought that lay behind the various proposals for a general assessment in support of all denominations that continued to be made in Virginia after 1776, and that ended only when Madison’s legislative success in turning back the last such proposal led to the approval of the Statute for Religious Freedom. A long answer to this question would require explaining the politics of coalition building among the various denominations of late eighteenth-century Virginia. An even longer explanation would stress the competitive impetus that disestablishment gave to the same denominations to develop their own strategies for converting believers and mobilizing supporters in the post-Revolutionary spiritual marketplace.24 A shorter answer can simply focus on the link between the logic of conscience and the rationale for disestablishment. Once one accepts the necessary sufficiency of the individual conscience to the pursuit of religious truth and conviction, and the essentially voluntary nature of belief itself, arguments for public support of religion appear superfluous. Against the image of the lone truth seeker who has no choice but to look inward for his or her convictions, the idea of creating lines of mutual dependence between church and state becomes subject to the familiar criticisms of entangling alliances and mutual corruption that Jefferson adduced in his Notes on the State of Virginia and in the stirring preamble to the Statute for Religious Freedom. Establishment is unnecessary becomes conscience is inalienably sufficient. Far from being a benign prologue to the more difficult struggle over disestablishment, the easy acceptance of freedom of conscience is better understood as both a necessary condition and even a compelling argument in itself for the separation of church and state. As this chapter also suggests, the religion question has important implications for the constitutional thought of the Revolutionary era more generally, especially for the idea that rights are primarily the property of

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autonomous individuals deserving protection from both the coercive authority of the state and the preferences of popular majorities. At the same time, we must recognize that when Jefferson and Madison proposed to “go on” beyond Locke, they were still operating within an intellectual tradition that was fundamentally Protestant in character—that is, one that equated religious identity and practice primarily with an inner state of belief, not an outward performance of duties. Those of us who may be inclined (as I am) to think there are universal lessons to be derived from their ideas still have to wrestle with that central fact.

Notes 1. Jefferson to Thomas Nelson, in Julian Boyd et al., eds., The Papers of Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950), I:292. 2. Ibid., 548; John Locke, Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New Haven, CT: Yale University Press, 2003), 245. 3. For the relevant drafts, see William T. Hutchinson et al., eds., The Papers of James Madison (Chicago: University of Chicago Press, 1962), I:172–75. 4. Madison to William Bradford, January 24, 1774, ibid., 106. 5. Madison to Bradford, April 1, 1774, ibid., 112. 6. Boyd, et al., Papers of Jefferson, I:526. 7. Reynolds v. U.S., 98 U.S. 145 (1879); Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002). 8. Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Lawrence: University Press of Kansas, 2000). 9. This paragraph obviously oversimplifies in an impressionistic way a far more complex set of issues. For a good general introduction to the interpretation of the Religion Clause, see John Witte, Jr., Religion and the American Experiment: Essential Rights and Liberties (Boulder, CO: Westview, 2000). 10. See James Hutson, “Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,” William and Mary Quarterly, 3d ser., 56 (1999), 775–90, the introductory essay in a Forum joined by another half dozen scholars. Hutson’s main substantive point is that neither as a Virginia official nor as an American president did Jefferson regard the physical use of public buildings for religious services as a violation of either his own Statute for Religious Freedom or the Establishment Clause, as long as all denominations enjoyed equal access and

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11.

12. 13. 14.

15. 16.

17. 18.

19.

20. 21. 22.

23. 24.

Jack N. Rakove government was not responsible for paying clerical salaries or endorsing doctrinal creeds. Thus see the contribution to the Danbury letter Forum of Robert O’Neil, “The ‘Wall of Separation’ and Thomas Jefferson’s Views on Religious Liberty,” ibid., 791–94. Locke, Letter Concerning Toleration, 126. Boyd, et al., Papers of Jefferson, I:545. For ease of reading, I have expanded Jefferson’s contractions in his notes into full words. Locke, Letter Concerning Toleration, 127. For the comprehensive analysis of Locke’s changing ideas of toleration, see John Marshall, John Locke, Toleration and Early Enlightenment Culture (New York: Cambridge University Press, 2006). Jonathan I. Israel, The Radical Enlightenment: Philosophy and the Making of Modernity, 1650–1750 (Oxford: Oxford University Press, 2001), 265. I note in passing that there seems to be little evidence that American thinkers read or had any serious knowledge of Spinoza—or that at least is the impression I retain after consulting such authorities as Bernard Bailyn, Noah Feldman, Robert Middlekauff, and James Turner on this question. That observation seems both unsurprising, given Spinoza’s background and status, yet also noteworthy as a comment upon the provincialism of eighteenth-century American thinking. Richard Hofstadter, America at 1750: A Social Portrait (New York: Alfred Knopf, 1971), 293. Compare Thomas E. Buckley, “The Political Theology of Thomas Jefferson,” in Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (New York: Cambridge University Press, 1988), 75–107, with the immediately following essay by Lance Banning, “James Madison, the Statute for Religious Freedom, and the Crisis of Republican Convictions,” ibid., 109–38. As a fellow Madison biographer, I agree with Banning that “Madison’s own faith is something of a puzzle.” Memorial and Remonstrance against Religious Assessments, June 1785, in Jack N. Rakove, ed., James Madison: Writings (New York: Library of America, 1999), 30. Ibid., 31-32. Note Jefferson’s rhetorical use of the biblically resonant “hath” and “beget.” I draw here on the much more extended argument about constitutional rights made in Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred Knopf, 1996), 288–338. John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 11, 32–38. On this point see, especially, Nathan Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989).

Chapter 3

“S eparation” Abroad How L o ng the Jeff erso ni a n Sha d ow?

Robert M. O’Neil

When the United States Supreme Court revisited the question of

whether a U.S. citizen may challenge in court the constitutionality of “faith-based initiatives,” the Jeffersonian legacy was omnipresent. Indeed, the central issue of that case vividly illustrated the singular approach of the United States Constitution to the relationship between religion and government.1 American taxpayers have not been allowed to challenge in federal court the use of their tax payments, with one notable exception—when that challenge arises under the Establishment Clause of the First Amendment and claims a breach of the principles of separation.2 Addressing almost any issue about religion and government under the American Bill of Rights is inherently more difficult and more complex than a comparable analysis in almost any other legal system, and for one simple reason—the duality of religious freedom guarantees contained in the American First Amendment. The focus of this chapter is that dual system of safeguards for religious liberty—its origin and place in the Jeffersonian cosmos, its domestic interpretation, and its international parallels or emulations.

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Je f f er s o n’s D ual G uar antees of Reli g i ous Freedom: A Domestic Perspective What emerges most clearly from the formative period of the U.S. constitutional guarantees for religious freedom is that Thomas Jefferson and James Madison deemed seriously inadequate any formal safeguards that would ensure only “free exercise”—that is, embracing only the rights of religious belief, worship, and expression. Although the impetus for embedding religious liberty in the Bill of Rights had unmistakably free-exercise roots—even more for Madison than for Jefferson—their shared concern about excessive entanglement of church and state played an indispensable role in the formative process. Indeed, the major documents to which we turn even today in seeking the Framers’ guidance—Jefferson’s 1786 Statute of Virginia for Religious Freedom3 and Madison’s 1785 Memorial and Remonstrance against Religious Assessments4—focused chiefly on the hazards of undue proximity between (and interdependence of) government and religion. The catalyst for both documents was the protracted controversy over the established church in Virginia and particularly Patrick Henry’s proposal to replace the unitary Anglican system with a multiple establishment. To that suggestion Jefferson and Madison both responded skeptically, insisting that only complete disestablishment (which the General Assembly eventually decreed) would adequately protect religious liberty in the Old Dominion. For Jefferson’s Virginia statute, the evil to be addressed was unmistakable: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern.” In short, guaranteeing a citizen’s right to espouse religious values and to worship (or not worship) as he chose would only partially protect religious liberty. Only ending the established church would fully safeguard this vital human liberty. The Framers’ concerns, moreover, went far beyond the individual worshipper or preacher. In their view, both government and religion stood to suffer from too close and comfortable a degree of proximity, albeit in different ways. In Madison’s words, the history of established churches demonstrated that such relationships, “instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Indeed, quite practical concerns were closely related, though

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seldom articulated—notably a growing perception that clergy who were state employees and could thus count on being paid regularly by government, regardless of their piety or the quality of their pastoral eloquence and counseling, tended to become lazy and indifferent to their vestries and congregations in matters both spiritual and temporal. The concern was not only for the “church” side of the equation, but quite as much for the “state”; religious establishment had not proved to be in any respect “necessary for the support of Civil Government.” Indeed, the lesson of history was that “it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects.” The latter reference vividly reminds one of the constant interaction and inescapable interdependence in the Jeffersonian-Madisonian view of free exercise and nonestablishment. Protecting religious worship and belief was of course essential, but even the colonial experience proved that it was not enough. The two spheres must be kept a safe distance apart by what Jefferson would later call, in the most memorable sound-bite of the early nineteenth century, a “wall of separation.”5 That the First Amendment to the new Constitution should thus contain two separate clauses on religion—the one protecting “free exercise” and the other barring any “law respecting an establishment of religion”—is therefore hardly surprising. Such a dual guarantee has posed no end of interpretive issues that we cannot probe here, but merely note—whether, for example, “religion” must mean the same thing in both clauses, or whether there could be a practice that the Free Exercise Clause protects even though the Establishment Clause would not preclude government support of that practice. Nor do we know why the Framers used “abridging” as the proscribed governmental act when protecting free speech and press, but turned to “prohibiting” when it came to religious exercise. Much less do we have any insight into the intended meaning of the somewhat tortured phrase “law respecting an establishment of religion”; even late drafts of the Bill of Rights used more familiar terms such as “no religion shall be established by law.”6 Strangely, the version that eventually prevailed did contain ambiguities and posed quandaries—whether, for example, the Framers meant only to protect from federal interference those state establishments that persisted through the first third of the nineteenth century. Simpler language would have avoided such ambiguities. Finally, there remains to this day an understandable skepticism over the degree to which the religious freedom language of the First Amendment, as ratified by the states in 1791, was actually designed to incorporate the thinking of Jefferson and Madison. Supreme Court

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majorities have never hesitated to credit those two eminent Virginians with inspiring the constitutional safeguards of religious freedom. As Justice Hugo Black reaffirmed in 1947, “The provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute [of 1786.]”7 Yet there have been a few judicial demurrers along the way; thoughtful opinions by the late Chief Justice William Rehnquist in 19858 and by Justice Clarence Thomas a decade later9 argued that their colleagues had much too casually inferred an identity of views between the Jeffersonian-Madisonian impetus and the relevant First Amendment provisions. The conventional wisdom, however, overwhelmingly favors such an assimilation, although interpretation has not always conformed quite as comfortably. In actual practice, United States courts have always been mildly uncomfortable, at the very least, with the dual guarantees of religious freedom. Although Free Exercise issues reached the Supreme Court as early as 1878, it was not until 1947—more than a century and a half after its adoption—that the Establishment Clause received its first definitive interpretation at that level.10 In that initial exposition, the justices were as closely divided as nine judges could be—and so the high Court has continued to split on most of the major issues that have arisen under the religious freedom clauses. Mercifully few of the high court’s cases have compelled a reconciliation of the Free Exercise and Establishment clauses; most constitutional challenges to government action that affects religion have either arisen unambiguously under one clause or the other, requiring no recourse to the other clause, or they have invoked both clauses in parallel by challenging practices that are claimed to abridge Free Exercise while breaching the mandated separation of government and religion. Yet there have been a few perplexing cases in which the two clauses might bear quite differently on a challenged practice, and it is in just those cases that serious analytical problems could not be avoided. In 1963, for example, the Supreme Court’s major religious freedom ruling invalidated public school prayer and Bible reading on Establishment Clause grounds, even though challenges in the lower courts have also invoked Free Exercise, and the high court could have relied concurrently on both clauses.11 During that same term, however, the justices agreed to review state policies that denied unemployment compensation to devout workers who lost or left their jobs because of conflict between work schedules and the dictates of their faith.

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The majority ruled that imposing such a disqualification violates the worker’s religious freedom, at least absent a showing of compelling governmental interest. Justice William Brennan, speaking for himself and six others, also rejected the state’s claim that to create such an exemption would unduly favor the religiously unemployable person (as against persons who were unavailable for myriad secular reasons) and would therefore violate the Establishment Clause. Brennan wrote that “the extension of unemployment benefits [in such a case] . . . reflects nothing more than the governmental obligation of neutrality in the face of religious differences.”12 Justice Potter Stewart, while concurring in the disposition of the case, wrote separately to convey his profound disagreement with the Brennan opinion on this latter point: “With all respect,” he declared in a separate opinion, “I think it is the Court’s duty to face up to the dilemma posed by the conflict between the Free Exercise Clause of the Constitution and the Establishment Clause as interpreted by this Court. It is a duty, I submit, which we owe to the people, the States, and the Nation, and a duty which we owe to ourselves.”13 Justice John Marshall Harlan, who dissented from the judgment, was no less troubled by the ease with which the majority had reconciled the contending constitutional claims. Though he conceded that creating such a dispensation for the unemployed worshipper might be “a permissible accommodation for the State, if it chose [to create it],” it was quite a different matter to mandate such treatment as the majority had done. Such a mandate, Justice Harlan insisted, effectively favored one clause over the other since the “State is constitutionally compelled to carve out an exception.”14 Later that decade, in the course of resolving challenges by conscientious objectors to the application of a statutory exemption for persons morally opposed to war, the justices again declined to address, much less resolve, the latent conflict between Free Exercise and Establishment. They went no further than to recognize this elusive tension between solicitude for persons of faith, a clause that seemed to compel special treatment for the religiously based claim, and an Establishment Clause that cast grave doubt on the validity of such solicitude—at least in the absence of a square holding that Free Exercise required such a dispensation. Such an uneasy accommodation persisted for many years. In the late 1990s, the justices struck down an act of Congress that defined “free exercise of religion” more protectively than the Supreme Court’s own view of that First Amendment liberty. For most members of the Court, such a judgment rested sufficiently on a finding that Congress simply lacked the constitutional power to superimpose its own

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interpretation of a basic Bill of Rights guarantee, because such authority resided firmly with the judiciary.15 But for Justice John Paul Stevens, the statute also contained a very different constitutional infirmity; for him, granting such a special “preference for religion, as opposed to irreligion, is forbidden by the [Establishment Clause of the] First Amendment.”16 In short, in Justice Stevens’s view, Congress could not constitutionally extend special protection to a religious claimant in excess of the protection that a similarly situated nonreligious claimant would receive—and that seemed to him precisely what Congress had done in the Religious Freedom Restoration Act (RFRA). Congress was not, however, to relinquish its solicitude for the religiously motivated objector. Soon after the invalidation of its first statutory effort, a bipartisan majority crafted a somewhat narrower protective measure aimed at two designated sectors of government policy and practice. Called the Religious Land-Use and Institutionalized Persons Act (RLUIPA), this new law invoked a wholly quite different constitutional basis for congressional action and targeted only zoning laws and treatment of prisoners, two areas in which extensive testimony had detailed disproportionate claims of religious discrimination or differential treatment. As the early challenges to this new law reached the courts, Justice Stevens’s dilemma could no longer be avoided. But by the time the first such case had been docketed in the Supreme Court, the daunting task of reconciling free exercise and nonestablishment had already returned in a different form. The issue was one that would have been familiar to Jefferson and Madison—the constitutionality of a Washington State scholarship program that denied funding only to otherwise eligible students who had chosen to pursue graduate degrees in divinity or theology in preparation for the ministry. Supporters of this exclusion insisted that, in a federal system, states may be more restrictive in matters of church and state than federal law requires, if they chose (as several American jurisdictions have chosen) to erect a higher wall of separation between government and religion. A majority of the justices accepted this argument. In one of his last opinions before retirement, Chief Justice Rehnquist noted the latent conflict between the two First Amendment guarantees, but recalled that “we have long said that ‘there is room for play in the joints’ between them. In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.”17 Curiously, no case citation or other invocation of legal authority followed the quoted phrase; what the chief justice confidently declared “we have long said” in this regard was in fact a new

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and bold statement—possibly implicit in the outcome of earlier cases where the two clauses had been juxtaposed, but never explicit until the spring of 2004. Affirmation of “play in the joints” was soon to follow in the specific context of the “institutionalized persons” protections of RLUIPA. Sustaining a prisoner’s claim that certain restrictions upon his religious activities and denial of access to sacred publications violated rights that Congress had recently reinforced, the Court held decisively that the new law embodied a “permissible government accommodation of religious practices,” quite consistent with the previous term’s “play in the joints” notion.18 This Solomonic resolution would undoubtedly please Jefferson and Madison, although they might be dismayed by the protracted and tortuous course the courts had followed in reaching it. Their insistence that religious liberty could be adequately protected only through the twin guarantees embodied in the First Amendment surely could not have been meant to disable one arm of government from doing what the other was compelled to do at the behest of a religious objector. Although the Framers left us no explicit guidance on how to interpret these two paradoxical provisions, they surely implied a design that religious freedom would only be secure if safeguards of both types were formally enshrined in the new Constitution and were enforced as parallel guarantees. The wonder is that it took so long for our courts to recognize and condone that elusive “play in the joints,” which the Framers might have characterized in less vernacular terms but would have undoubtedly acclaimed. A brief summary of the current state of U.S. law in this area might be helpful before looking abroad. Could our public life be characterized as completely devoid of any evidence of “an establishment of religion”? A fair assessment must yield a negative answer, and for myriad reasons. For one, clergy enjoy a special place under our laws—carrying out vital delegated governmental tasks, such as solemnizing marriages, in ways that exclude not only nonbelievers, but also a substantial segment of the community of faith who do not ordain clergy and thus are unable to take advantage of special relationships. Over the years, especially in the past decade, our Supreme Court has found various forms of accommodation between government and religion to be compatible with the Establishment Clause. It has sustained Sunday-closing laws that reflect an unmistakable religious inspiration,19 and allowed government to create educational vouchers that may be spent for tuition and other costs at church-related parochial schools,20 to cite but two

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of myriad areas in which challenged proximity between church and state has been found not to cross the “wall of separation.” Public museums and galleries abound with works of art that reflect and depict unmistakably religious themes, and many public ceremonies (including congressional and state legislative sessions) open with invocations of divine guidance, all with the Supreme Court’s imprimatur.21 Thus, while anything resembling a formally established and publicly supported church would be anathema in the United States, complex and beneficial relationships between government and religion have been deemed surprisingly compatible with the First Amendment.

Je f f er s o n’s D ual G uar antees of Reli g i ous Freedom: An Inter national Perspective All too briefly, the foregoing survey provides limited insight into the U.S. domestic experience, guided as it has been from the outset by a distinctively dual approach to religious freedom. Our major focus now turns abroad, in a quest for comparable indicia of the impact of the Jeffersonian philosophy on religious freedom elsewhere. We have at least anecdotal evidence of what was undoubtedly the earliest foreign response to the adoption of the Virginia statute in 1786. Thomas Jefferson was on diplomatic mission in Paris throughout this period, leaving James Madison back in Richmond, not only as floor manager for such legislation, but also as principal amanuensis for the cause. Madison’s immediate report to his absent colleague of their signal victory in securing legislative endorsement for the nonestablishment principle went curiously unanswered for some months. Jefferson’s only excuse was that “an unlucky dislocation of my right wrist has disabled me from using my pen.” William Lee Miller provides a more credible—and quite delightful—insight into the cause for the infelicitous injury: “Feeling frisky one day in Paris when out walking with Maria Cosway during their flirtation, he had attempted to jump a fence, and failed.”22 When the wrist had healed enough to permit Jefferson to resume correspondence, he apprised Madison of the earliest international response to news of America’s earliest declaration of church-state separation: “The Virginia Act for religious freedom has been received with infinite approbation in Europe and propagated with enthusiasm. I do not mean by the governments, but by the individuals which compose them. It has been translated into French and Italian, has been sent to most of the courts of Europe, and . . . is appearing in most of the publications respecting America.” Jefferson’s triumphal report

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from Paris concluded a coda that now seems exuberant if not hyperbolic: “It is honorable for us to have produced the first legislature who had the courage to declare that the reason of man may be trusted with the formation of his own opinions.”23 Such euphoria might seem excessive until one recalls that, approaching his death, Thomas Jefferson asked to be remembered by the American people for only three accomplishments (formally inscribed on his tombstone): drafting of the Declaration of Independence, founding of the University of Virginia, and authorship of the Statute of Virginia for Religious Freedom. Serving as governor, secretary of state, and president were, in his words, “things the people did for me” in contrast to the three (and only three) formally celebrated “things I did for the people.” Thus the high expectations he held for the statute, once enacted by the General Assembly, acquire a vital explanatory context from his own self-assessment. Given Jefferson’s initially high hopes for the international impact of the triumph of separation in Virginia, the actual experience of the ensuing two and a quarter centuries would profoundly have disappointed him. There are, to be sure, nations in which a surviving establishment coexists with substantial religious freedom, though typically (as in the United Kingdom) because of strong safeguards in the courts and surely not because of any mandated separation of church and state. There are other countries where secular principles dominate, as in Turkey, though without a consistently secure and pervasive condition of religious liberty. In the end, there appear to be only two foreign nations in which both free exercise and nonestablishment both receive explicit constitutional commitment—France and Australia—though without actual protection of Jeffersonian proportions in either system. The experience of both those nations does, however, deserve analysis in some depth before consigning Jefferson’s international aspirations to failure. The relationship between government and religion varies so widely, even across Western Europe, that generalization is hazardous, if not impossible. Indeed, no two nations approach this issue in precisely the same manner. Scholars who have studied the varied European structures describe a spectrum in formal policy or constitutional law, ranging from the mandated secularism of France and Turkey to the formal establishment of the United Kingdom.24 Yet the actual experience across this spectrum does not necessarily accord with the formal provisions, and in some cases it may actually run quite counter to inferences that a casual observer would draw solely from reading the relevant charter provisions. While most European nations have

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adopted constitutional safeguards of their own for religious worship and expression, and the European Convention on Human Rights and Fundamental Freedoms expressly protects the free exercise of religion, the current pattern with respect to relations between church and state continues to defy classification. The spectrum begins with such conventional establishments as those that survive in some Scandinavian nations, though even that once-homogeneous region is now confused by the termination of the ancient Swedish establishment early in 2000, and most recently by the mid-December 2006 action of the General Synod of the Established Lutheran Church of Norway in voting overwhelmingly to end 470 years as the official state religion of that country. Moreover, the pace of change and evolution appears to be accelerating in the twenty-first century. Worldwide Religious News reported such trends near the end of 2006 under the revealing headline, “Church-State Relations Across Europe Heading Toward ‘New Landscape.’”25 Then there are other markedly different patterns that strike foreign observers as anomalous. In Italy, the Roman Catholic Church ceased only in 1984 to be the official state religion, under a constitution that declares that “State and Catholic Church are each within its own ambit, independent and sovereign.” Although the Spanish constitution confidently declares that there is no established church, the Spanish government has entered a concordat with the Catholic Church that provides to that religious body financial and other privileges and perquisites that are unavailable to any other community of faith. While Ireland (despite its overwhelmingly Catholic population) has no established church, the Irish constitution begins by declaring that “in the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Ireland, humbly acknowledge all our obligations to our Divine Lord, Jesus Christ.” The document further recites that the “State acknowledges that the homage of public worship is due to Almighty God. It shall hold his name in reverence and shall respect and honour religion.” Nonestablishment, even disavowal of an establishment, clearly does not compel national denunciation of religious influence or inspiration as a force in public life.26 An American’s casual inclination to equate nonestablishment with religious freedom—deriving that equation logically enough from Jeffersonian principles—must be rigorously resisted. So enticing a correlation, in fact, proves surprisingly tenuous at both ends of the spectrum. On one hand, Turkey’s mandated secularism by no means guarantees religious liberty as we understand it—nor for that matter

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does it ensure even the independence of the dominant Muslim clergy and their followers. A New York Times editorial, prompted by Pope Benedict XVI’s historic 2006 visit to Turkey, observed that “Turkey’s rigid secularism has been a central tenet of the republic since its founding—and all too often has led to repressing minority rights and religious freedom.” The editorial adds that this “rigidity is now giving way—due in large part to the reforms required to meet the membership criteria of the European Union.”27 Much the same could be said of France, although we defer specific analysis to a later and separate section. Meanwhile, the actual condition of religious freedom is surely as secure in the United Kingdom as in almost any other European nation, despite the survival of what may be the most traditionally and formally established church. The relationship is anomalous; while the Church of England is not financially supported by the government, both Crown and Parliament must approve any major change in church policy or practice. The ordination of women, for example, required both parliamentary and royal approval. Bishops are appointed by the queen, as supreme governor of the Church of England, on recommendation of the prime minister, who chooses from two names that have been submitted by the Crown Appointments Commission (a church body). Every British prison must have its own Anglican chaplain. Religious education curricula are approved by local Standing Advisory Committees (one of which is reserved for the Church of England, while all other denominations are grouped together in the other committee—thus ensuring an effective veto to the Church of England). Recognizing such anomalies, a British commentator marshaled some of the cogent reasons why becoming a secular nation might better serve the future of the United Kingdom by asking in a Sunday Times column, “Is It Time to Take God Out of the State?”28 Yet the European Court of Human Rights has consistently declared that establishment of a particular faith, per se, does not violate the religious freedom provisions of the European Convention—holding, for example, that Austrian authorities could take into account the dominance of Roman Catholicism in the region, where the issue had arisen in applying the national film code, without abridging religious liberty.29 Indeed, two international scholars have thoughtfully argued that establishment and religious liberty are not antithetical, but that a benign (albeit close) relationship between church and state may actually foster—and certainly need not subvert—freedom of conscience and worship.30 While that thesis may transcend the issue

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of mere compatibility, it does serve to remind those who approach this nexus with a Jeffersonian bias that there are other, starkly different, perspectives. The special cases of two nations merit closer scrutiny. Indeed, France and Australia seem to be the only two nations that formally mandate the separation of church and state while concurrently ensuring protection for free exercise. It was from Paris, of course, that Thomas Jefferson orchestrated the Virginia General Assembly’s adoption of his Statute for Religious Freedom. And it was from Paris that he wrote to his floor manager in Richmond, James Madison, of the “infinite approbation” with which the Virginia statute and its dual guarantees for “the reason of man” had been received—though he was careful to stress that such approbation came from ordinary citizens and not from government. Nonetheless, the formal parallels between France and the United States are striking and nearly unique. Nonestablishment and separation of church and state are mandated by the statute of 1905 in terms that resemble, though they do not precisely parallel, the pertinent portions of the American First Amendment. Closely analogous to the U.S. Free Exercise Clause is the provision of the French Constitution of 1958 that declares that the republic respects all [religious] beliefs. Thus far, Jefferson might find in contemporary France some confirmation of his hopes for international accord, even though the French term laicite, or “secularism,” is nowhere enshrined in the Bill of Rights—nor for that matter anywhere else in U.S. law. Yet as the two systems have evolved, the differences have become far more striking than the similarities. Quite revealing is the critical comment of Professor Dominique Custos, a French scholar of public law, who notes that “despite the shared principle of secularism, the strong dichotomy between belief and expression underlying the French law of 2004 [banning the wearing of conspicuous religious symbols by public school students] is predominantly perceived in the U.S. as a frontal violation of liberty of conscience [as applied to female Muslim students wearing head scarves in public].” Professor Custos adds that “at the root of French laicite there is a strong logic of structural separation between Church and State” that is not violated by governmental regulation of such religiously mandated symbolism as the wearing of visible head coverings.31 She cautions, however, against finding or inferring overly neat transatlantic parallels: “Through laicite, France exhibits a uniqueness which distinguishes it not only from those countries that combine protection for religious pluralism and a state

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religion, but also from those which embrace separation of Church and State with an asserted sense of accommodation.”32 A candid U.S. observer should add that the recent course of U.S. law on such matters would not be entirely congenial to Jefferson. From the first Free Exercise decision in 187833 to a change of heart in 1963,34 the U.S. Supreme Court also recognized a distinction between belief or expression and religious practice, finding only the latter to be clearly protected by the Free Exercise Clause. Since 1990, following another change in the dominant view of the high court, religious liberty claims are given deference or primacy only upon proof that the government has singled out religious activity for special treatment, and not where religious practice suffers from the incidental effect of a religiously neutral law.35 While the latter distinction has recently been mitigated by congressional intervention, to which the courts have eventually deferred, the basic status of Free Exercise law has not been consistently faithful to the standards set forth by Jefferson and Madison at the framing of the First Amendment. In the specific matter of religious garb, quite specifically head coverings mandated by faith, one must also note that the U.S. Supreme Court—even during the benign period from 1963–90—upheld an Air Force policy that barred an Orthodox Jewish officer from appearing in court with a yarmulke covering his head, as his sacred beliefs clearly mandate.36 One might also concede in candor that our Supreme Court sustained the constitutionality of Sunday-closing laws against challenges from both Establishment and Free Exercise perspectives37—noting the exquisite irony that the courts of our northern neighbor, though lacking comparably explicit constitutional guarantees of either type, have found Canada’s provincial Sunday laws to impose “indirect coercion on Sabbatarians and others who might wish to conduct business on the Christian Sabbath.”38 Nonetheless, returning to France, Professor Custos’s perception seems accurate: U.S. legal scholars deem the rigorous enforcement of the French head-scarf ban discordant to Jeffersonian values and precepts. Whether generalization from this most recent example is entirely fair or sufficient, the fact remains that French and U.S. perspectives do diverge in important if subtle ways. Were Jefferson to return to Paris and there observe the current situation, after despairing somewhat of how the dual guarantees of religious liberty have fared in his own country, he would be especially troubled by current conditions in the nation that served for many years as his adopted home, and always a source of ideological inspiration.

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This discussion leaves Australia as the only other foreign nation where parallel guarantees of free exercise and nonestablishment find express constitutional recognition. There the parallel is even more striking than it is with France. Section 116 of the Australian Constitution, ratified in 1901, explicitly endorses both principles: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” Curiously, there is no analogous provision designed to protect free speech or press; lest this omission be attributed to inadvertence, one should note that Australia’s voters have several times rejected comparably explicit guarantees of free expression, leaving it to the high court to protect those interests—as it finally did in 199239—under the implications of more general constitutional provisions. Superficially, then, one might expect to find in Australian jurisprudence the closest approximation to U.S. principles of religious freedom. Once again, actual practice falls disappointingly short of such hopes. Australian courts and scholars have persistently stressed significant disparities between the precise language of the First Amendment’s Establishment Clause and Section 116.40 First is a vital difference in scope and coverage. While (despite the textual focus on “Congress”) the U.S. Bill of Rights has for two-thirds of a century been construed as applying no less to the states and localities than to the federal government, Australia’s express reference to “the Commonwealth” has consistently been held to limit Section 116’s reach to acts of the national Parliament, giving it no effect whatever upon policies and practices of the states or cities. Indeed, it has been suggested that this particular clause might even be superfluous or redundant, since “establishing religion” appears nowhere among the federal Parliament’s enumerated powers, so that a violation simply could not occur through legislative action for reasons even more basic than the constraints imposed by Section 116. Other notable contrasts distinguish the two constitutions and their pertinent provisions. An Australian scholar notes that “the difference in terminology is significant”: While the U.S. Bill of Rights enjoins any “law respecting an establishment of religion,” Section 116 bars the Commonwealth of Australia from enacting “any law for establishing any religion”—suggesting that the Australian provision “is aimed at any type of assistance which tends to promote the interests of one church or religious community over those of another, but not, unlike the First Amendment, at prohibiting the government from aiding

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religion in general.”41 One might also observe that, in contrast, the sparest possible interpretation of the U.S. Establishment Clause— effectively confining its reach to federal government interference with the surviving established state churches—would be inconceivable in Australian jurisprudence. Indeed, a parallel issue simply could not have arisen there, and surely not in barely a century, which is the time since Australia’s adoption of its current constitution. The number of Section 116 cases reaching Australia’s high court has, not surprisingly, been modest. Two major rulings a quarter century ago largely shape the field. Both cases involved challenges under Section 116’s Establishment Clause to federal programs of financial aid to church-affiliated parochial schools, a subvention created in 1969 in response to intense political pressure from the religious community. Although Roman Catholic schools were the overwhelming beneficiaries of this program, any community of faith that maintained such schools would theoretically have been entitled to comparable support. The high court majority flatly rejected the challengers’ claim that such direct financial support violated Section 116.42 Lest there be any doubt of the majority’s awareness of U.S. Supreme Court rulings that would have yielded a contrary result, the lone Australian high court dissenter (Justice Murphy) urged upon his colleagues a strict theory of separation between church and state, relying largely on U.S. judgments that the rest of the court had simply dismissed as inapposite. For the majority, the reach of Section 116 fell far short of the challenged government aid program: “By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favors, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship.”43 So sweeping a distinction essentially put to rest any hope that Section 116 would be construed, even with regard to Australian federal programs, in a way that could closely parallel the First Amendment’s Establishment Clause. There remains for discussion a major gloss on the Australian Supreme Court’s approach to church and state issues. “Purpose” emerged as a key desideratum in the parochial school aid case. Merely providing benefits to religion—even substantial benefits—was deemed to be a permissible effect of serving a valid secular purpose through religious means. Apart from expressly favoring one particular faith against others, all that would be barred under Section 116 (though no Australian case seems to have found such a violation) would seem to be a program whose primary purpose was to benefit religious institutions

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rather than to use those institutions as a means to achieving a secular goal. The depth and nature of the legislative history that such a finding would demand suggests the remoteness of the prospect that an Australian federal program would be declared unconstitutional under Section 116. Though none was needed, recent events have provided further and dramatic evidence of the disparity of U.S and Australian views in this area. In response to former Prime Minister John Howard’s urging, the Australian Department of Education, Science, and Training late in 2006 appropriated some $90 million to enable public, private and church-related schools to employ in-house chaplains. The religious affiliations of those chaplains were to be determined by the local school authorities; their presence in the schools would be designed (in the government’s view) to augment secular counseling services by providing “spiritual and religious advice, support, and guidance.”44 Moreover, explained the prime minister, all prospective school chaplains will be “formally approved by the government because we’re going to provide funding.” Although the announcement of this program did evoke substantial opposition from secular forces in Australia—concerned not only about an unprecedented degree of direct government involvement in religious matters, but also fearing serious risks of divisiveness in choosing clergy—there appears to have been neither a legal challenge to its inauguration nor a likely prospect that any such challenge would succeed in the courts should it be pursued. Yet any such program would be so clearly contrary to U.S. principles of separation of church and state that even advocates for a greater religious presence in the nation’s schools would be most unlikely even to seek such largesse. Before despairing entirely of an international acceptance of the Jeffersonian vision of religious liberty, a brief visit to Canada might offer a slightly more hopeful perspective. Before one assumes that Canada has slavishly followed its neighbor to the south in the shaping of civil liberties, it is worth noting some striking differences that have developed in closely related areas. Canadian courts have sustained “hate speech” laws in both criminal and civil contexts, in stark contrast to the insistence of U.S. jurisprudence that such restraints on speech violate the First Amendment.45 Canada also permits suppression of sexually explicit material on the basis of its demeaning effect upon and deep offense to women, despite the seemingly clear language of Canada’s constitutional safeguard for free expression.46 Canadian courts may grant damages to a person claiming a deprivation of privacy interests simply by having been photographed without consent

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in a public place, even though U.S. law would not allow such redress consistent with free speech and press. In these and other respects, Canada and the United States, though sharing a common commitment to free expression, have diverged quite sharply and visibly in the past two decades. Thus any notion that Canadian judges would intuitively and uncritically emulate their U.S. counterparts in defining religious liberty should be set aside. When it comes to religious freedom, however, the parallels are far closer. A review of challenges to Sunday-closing laws reveals a Canadian view considerably more protective of the Sabbatarian’s rights than that of U.S. law—at least as of 1961, when the issue was last before the Canadian Supreme Court. Such issues reach Canadian courts under the Charter of Rights and Freedoms, which contains an “override” or “limitations” clause that may trump a basic safeguard under certain conditions (as with hate speech or sexually demeaning material). When it came to the Canadian Sunday-closing laws, however, the Supreme Court of Canada found that such bans inflicted on nonSunday worshippers “a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians.” While such non-Sunday adherents were not legally compelled to attend church or to pray on Sunday, they were effectively required to “remember the Lord’s Day of the Christians and keep it holy.” They were also “prohibited for religious reasons from carrying out activities which are otherwise lawful, moral, and normal.” Thus the non-Sunday worshipper was, in the view of Canada’s highest court, being indirectly compelled to observe a religious practice not of his or her own choosing—and that type of coercion was held to abridge the Charter.47 In a similar vein, Canadian courts have held that public school students may not be forced to initiate action in order to be excused from religious exercises, since such intervention might embarrass or stigmatize the dissenting student.48 Thus schools could not justify such exercises simply by offering an opt-out procedure to objecting students—nor in the view of Canadian courts could a town council escape an adverse judgment under the Charter for mandating recital of the Lord’s Prayer at the start of council meetings.49 While the public school case is consistent with U.S. Supreme Court precedent, as the town council prayer case comports with lower-court rulings, what is striking is the further reach of Canadian religious freedom law to invalidate Sunday-closing laws, which remain presumptively valid in the United States. Nonetheless, the doctrine of “indirect coercion” has received substantial recognition in U.S. law and has actually commanded a majority in recent cases that struck down clergy-led

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prayers at public high school graduation ceremonies50 and studentled but officially sanctioned prayers at the start of Friday night football games.51 This brief international tour brings us back at length to Thomas Jefferson. We need to recall that the platform for his initially euphoric view of the Virginia statute’s potential was not Richmond, but Paris—a perspective from which, at that time, there seemed ample basis for his boundless optimism. The prospect of intense controversy over Muslim head-scarves in French public schools lay centuries in the future. That reality reminds us of two other elements that Jefferson would surely wish us to note in assessing this part of his legacy. First, that even in 1786 the United States was already a more religiously diverse and complex nation than most other countries would become for at least a century—or ever, in many cases. Second, he would wish us to note that we inherited from the Framers what has become, essentially by default, by far the world’s oldest written constitution. The guarantees of the First Amendment were ratified a bit more than 215 years ago; their terms have not been altered in any respect, despite intense pressures to ban flag burning, or return prayer and Bible reading to public school classrooms, or validate pursuit of political “subversives.” Thus Jefferson’s final word to those who seek in the twenty-first century to assess the impact of his views on church and state would be a plea for patience and understanding, reminding us that he and his fellow Framers crafted a document not only for a uniquely complex and disparate nation, but also for all time and human experience. That any other country should have emulated our example thus seems highly improbable—as Jefferson and Madison would have anticipated.

Notes 1. Hein v. Freedom from Religion Foundation, 127 S. Ct. 2553 (2007). 2. Flast v. Cohen, 392 U.S. 83 (1968). 3. See Lance Banning, Jefferson & Madison: Three Conversations from the Founding (Madison, WI: Madison House, 1995), 116–17. 4. Banning, Jefferson & Madison, 118–24. 5. For an excellent account, see William Lee Miller, The First Liberty (Washington, DC: Georgetown University Press, 1986), 1–75. 6. See Richard Labunski, James Madison and the Struggle for the Bill of Rights (New York: Oxford University Press, 2006), 223. 7. Everson v. Board of Education, 330 U.S. 1 (1947). 8. Wallace v. Jaffree, 472 U.S. 38 (2985) (Rehnquist, J., dissenting). 9. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (Thomas, J., concurring).

“Separation” Abroad 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

41.

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Everson v. Board of Education. Abington School District v. Schempp, 374 U.S. 203 (1963). Sherbert v. Verner, 374 U.S. 398, 409 (1963). Ibid. at 416 (Stewart, J., concurring). Ibid. at 422–23 (Harlan, J., dissenting). City of Boerne v. Flores, 521 U.S. 507 (1997). Ibid. at 537 (Stevens, J., concurring). Locke v. Davey, 540 U.S. 712, 718 (2004). Cutter v. Wilkinson, 544 U.S. 709, 713 (2005). McGowan v. Maryland, 366 U.S. 420 (1961). Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Marsh v. Chambers, 463 U.S. 783 (1983). Miller, The First Liberty, 67. Ibid., 74–75. See, for example, Carolyn Evans and Christopher A. Thomas, “ChurchState Relations in the European Court of Human Rights,” Brigham Young University Law Review, 2006, no.3: 699, 705–6. See Worldwide Religious News, “Church-State Relations Across Europe Heading Toward ‘New Landscape,’” Dec. 7, 2006, http://www.org/ article.php?idd=23618. See Brett G. Scharffs, “The Autonomy of Church and State,” Brigham Young University Law Review, 2004, no. 4: 1217, 1237–39. New York Times, “Benedict Goes to Turkey,” Nov. 20, 2006, A26. Bryan Appleyard, “Is It Time to Take God Out of the State?” Sunday Times (London), Oct. 22, 2006, 14. See Rex Ahdar and Ian Leigh, “Is Establishment Consistent with Religious Freedom?” McGill Law Journal 49, no. 3 (2004): 635, 660. Ahdar and Leigh, “Is Establishment Consistent,” 680–81. Dominique Custos, “Secularism in French Public Schools: Back to War?” American Journal of Comparative Law 54 (2006): 337, 340–41. Custos, “Secularism in French Public Schools,” 337. Reynolds v. United States, 98 U.S. 145 (1878). Sherbert v. Verner. Employment Division v. Smith, 494 U.S. 872 (1990). Goldman v. Weinberger, 475 U.S. 503 (1986). Braunfeld v. Brown, 366 U.S. 599 (1961). Adhar and Leigh, “Is Establishment Consistent,” 668 n.185. Australian Capital Television Pty Ltd. v. Commonwealth, 177 C.L.R. 106 (Austl. 1992). See David S. Bogen, “The Religion Clauses and Freedom of Speech in Australia and the United States: Incidental Restrictions and Generally Applicable Laws,” Drake Law Review 46 (1997), 53, 57–58. Gabriel A. Moens, “Church and State Relations in Australia and the United States: The Purpose and Effect Approaches and the Neutrality Principle,” Brigham Young University Law Review, 1996, no. 4: 787, 791.

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42. Attorney-General of Victoria ex el. Black v. Commonwealth, 146 C.L.R. 559 (Austl. 1981). 43. Ibid. at 579. 44. Americans United for Separation of Church and State, “Hackles Up Down Under: Aussies in Uproar Over Tax Funding of School Chaplains,” http://blog.au.org/2007/01/18/hackles_up_down/ (last accessed July 15, 2008). 45. Regina v. Keegstra, [1990] 3 S.C.R. 697. 46. Regina v. Butler, [1992] 1 S.C.R. 452. 47. Regina v. Big M Drug Mart, Ltd., [1985] 1 S.C.R. 295. 48. Canadian Civil Liberties Union v. Ontario (Education Minister), (1990) 71 O.R.2d 341, 65 D.L.R. (4th) 1. 49. Reitag v. Penetanguishene (Town), (1999) 47 O.R.3d 301, 179 D.L.R. (4th) 150. 50. Lee v. Weisman, 505 U.S. 577 (1992). 51. Santa Fe Independent School District v. Doe, 530 U.S. 271 (2000).

Chapter 4

The Road from M onticello The Influence o f t he Amer i ca n Co ns titu tio nal Expe r i ence i n O t her L a nd s

A. E. Dick Howard

In August 1784, Thomas Jefferson arrived in Paris. The next year,

he succeeded Benjamin Franklin as American Minister to the French Court. Jefferson seems not to have enjoyed the cold winters in Paris, but he loved France. Traveling extensively, he explored France’s historic countryside, admired its architecture, and acquired a taste for French wine. A true child of the Enlightenment, Jefferson was no mere tourist. He delighted in good conversation and thirsted to explore and expand the catalog of human knowledge. His philosophy is nicely summed up in his ambition “to promote the general good of mankind by an interchange of useful ideas.” His Notes on the State of Virginia (first printed in 1785) was written in response to queries put to him by the Marquis de Barbé-Marbois, secretary of the French Legation. Jefferson took particular interest in Jean-Nicolas Démeunier’s work on his Encyclopédie Méthodique, especially essays on the United States. At Jefferson’s prompting, Démeunier included in his encyclopedia the text of the Virginia Statute for Religious Freedom, written by Jefferson and enacted into law by the Virginia legislature in 1786. The American founding period occupies a special place in the history of modern constitutionalism. In an age when ideas of democracy and republican government were inchoate and untested, the Founders knew that they were embarked on a remarkable journey

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of discovery. It fell to the Americans to give the concept of popular sovereignty a distinctive form through the use of constitutional conventions, such as that which produced the Massachusetts Constitution of 1780. Through the gradual emergence of judicial review (what Europeans today would call constitutional review), American courts devised an effective means of making written constitutions superior to legislative and executive actions, a means tested tentatively by state courts and ultimately given full voice in Chief Justice John Marshall’s famous opinion in Marbury v. Madison. The notion of separation of powers was already familiar to Europeans, but the Americans reshaped it from giving voice to different social orders to limiting government power by way of separating the legislative, executive, and judicial functions of government. Especially original was American federalism, a compromise based not in abstract thinking, but in political realities reflected in the debates at Philadelphia in 1787. In matters of religion, Americans were already moving beyond arguments for toleration (itself largely unrealized in Europe) to creating a constitutional basis for the free exercise of religion and for the separation of church and state, the boldest step being Virginia’s enactment of Jefferson’s statute. The America that Jefferson knew was, in many ways, a far different place from the France he encountered in the 1780s. Although not yet the kind of democracy we are familiar with in our own time, America was, by European standards, already very democratic. There was, of course, no monarchy. Nor was there an entrenched social hierarchy, notwithstanding a measure of deference given to leading Americans in the late-eighteenth century. Unlike France, America had no pervasive bureaucracy. And while there were established churches in various American states, the growing diversity of sects and beliefs made any established church’s hold open to challenge. From the earliest years of the American founding era, word of the American experiment spread quickly on the other side of the Atlantic. Sometimes ideas were spread by Europeans, such as French soldiers who returned to their homeland after the battle of Yorktown. Americans themselves were often eager to tell their new nation’s story. By 1777, the year of Saratoga (when the military outcome of the American Revolution was far from assured), Benjamin Franklin had come to France. Already the text of the early state bills of rights and constitutions (notably Virginia’s Declaration of Rights of 1776) were beginning to appear in Europe, both in English and in other languages, especially French.

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Thinkers of the French Enlightenment were thrilled to see what seemed to them to be the planting, in an actual time and place, of the lofty ideals they had been promoting. The Marquis de Condorcet declared, “It is not enough that the rights of man be written in the books of philosophers and inscribed in the hearts of virtuous men. The weak and ignorant must be able to read them in the example of a great nation. America has given us this example.” The Declaration of Independence stated goals to which many Frenchmen would have subscribed; it was through the process of making and implementing the American state and federal constitutions that reformers in Europe were inspired to see the possibility of realizing those goals.

Fr a nc e in the Ag e of Revoluti on The American founding period offered the French more than an abstract object of interest; the American state constitutions and bills of rights served to frame the debate in France over fundamental documents in the years beginning in 1789. Virginia’s Declaration of Rights, in whose drafting George Mason was the central figure, was especially influential. Today, the Virginia Bill of Rights (most of which derives from the original Declaration) appears as Article I of the Commonwealth’s Constitution. When the Williamsburg convention wrote the original Declaration, however, the delegates drafted and approved two documents: a declaration of rights and a frame of government. This sequence reflected a natural-law assumption, steeped in the tradition of John Locke, that rights precede government. Having stated rights, the Virginia delegates then proceeded to the body of the Constitution. Although the French theory of rights is not the same as that of the Anglo-American tradition, it is interesting that the revolutionary generation in France took two steps resembling those taken by the Virginians—first, a declaration of rights, then a constitution. In crafting their Declaration, the French framers had immediate access to the text of the Virginia document. The similarities are striking, although social conditions (especially the pressing need in France to root out pervasive privileges) led to some differences. Of George Mason, Condorcet said that in drafting the Virginia Declaration, Mason deserved “the eternal gratitude of mankind.” Thus one can trace how France drew heavily upon the American example in declaring rights as the foundation of society.

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The story of drafting the first French Constitution is a different one. Here, too, events in America—the early American state constitutions—framed the French debate. The first state constitutions were all variations on themes of republican government, typically reposing great power in the legislative branch as being closest to popular will, providing for frequent elections, and exhibiting distrust of executive power. An important variation lay in deciding whether the legislature should be unicameral (as in Pennsylvania) or bicameral (as in Massachusetts). Partly because of the precedent of the Massachusetts Constitution of 1780, and stoked by the powerful example of the 1787 Federal Constitution, America proved to be inexorably on the track of bicameralism (today, of the fifty states, only one, Nebraska, has a unicameral legislature). Years before France’s National Assembly began work on the first French Constitution, there was a vigorous exchange of views, on both sides of Atlantic, as to the proper model to protect the rights of a free people. No one was more robust in making the case for American bicameralism than John Adams, the chief architect of the Massachusetts 1780 Constitution. In his massive Defence of the Constitutions . . . of the United States, Adams saw the second chamber as a way of keeping people of power and position from subverting the influence and interests of the larger society. Adams and his Massachusetts Constitution had their admirers in France, who also were influenced by the English experience with mixed government. In the National Assembly, Jean-Joseph Mounier proposed that powers be separated among representatives, a senate appointed for life, and the king. Others, notably Honoré Gabriel Mirabeau (arguably the most powerful orator of the Assembly) and Louis-Alexandre de la Rochefoucauld, also invoked American precedents in arguing for bicameralism and the separation of powers. Arguments for focusing the general will (an ideé fixe in the thinking of Rousseau) in a single legislative assembly proved more powerful than the appeals to American bicameralism. Condorcet may have admired Virginia’s Declaration of Rights, but he would have none of Massachusetts-style bicameralism. He devoted major passages in his Quatre Lettres d’un bourgeois de New-Haven to arguing for a single assembly speaking for the nation. Condorcet looked to frequent elections and declarations of rights to protect the rights of the people. When the National Assembly debated the first French Constitution, the Abbé Sieyès and others who favored unicameralism declared that France, with its legacy of royal power and aristocratic influence, could

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not run the risks of draining off popular rule into a second chamber and the executive. It was Sieyès, not Mounier, who carried the day. The era of modern constitutions begins, in many ways, with the events in France and America. The Americans drew, of course, upon their British heritage (for example, the teachings of Magna Carta and the English Bill of Rights) and, more generally, on the insights of the Enlightenment (especially the ideas of John Locke and of the Scottish Enlightenment). But, in shaping their foundations, they gave distinctive shape to constitutional government, including such linchpins as separation of powers, federalism, and judicial review. The French took a different path. Both in America and France, much was made of the importance of protecting rights. Even in the formulation of rights, however, there were meaningful differences, such as the French emphasis on fraternity and social rights. More striking were the divergences as to the structure of government. France preferred a single legislative assembly, federalism was hardly considered, and judges would not enjoy the independence conferred by Article III of the United States Constitution. Events in France ran an increasingly radical course after 1789. If a single assembly spoke for the people’s will, then opposition to that assembly’s policies became treason, a path to the guillotine. Montesquieu, in his L’Esprit des Lois, had argued that government should be shaped according to the character and needs of a particular nation or people. Rousseau, famous for his theory of the general will, also instructed, as in his Considerations on the Government of Poland, that constitutions and public policy should reinforce a nation’s character. Already in the debates in Paris in 1791 one can see the rising force of nationalism and romanticism, views given even more vigorous play in the writings of German polemicists like Herder and Savigny. Both in France and America in the eighteenth century, Enlightenment notions created much common ground on both sides of the Atlantic—what Condorcet called a dedication to the “common core of human happiness.” But as the French and the Americans turned to deciding how best to defend those rights—and thus what government should look like—history, tradition, social conditions, and political realities in the two countries underscored the limits on the extent to which constitutional ideas can travel easily from one place to another.

Th e Revo lu ti ons of 18 48 When the French debated their first constitution, the American experience was still in its infancy. Half a century later, when the revolutions of 1848 swept the face of Europe, Europeans could now look to the

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fruits of actual constitutional government in the United States. Where the debates of 1791 in France turned heavily on lessons drawn, or rejected, from American state constitutions, reformers in 1848 could now talk about the larger American constitutional experience, especially that under the Federal Constitution. After a provisional government was formed in France in 1848, voters elected representatives to an assembly whose task it was both to govern and to write a constitution. The American minister in France, Richard Rush, recognized the provisional government even before getting formal approval from Washington—a move that made a positive impression in France. At home, Americans held rallies and passed resolutions approving France’s revolution. This enthusiasm was widely reported in France, strengthening the Franco-American bond and heightening French awareness of the example offered by constitutional government in the United States. In May 1848, a French newspaper declared, “The United States alone present the example of republican, democratic institutions applied with success on a large scale. . . . They alone have proved that a great people may govern itself.” Alexis de Tocqueville is widely remembered today for his rich insights into American democracy. An admirer of many things American, Tocqueville nevertheless cautioned against indiscriminate borrowing from another country: “We should not insist too much on historical examples, since we ought to try something original, appropriate to our particular situation. . . . I do not support myself by the constitution of the United States, a veritable work of art, of which we can hardly borrow anything.” France’s 1848 revolution set off a chain reaction throughout Europe. Reformers in various lands sought such goals as democracy and parliamentary government. In Germany, where states were only loosely associated in the German Confederation, there were stirrings of national identity. With the reluctant acquiescence of government authorities, elections were held in May 1848 to a national assembly that met at Frankfurt’s Paulskirche. A majority of the members were academics. Especially influential in the debates were fulltime professors, many of them academic lawyers, earning the assembly the nickname the “Parliament of Notables.” Even as the assembly met, American ideas of liberty and equality had become topics of intense interest in Germany. As early as 1824, Robert von Mohl had written a systematic treatise on the United States Constitution. The Federalist Papers, the commentaries of Joseph Story

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and Chancellor Kent, Tocqueville’s Democracy in America—all had been translated into German. At Frankfurt, the learned members often indulged in comparisons to the constitutions of other countries, but references to the United States Constitution were the most frequent. Ideas drawn from American constitutionalism figured in the debate on almost every subject. One delegate even proposed that the German capital, following the “Washington” model, be in a small town (this proposal failed). So prominently did American practice figure in the debates that a delegate complained of “the foolish tendency to plant institutions from the free states in North America into German soil.” Two issues were notably central to the German deliberations at Paulskirche: federalism and the judiciary. Historically, Germany had a tradition of federal arrangements. Even so, German constitutionalists looked to the American federal system for inspiration. The result was a blend of German and American ideas. The German National Assembly followed American precedent in fashioning federal legislative powers, but the delegates invented their own concept of federal executive power. American ideas proved especially influential when the Paulskirche assembly turned to molding the judicial branch. Carl Mittermaier, Heidelberg’s eminent constitutional scholar, called the United States Supreme Court the “highest decoration” of the United States Constitution. Emphasizing the need to create a judicial tribunal able to deal with the inevitable indeterminacy of a constitution, Mittermaier said, “Read the American Constitution, in the usual bad translations, and compare it to the living Constitution. . . . It owes its vitality, its vigor . . . to the Supreme Court. I ask you, Gentlemen, to turn to the experience of America. . . . Let us follow the American example, and we shall harvest the most splendid fruits.” The German National Assembly created a federal court, the Reichsgericht, and endowed it with the power of constitutional review, the better to ensure the supremacy of the Constitution over ordinary laws and regulations. The Paulskirche Constitution never in fact went into effect. Conservative forces in Prussia, Austria, and Bavaria were able to prevent its being ratified in those states. In Germany, as in other parts of Europe, the revolutionary impulses of 1848 receded in the face of more powerful proponents of the old order. Nevertheless, the legacy of 1848 remained powerful in later years. There is no doubt that the Paulskirche Constitution became the most influential document in shaping future German constitutional development. A century later, when Germans drafted the Basic Law of 1949 (today’s fundamental law in

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that country), they drew heavily upon ideas and institutions found in the Frankfurt document. Among the concepts shaped at Paulskirche that found their way into the Basic Law of 1949 are federalism, the constitution’s supremacy over ordinary law, constitutional review, and the rule of law. All of these constitutional principles take German form, of course. But they owe a debt as well to American ideas so pervasively examined by the delegates at Paulskirche.

Amer ic a in t he Phi li ppi nes A latecomer to the colonial enterprise, the United States acquired the Philippines and Puerto Rico as a result of the Spanish-American War. Whether the United States ought to be in the business of acquiring new territories was the subject of sharp debate. Expansionists argued that grand strategy and commerce justified America’s acquisition of territory. Some people also proclaimed religious or moral motivations. Senator Albert Beveridge declared that “American law, American order, American civilization, and the American flag will plant themselves on shore hitherto bloody and benighted.” God, he said, “has marked us as his chosen people, henceforth to lead in the regeneration of the world.” The New York Times invoked Americans’ moral duty to help Filipinos achieve “order and a stable government.” By contrast, antiimperialists argued that imposing government on another people was antithetical to American constitutionalism. Their ranks included William Jennings Bryan and William James. President William McKinley proclaimed American policy to be “benevolent assimilation,” substituting justice for arbitrary rule. He distinguished between America’s objectives and the exploitation of colonies by European powers. Filipino leaders, especially Emilio Aguinaldo, could not see the difference. They had expected that, after defeating Spain, the United States would grant the Philippines independence. When that did not happen, insurgents waged a bitter, bloody, but ultimately unsuccessful guerilla war. After a period of military government, a commission headed by William Howard Taft (the future president) undertook steps toward Americanization of the Philippines. Calling the Filipinos “our little brown brothers,” Taft said that the United States should “hold the islands indefinitely, until the people shall show themselves fit for self-government,” a process that would take at least a generation. Americanization plans had three main components: (1) guided participation in self-government, (2) the establishment of

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a system of public education, and (3) the transfer to the Philippines of American jurisprudence. The first election of the Philippine Assembly took place in 1907. Although the franchise was limited to adult males who were either literate or property owners, this election was an important step toward democratic government. Legislative power was qualified, however, by the Governor-General’s power to veto bills. Creating a general system of public schools was another American priority. Civics lessons in schools taught about local government, elections, citizenship, and respect for law. Textbooks promoted American values of hard work, honesty, and independent thinking. The transfer of American jurisprudence included the rewriting of laws and codes of procedure to mirror American laws. Considering the judiciary of the Spanish era to have been venal, Taft imported American judges to show Filipinos “what Anglo-Saxon justice means.” American case law became binding or persuasive; the Philippine Supreme Court held that Congress’ grant of rights and liberties to Filipinos automatically carried with it American jurisprudence on those rights. In 1934, the Tydings-McDuffie Act authorized the Philippines legislature to organize an election of delegates to a constitutional convention. The act put limits on what the convention could do; the resulting constitution must be “republican” in form, it must contain a bill of rights, it required approval by the American president, and it must be ratified by the Filipino people in referendum. After ten years, the United States would recognize the Philippines’ independence. When the 1934 convention deliberated a constitution for the Philippines, various sources were in play. The document’s principal drafters thought that history, customs, and usage made the Philippines more like Latin America than the United States. Other constitutional traditions, especially those of Spain, were mentioned. But the American model seems to have been the most influential. The drafters provided for a presidential system rather than the parliamentary model so familiar in Europe, for constitutional supremacy rather than parliamentary hegemony, and for judicial review of legislation. Among provisions drawn from systems other than the American model were requiring citizens to render military or civil services, renouncing war, and recognizing the state’s duty to aid parents. The Philippines Constitution was in operation from 1935 onward, except for the period of Japanese occupation. In 1946, the United States formally transferred sovereignty to the Philippines.

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Wo o drow Wils on and M ak i ng th e Wo r l d S af e for Democ racy Woodrow Wilson aimed, as he put it, to “make the world safe for democracy.” In a campaign speech in 1912—well before the outbreak of World War I—Wilson saw the United States as a moral beacon. “We are chosen,” he said, “to show the way to the nations of the world how they shall walk in the paths of liberty.” Wilson was no stranger to an understanding of constitutions and constitutionalism. At Princeton, he had taught and written extensively about constitutional law. Later, when the United States was drawn into the world war, Wilson had strong ideas about postwar constitutionalism, but he did not think that other countries’ constitutions had to follow the American model. When it came to Wilson’s hopes for the postwar world, he focused on self-determination and on free elections for constituent assembles that would determine states’ forms of government. During the war, Wilson gave a number of widely publicized speeches promoting democracy. Many people, both in the United States and abroad, were inspired by his idealism. Wilson did not want to interfere unduly in other countries’ internal affairs. Even so, politicians and leaders in other countries may have thought democracy was more necessary for Wilson’s support than it actually was. Wilson’s thinking combined elements of both democracy and constitutionalism. He saw a modern constitutional state as having four essential elements: (1) representation of the people, (2) administration subject to the law, (3) an independent judiciary, and (4) a complete statement of rights. When World War I brought the collapse of the great European empires, the newly emergent Central and Eastern European states that became democratic conformed in general to Wilson’s benchmarks. In doing so, however, they did not follow the American constitutional model. No country in that region adopted an American-style presidential system, strict separation of powers, or a judiciary with powers on a par with those of the legislature and executive. The general pattern was a parliamentary system heavily-influenced by France. European constitutions did not achieve the status of fundamental law associated with the United States Constitution. In fact, a European constitution was rather like ordinary legislation, amendable by the legislature without ratification by the people. The birth of Czechoslovakia is an interesting study in how the architects of a new nation thought their enterprise should take into account

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American institutions and the views of Americans themselves. Thomas Masaryk, widely viewed as the father of postwar Czechoslovakia, spent the latter part of the war in the United States, where he became the leader of the American Czech community. Masaryk thought it essential to woo Wilson and the American public through speeches and other communications, typically emphasizing democratic themes. In June 1918, the Czechoslovak National Council issued the Pittsburgh Declaration, drafted by Masaryk with the help of Americans. Partly an effort by Czechs and Slovaks (whose aims were not identical) to allocate powers in a new state, the document was also a statement of democratic principles. In the fall of 1918, on behalf of the National Council, Masaryk issued the Declaration of Independence. This manifesto was unquestionably intended to sway American opinion. In his memoirs, Masaryk said that the Declaration “was cast in a form calculated to remind the Americans of their own Declaration of Independence.” Masaryk’s ploy worked. Having at an earlier time been willing to stop short of the breakup of the Austro-Hungarian Empire, Wilson did come out for an independent Czechoslovakia. As Wilson told Masaryk, he had been moved by the Czechoslovak Declaration. The needs of propaganda aside, Masaryk’s admiration for American ideas was authentic. He had extensive knowledge of American literature, and he felt that there were parallels between social conditions in Czechoslovakia and the United States. For example, neither country had an aristocratic or military tradition. Given Masaryk’s time in America and his active solicitation of American support for his country’s independence, one might expect him to nudge the drafters of Czechoslovakia’s first Constitution in the direction of the American model. There is some debate over the extent of his actual influence on the making of that constitution. Whatever that role, the structure of government established in Czechoslovakia looked more French than American. The legislature, for instance, even had the same nomenclature as in France—a National Assembly, composed of a Senate and Chamber of Deputies. The drafters in Prague did not mimic the French model in every respect, but the Czechoslovak Constitution owed more to Europe than to America. Masaryk and his allies thought it critical to appeal to American sentiments in giving life to the new Czechoslovakia, but when it came to the practical business of fashioning their fundamental institutions, these Central Europeans were, after all, still Europeans.

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M ac Arth u r a nd the C onsti tuti on of Japan As the war in the Pacific approached its end, the Potsdam Declaration, issued in July 1945, called for Japan’s unconditional surrender. Furthermore, the statement required Japan to establish a democratic government with respect for human rights. The Allies expressed their intention to withdraw their occupying forces from Japan once a “peacefully inclined and responsible government” had been established as a result of the “freely expressed will of the Japanese people.” In August 1945, Japan surrendered. In contrast to Germany, where no government survived the war, Japan had a government that continued to exist, although under Allied rule. Accepting Japan’s surrender, General Douglas MacArthur drew inspiration from President Lincoln’s Second Inaugural Address—to go forward “without malice.” In October, MacArthur suggested that the Japanese draft a new constitution to replace the existing document, which had been drafted in 1885 and based in part on the old Prussian Constitution. The Japanese government appointed a committee, headed by Minister of State Joji Matsumoto, to undertake the task. When a draft of the Japanese revision was leaked to the press, MacArthur realized that, left to their own course, the Japanese saw little reason to make substantial changes in the old constitution. MacArthur felt the need to act quickly. He was concerned, in particular, that as time passed the Russians would move to assert greater influence over affairs in Japan, an influence that MacArthur could only see as pernicious. The American authorities, he decided, would have to draft a constitution themselves. MacArthur assigned the job to his military government team. Working under MacArthur’s insistence on early action, they produced a draft in a week. In February 1946, General Courtney Whitney presented the American draft to the Japanese. They were stunned. The Japanese had expected the Americans to comment on the Japanese draft, not to produce a new one. MacArthur was not, however, to be dissuaded, and ultimately the Japanese yielded. The Japanese Constitution received the parliament’s formal approval, and it was promulgated in 1946, to take effect in 1947. The American influence on the Japanese Constitution is unmistakable. First, as to the emperor, MacArthur had seen the value of retaining him as a symbol of the nation, but the Constitution states that his power derives from the people—an obvious departure from Japanese tradition. Second, the most famous provision of the Constitution is Article 9, in which Japan renounces war—a policy flowing directly from American wishes. Third, Japan’s Constitution now states

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fundamental rights, such as those affecting criminal procedure. It is interesting that the Constitution has rights not found in the American Constitution, including academic freedom, a decent standard of living, education, and rights of labor. Many of these rights would sound familiar to any student of the New Deal, and they reflect, in part, the ideas of members of the American drafting team. Fourth, the Americans wanted a stronger judiciary. But recalling how the United Supreme Court had resisted the New Deal, they were cautious about judicial power. Lest Japan, too, be encumbered with something like America’s “Nine Old Men,” the Japanese Constitution requires that judges retire at age 70. Fifth, Japan’s due process clause protects life and liberty, but not property. It is obvious that the drafters wanted to avoid Japanese courts’ use of substantive due process to frustrate social and economic legislation as American courts had done in the early days of the twentieth century. One might have expected that, once the American occupation ended, the Japanese would overhaul their Constitution, producing a document with fewer foreign fingerprints. They have not. Indeed, in the sixty years since the Constitution became effective, there have been no amendments. One reason surely is the fact that, first, during the Cold War, and more recently, with the rise of China and the threat of North Korea, the Japanese have not been anxious to invite unnecessary criticism. Furthermore, it seems fair to say that, whatever the origins of their Constitution, the Japanese have produced a constitutional system that, in actual practice, has been domesticated. For example, the Japanese Supreme Court has rarely invoked its power to strike down acts of the legislative branch. In recent years, there has been rising debate over Article 9 and the limits it imposes on Japan having armed forces. Whatever happens next, the adoption of the Japanese Constitution remains a remarkable example of the direct hand of a foreign power, in time of military occupation, in the making of a durable constitution.

H ow C o nstitutional Ideas Travel In this chapter, I have recorded a few selected constitutional moments—instances in which the American constitutional experience has been used to frame constitution making in other countries. Sometime the transfer of ideas has been voluntary, other times not. In some instances, Americans have initiated the transfer, in other cases people abroad have sought to canvass American practices for their comparative value. I could tell yet other stories—of constitution making

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in Latin America in the age of Bolivar, of Germany’s drafting of the Basic Law of 1949, and of the shaping of constitutional democracy in post–Soviet Central and Eastern Europe, to mention only a few examples. A review of the accounts I have given suggests the remarkable array of ways in which the constitutional experience of one country can be brought into play when people in other places make their own constitutions. Among those modes of transference, we may include the following: 1. Admiration for a nation’s ideals or experience. The ideals expressed by Americans during their Revolutionary era were widely admired in France even before revolution broke out in that country. When the French undertook the writing of their first constitution, the experience under the American state constitutions was closely studied and examined. Half a century later, in the age of liberal revolution in Europe, the drafters of the 1848 constitutions in France and Germany looked closely at practice and experience in the United States as they debated issues such as bicameralism, federalism, and judicial review. 2. Admiration for influential individuals. Benjamin Franklin seemed, to many in France, to epitomize American virtues. His successor, Thomas Jefferson, drew influential Frenchmen, such as the Marquis de Lafayette, to his drawing room to pass along American ideas on such issues as fundamental rights and religious liberty. Many years later, Woodrow Wilson quickened the democratic impulse in aspiring nations after World War I. 3. Colonialism. Colonial powers commonly care little about preparing colonized peoples for eventual self-government; the Portuguese experience in Mozambique and Angola is but one illustration. Yet American policy toward the Philippines, however paternalistic it may seem to a modern observer, tells a fascinating story of the effort to plant constitutional democracy and its institutions in preparation for a nation’s eventual independence. 4. Military defeat or occupation. Intuitively, one might suppose that a defeated country would harbor only resentment toward the victor, making constitutional transference unlikely. The American military government’s drafting of a constitution for Japan offers evidence that even defeat can be the occasion for one country’s constitutional ideas to take root even in a significantly different culture. The Germans who drafted that country’s Basic Law of 1949 operated more freely than did the Japanese, but even there American

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ideas had some influence, partly because Allied policy could not be ignored altogether, and partly through the legacy of Paulskirche. 5. Political or economic calculations. States, especially those newly created or those emerging from a subservient status, may well embark on constitution making with a view to attracting the goodwill or support of other countries. Thomas Masaryk’s adroit use of American ideals to win support for Czechoslovak independence is a case in point. After the collapse of communism in 1989, the newly free states of Central and Eastern Europe consciously shaped constitutions, laws, and institutions along the lines of Western Europe in order to prove that they were worthy of being part of the family of Europe. Their hope, in particular, was to be admitted to such regional arrangements as the European Union, a goal now realized through much of the region (the most recent EU members being Bulgaria and Romania). 6. Conformity to international documents and norms. In Jefferson’s day, Enlightenment ideas on such subjects as rights furnished common discourse among constitution makers on both sides of the Atlantic. In more recent times, especially after World War II, international norms play a powerful role in the making of constitutions. Especially is this true in the realm of rights. In this chapter, I have not sought to tell the story of the influence of such international documents as United Nations covenants or regional norms such as those found in the European Convention on Human Rights. But the influence of such norms, especially in the drafting of bills of rights, is inescapable. 7. Technical advice. Lawyers, judges, professors, and others often travel from established democracies to advise emerging democracies in drafting constitutions, as well as in strengthening the institutions of constitutional democracy, such as parliaments, independent courts, and civil society. The American Bar Association’s Central European and Eurasian Law Initiative has performed an invaluable service in helping postcommunist countries to think through the challenges of transition from an authoritarian to a democratic era. The Council of Europe’s Venice Commission has played a similar role in a range of countries.

Th e P l ac e o f the A mer i c an Ex per i ence To what extent can those who shape laws and institutions in one country draw from the experience of other countries? You would have to

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be simpleminded indeed to suppose that you could travel to another country with a copy of your own constitution or laws in hand to serve as a template for drafters there. Americans in particular, proud as they tend to be of their country’s rich heritage of constitutional democracy, must beware the temptation to hold out their own country’s experience as surely right for another people. At the same time, one should resist the argument that everything is ultimately relative, that each country’s own history, tradition, culture, and politics preclude constitutional borrowing. If it is the American constitutional experience that is offered by way of model, the limits on the value of that model are evident. They include the following: 1. The Constitution’s text, although amended and interpreted, is nevertheless a document written in the eighteenth century, under circumstances quite different from those of modern times. 2. The United States Constitution is consciously incomplete, in the sense that its drafters assumed the existence and vital role of the states and their constitutions. 3. There is a familiar argument about American “exceptionalism,” the notion that, tracing back to the earliest settlements, the American experience has been exceptional and that it has produced a constitutional culture that cannot be replicated elsewhere. 4. Much of America’s constitutional experience is distilled in Supreme Court cases and in usage—experience that is not readily captured or distilled. 5. Other models have risen to claim the attention of drafters. A powerful example is Germany’s Basic Law, whose influence is readily apparent in Central and Eastern Europe. 6. International and regional norms and documents provide influential points of reference, for example, providing notions of rights (such as positive or affirmative rights) that go beyond the American Bill of Rights. These caveats notwithstanding, the importance of the American constitutional experience lies not so much in the use of the United States Constitution as an explicit model, but in what it represents. If there were a genealogical chart of constitutionalism in the modern world, the American Constitution would be a respected ancestor. What Magna Carta is to Anglo-American constitutionalism, the United States is to world constitutionalism.

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Among the principles embedded in American constitutionalism are limited government, separation of powers, checks and balances, recognition of national and local interests, constitutional supremacy over ordinary laws, and protection of individual rights. One would hope to find these principles, in some form, in any constitutional system aspiring to liberal constitutional democracy. Insofar as these principles have been nurtured by the American constitutional experience, then to that extent one can say that what Americans have done has been part of a constitutional conversation in places, and eras, and cultures far remote from the world of Thomas Jefferson and his contemporaries.

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Pa rt I I

The Wall of Separation and Wester n Perspectives

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Chapter 5

S ecul ar ism, Liberalism, and the Problem of Tolerance Adam B. Seligman

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f I understand it aright, the challenge we face is to explore if the separation of church and state is a precondition for freedom and democracy. If understood in strictly legal terms, the short answer I imagine would be, of course not. There are myriad of European countries, from England to Norway and Sweden to Spain, where there has, in this century, been no such strict legal separation of church and state— in Great Britain, the queen is, after all, the titular head of the Anglican Church. In all these countries there exists a multitude of modes of church-state accommodation not defined in terms of strict separation, and yet one would be hard pushed to claim these countries lacked freedom or democracy. Portugal, Spain, Italy, and Germany have, after all, concordats between state and church. Finland, Denmark, and England all have state churches (while Greece has a constitutionally defined “dominant religion”).1 Something else is thus clearly at stake and needs to be unpacked. What I propose to do in this chapter is to contextualize the question of church-state relations in a set of broader themes, and in so doing, attempt to expand our sensitivities to some aspects of this question. I will therefore place the issue of church-state relations within three An earlier version of this chapter appeared in Theoria: A Journal for Social and Political Theory 115 (April 2008), 17–31. It appears here with the kind permission of Berghahn Journals.

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different contexts: (1) the broader context of religion and secularism, (2) the more specific context of early American Congregational Puritanism and its relations to freedom of conscience, and (3) the more sociological issue of the separation of private from public realms and the implication of this separation on how we deal with identity and difference in the contemporary world. I proceed in this task with no small degree of trepidation, given the expertise among those who have addressed each of these issues in the past. There are many who have spent their lives studying any one of the three themes I suggest here, and so if there is anything I can add, it can only be in their juxtaposition and the dim light that may shed on the issue of church-state separation in its relation to democracy. I think it is probably most useful to begin with the recognition that what we mean by the separation of church and state, or perhaps what we should mean, is of a somewhat different order than the difference we posit between the religious and secular dimensions of life. The separation of church and state refers to the political order or political dimensions of existence. It need not reflect any overarching claims to the sacred, the profane, or the relations between them in the lives of the men and women who make up any particular society. This is a commonplace distinction, to be sure—but one that is often lost sight of in today’s debates, certainly in the United States, but elsewhere as well. In fact, I would like to go one step further and claim that we tend to use the concepts of secularity or secular culture or secularization as if these were objective, universal, and value-free concepts that can be used to characterize aspects of shared social life that are not religious. Religion and religious too are used as universal, objective, and valuefree concepts. I believe this approach is fundamentally flawed. I think rather that both religion and secularism are concepts that developed in a very particular and Christian context, and can be used, helpfully, to describe aspects and periods in the development of Christian civilization—but they do not actually serve us well when we come to discuss, analyze, and understand other traditional civilizations or other civilizations within which tradition is changing and being renegotiated.2 What, for example, is a secular Jew? What of a Jew who observes none of the ritual commandments, goes to synagogue only on Yom Kippur, and does not otherwise maintain any traditional practices? Is he secular, or partially religious, or what? How do we characterize China and 1.3 billion Chinese? Ingelhart has called China the most secular country in the world. But when we recognize the proliferation of spirit cults and other forms of worship, we come to realize that it is

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not secular in any usual sense of the term. More important perhaps, what of Islam? What of the individual or community whose observance of traditional commandments are partial or almost nonexistent? What of the Muslim who eats during Ramadan—but only in private, in hiding, away from communal eyes? Is he secular or hypocritical? What of the Muslim who does not eat during Ramadan but drinks wine occasionally? What of those communities in Central Asia that celebrate the Id by drinking vodka? Are these people secularists or sinners or ignorant? Or are they as so many others are, engaged in the never-ending movements, interpretation, and transformation of their tradition that is continually being negotiated and negotiated anew by communities and individuals over the course of time? I would in fact claim that secularism is a very particular moment in the Christian process of negotiation of its own tradition—as was the Protestant Reformation and as is the phenomenon of Christian fundamentalism. All are particular moments in the way the concrete practice of tradition mediates, transforms, and negotiates the tradition of practices that define any civilizational endeavor. That a particular moment of this negotiation in Christianity is understood in terms of secularism has much to do with the privileging of belief over practice, of faith over works, and of innerlichkeit over external practice that has been part of Christianity from its origins (as evinced in its rejection of Jewish Law and its unique allegorical way of reading and interpreting Scripture) and that received particular emphasis during the Protestant Reformation of the sixteenth century. Secularism as unbelief is thus the complement of tradition understood primarily in terms of belief rather than practice. The consequent use—I would say, misuse, of this term—to characterize other civilizational endeavors, the Jewish, the Islamic, the Hindu, etc., is simply the spoils of war as it were: a consequent of the power differentials between the Christian, Jewish, Islamic, Indian, and Chinese civilizations. Indeed, as I have already hinted at, I would much prefer to replace the dichotomy of religion/secular with that of tradition of practices/practice of tradition—because it is a more structural and less particularistic, historicist, and Whiggish a way of conceptualizing what is usually understood as the dichotomy between religious and secular individuals, cultures, and communities. I preface my much more concrete remarks with these broader methodological reflections because they bear great relevance to the general theme of this book, which deals with one aspect of what is often seen as relevant to the debate over religion and secularism, and that is the separation of church and state.

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Earlier, I mentioned Europe as providing examples of freedom and democracy without the type of strict separation of church and state that we can find in the USA. Europe, too, we recall, is the “secular” exception in a world that is overwhelmingly “religious.” Or, in the terms I am offering here, European civilization is one where traditional practices have been most abandoned and rejected, a fact that can be ascertained by visiting any of the churches of Europe and calculating the average of age of those in attendance on any given Sunday. Moreover, this rejection of tradition is intimately tied up with the overwhelming terms of collective identity. In fact, both phenomena may well be related. The Peace of Westphalia and the concept of cuius regio eius religio may be central here. Europe, which was Christian, became rather a continent of nation-states, and in different ways traditional practices pertaining to the sacred were subsumed within a new set of practices organized around national identities. Somewhat unique to these new identities that emerged following the Protestant Reformation of the sixteenth century was what was to become the United States of America. For, while the United States may well be, as S. M. Lipset claimed, the “first new nation,” it is also a nation where certain sectarian Protestant assumptions on self and society were allowed to develop relatively free of the effects of the Counter-Reformation and, in general, free of the need to take into consideration the existence of the Catholic Church.3 It was then, in my earlier terms, a particular moment in the endless negotiation of the Christian tradition. Critical to this moment, however, was that the grand debate (often violent, to be sure) over the terms of Christian tradition that defined the Protestant Reformation and the Counter-Reformation in Continental Europe— and which eventuated in the development of secular polities and societies there—was, to a great extent, ignored in the New World and played but a minor role in the later history of the United States. There was no ultramontane party in nineteenth-century American politics, nor was there a state church as in Sweden, nor was there a religious requirement for full citizenship rights over the course of the nineteenth century. All of which does not mean that the United States was, or is, secular in the cultural sense. Rather, it means that it was secular in the classical, circumscribed, and medieval usage of the term—referring to that area of public life that is outside sacerdotal regulation and ecclesiastical jurisdiction. Secularism, then, in the USA must thus be understood as a constitutional principle rather than as a moral position, a principle embodied in that very separation that is the theme

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of this book. This distinction, between secularism as moral position and as constitutional principle, is crucial to keep in mind when we come to understand the role of religion in public life, within different social contexts. What the Protestant sectaries brought to—and imposed on—the new polity they established in the New World was a particular set of religious orientations that—in the course of time—not only permitted but even encouraged the establishment of freedom of conscience as a political right, however much such rights were in fact clearly restricted within the Congregational settlements of Massachusetts Bay over much of the seventeenth century (though, of course, they did flourish in Rhode Island under Roger Williams). For the idea of freedom of conscience was not conceived of as rooted in anything other than certain fundamental aspects of Protestant belief (recall the unique character of these sectarian Protestants was precisely in their rejection of “works,” that is, their rejection of all traditions of practice and almost total replacement by the “workings of grace in the soul.” That the very institutionalization of the settlement and later the polity would necessitate a certain mediation of this radical position is of course also the case).4 This freedom of conscience, which has, more recently, been referred to as the very first “political right”—perhaps today we would say the very first “human right”—has been of indescribable significance almost from the beginning of Protestant settlement in North America. In fact, and at least within the context of American history, it illustrates just how indebted modern ideas of individual right are to religious principles. It in fact illustrates what can be termed the interweaving of religious and secular dimensions that came to characterize the reconstruction of natural law doctrines in eighteenthcentury America. This development was analyzed by German legal scholar and sociologist George Jellinek in the nineteenth century. Already in 1895, Jellinek compared the American Bill(s) of Rights (from different states), the French Declaration des Droits de l’Homme et du Citoyen, and more significantly, the English Bill of Rights of 1689, the Habeas Corpus Act of 1679, and the 1628 Petition of Right. His conclusions are worth quoting: The American bills of rights do not attempt merely to set forth certain principles for the state’s organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his

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Adam B. Seligman own nature he has inalienable and indefeasible rights. The English laws know nothing of this. They do not wish to recognize an eternal, natural right, but one inherited from their fathers, “the old, undoubted rights of the English people.5

As Jellinek sees it, English law offers no autonomous grounding of individual rights in a set of natural principles but grounds them solely in tradition, in “the laws and statutes of this realm.”6 Jellinek, however, looked to the defining traits of Congregational Puritanism to explain how the “inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings” became transformed in the New World to “rights which spring not from man but from God and Nature.”7 The very success of natural law doctrine—based on self-sufficient individuals endowed with reason—as the foundation of the American political community rested on the synthesis of these ideas with the tradition of the Holy Commonwealth of visible saints, the transcendent subject of Protestant belief. Not only (transcendental) reason but also (transcendent) grace, redefined in the inner-worldly terms of individual conscience, continued throughout the eighteenth century to define the terms of individual and social existence in the civil polity. It was the very continuity of this religious heritage that made the positing of a political community of individuals—united by compacts—possible in eighteenth-century America and beyond. And so Jellinek concluded, In the closest connection with the great religious political movement out of which the American democracy was born, there arose the conviction that there exists a right not conferred upon the citizen but inherent in man, that acts of conscience and expressions of religious conviction stand inviolable over against the state as the exercise of a higher right. This right so long suppressed is not “inheritance,” is nothing handed down from their fathers, as the rights and liberties of Magna Charta and of the other English enactments—not the State but the Gospel proclaimed it. 8

As Jellinek realized, individual rights in America were not derived solely from positive law, but had acquired a transcendent justification unique in the modern world. Now there is an interesting story to be told—and one that Jellinek glosses over—on just how “grace” and “the Gospel” proclaim these rights. The particular forms of theological controversy that became dominant by the early eighteenth century in New England saw the

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political need for a moral community based on natural law where religion was both central but separate from state power.9 As we all know from the vast amount of published material on the events leading up the American Revolution, the issues of compacts, natural law, and the constitution of a political community, as a community of virtue, were debated at great length. Within these debates Locke’s philosophy of natural law played a central role—arguably more central than in his home country or indeed anywhere else.10 And Locke, we recall, presented a rational account of both the existence of natural law as well as its binding obligation. The binding obligation to follow natural law, especially as interpreted by such Puritan divines as Elisha Williams, was achieved through man’s rational and uncoerced acceptance of the dictates of the Christian religion.11 Natural rights came to be understood as being derived from the fundamental duties imposed on man by natural law to maintain himself as a moral agent. Morality (the most meaningful form of agency) was predicated on freedom, especially on freedom of the will. Freedom of the will, liberty, was therefore central to the whole construct of natural rights, for only a will and a conscience free of coercion could rationally ascertain the truths of natural law. At the same time, however, religion was central to the political community for it provided the necessary realm of virtue wherein which such reason could develop. If, in the seventeenth century, the religious community provided the realm for the workings of grace—that arena wherein the will of a man could be “quickened” to accept the undeserved workings of grace—then in the eighteenth century that same community was seen to provide the arena wherein his reason could be so “quickened” to accept the obligations of natural law. Hence we find George Washington, in his farewell address in 1796 asserting,12 Of all the disposition and habits which lead to political prosperity Religion and morality are indispensable supports. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the Oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on the minds of peculiar structure—reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.

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Thomas Jefferson, we recall, authored not only the Virginia Statute for Religious Freedom, but also the Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers. It was, recalling Washington, a “National morality”—that is to say, the very community of virtue whose birth America was to presage—that was at stake in the maintenance of both religion and religious freedom.13 So much then for the background to Jellinek’s important insight into the nature of rights and most centrally of the right to freedom of conscience in the United States. Rights, in this vision, did not stand apart from some overarching vision of the good—as they do in contemporary liberal political theory—but as part and parcel of such a vision. We must moreover recall that the while the separation of church and state is one way that the freedom of conscience has been institutionalized within the body politic, it is not the only mechanism of such institutionalization; Article 9 of the European Charter of Human Rights and Article 10 of the Charter of Nice provide similar mechanisms.14 Indeed, I wonder if we could go so far as to state that the fundamental value, the aforementioned good, to be preserved by the separation of church and state is not so much separation for its own state, but as a guarantor of freedom of conscience; that fundamental and first “political right” that is really what is at stake in preserving both freedom and democracy. There is of course another reading that we can offer, drawing more heavily on The Federalist Papers, where the separation of church and state is to be understood in terms of preventing the politics of factions and managing the politics of interest. Democratic regimes, after all, exist in an abiding tension between a politics of interest—pushing citizens to focus on what divides them—and a politics of consent—pushing citizens to affirm what unites them. (This tension, I hasten to add, is not a characteristic of all political and social systems to the same extent. Totalitarian systems, fascist regimes, communist societies, theocracies, and, on the other side of the coin, empires do not betray the same tensions; the former can abide a lesser amount of difference, the latter, a much greater amount, than democracies. Even within democracies there are various differences between what have been termed liberal and republican versions, where the former allow a much greater institutional recognition of difference than the latter.) Needless to say, the Founding Fathers of the United States recognized this tension and worked out mechanisms to accommodate it. The wall of separation between church and state in America is predicated precisely on the Founders’ recognition that it is better that the people’s

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politics be divided by their different material interests (which would then play out in the political sphere of the legislature) than by their religious differences (which could have potentially ruinous effects on social and political life). If current practice in places like the Balkans, the Middle East, the Indian Subcontinent, and within parts of the Republican Party in the United States are any guide, people like James Madison were stupendously correct in this assessment. Indeed, it may just be that the problem of difference, and of dealing with difference—different interests, identities, sacred traditions, and other forms of practice within one body politic organized on democratic principles—is the real challenge, and the separation of church and state is just one mechanism that accommodates one form of such difference in one particular way in one particular place, and it is uncertain if it can or should be generalized beyond that place—or, for that matter, that it address problems rooted in other forms of difference. (Again, think of the Church of England and its constitutive role in the definition of English identity, even today, where the responsibilities of a parish priest include those to members of other sacred traditions.) One of the chief means for dealing with difference, not just religious difference, but all substantive difference, has been the legal separation of public and private realms that defined a realm of privacy, understood as what we may term “principled indifference,” where inquiries into the constitutive nature of the individual, agency, and action are not countenanced. In the social realm, indifference comes in many forms, most often as what may be termed the “aesthetization of difference” (differences are a matter of tastes, not morals, and as there is no accounting for tastes, no real need to abide someone’s difference is called for, only rather a need to recognize each individual’s “right” to his own opinion). The aesthetization of difference is moreover often accompanied by a trivialization of difference. Here the differences or the arenas of difference are not deemed important enough to merit a principled response. Your rather poor taste in neckties is not something that demands of me any sort of reaction, though I find them both offensive and in bad taste. Precisely because these differences are conceived of as a matter of taste (aesthetics) and of no great significance (trivial), there is no need to engage with them within our shared, public space. These moves, of making difference a matter of aesthetics or trivializing it, are of course ways to avoid having to address them. By trivializing what is different, one makes a claim to the essential similarity or sameness of the nontrivial aspects of selfhood and shared meaning. What makes us the same (as Jews, Episcopalians, Armenians, or

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radical feminists) is much more essential to our definitions of who we are than what divides us (your horrendous taste in bathroom fixtures). This is a form of denying difference rather than engaging with it. And we do it all the time; it is of the very stuff of our social life. As we know all too well, it also has its limits (in, for example, issues over gay rights, abortion, and so on). In a certain sense, and as most often practiced in daily life, such denial of difference (relegating it to the aesthetic or trivial) is itself a form of indifference toward what is other and different. By framing our difference from alter’s position or action in terms of tastes or the trivial, we are not forced to engage with it and can maintain an attitude of indifference. Thus, I may find your religious beliefs foolish and your sexual appetites objectionable, but neither are illegal or hurtful to others. They do not affect me in my relations to you (as, say, a member of the same university department) and so, in the long run, they are a matter of indifference to me. They are your private concern. Not surprisingly, that freedom of conscience that we discussed earlier—and that, as we have seen, was in fact the freedom of religion—went hand in hand with this privatization. The privatization of religion and of conscience was, of course, part of a larger politics, perhaps even a political theology that has become the hallmark of a liberal American vision of modernity. And of course here precisely is the rub. For accepting these principles essentially means accepting either a liberal/secular version of selfhood and society that is not shared across the globe and across human civilizations, or an explicitly Protestant vision of human existence in the world— which is certainly not shared. Please recall here my earlier strictures about our very categories of religion and secularism. They are Christian, I would even say, Protestant categories, and we must be very careful about presenting them as universal human experiences. I hasten to add that the problems of dealing with constitutive difference in the public sphere are, of course, not unique to the United States. Nor is the “liberal” or perhaps liberal-individualist solution unique to that social formation, but in fact defines modern societies in one form or another, though with important variations. Recall, for example, the classical enlightenment response to “the Jewish Question” given by Count Stanislav de Clermont-Tonnerre in 1789: “We must refuse everything to the Jew as a nation and accord everything to the Jew as an individual.”15 This became perhaps the paradigm statement of attitudes toward the other, understood solely as individual entities rather than as members of corporate groups. Article I of the Declaration of the Rights of Man and of the Citizen (August 26, 1789)

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of the French National Assembly states, “All men are born and remain free and equal in rights: social distinctions can not be found but on common utility.” This is a total reconfiguration of the meaning of individual identity along the lines of utility functions rather than what may be termed “constituted selves.” What this has meant within the public sphere is that the boundaries between individuals are, in these societies, parsed into razor-thin edges and individuals interact not as members of groups, but as bearers of rights (citizen rights, social rights, human rights, and so on). Group identities—those very foci of empathy and trust—have been, in the public sphere, replaced by individual identities, and the problem of tolerance of difference has been replaced by the legal recognition and entitlement of rights. Modern societies have elided the problem of difference, obviated the necessity to be tolerant of difference. They have replaced tolerance of group difference with the legal formula of individual rights. In both Europe and the United States, however, a fundamental problem remains. For rights do not provide recognition. And recognition—as political philosophers from Adam Ferguson to G. W. H. Hegel on down to our own contemporaries have reminded us—is the core of modern politics.16 After all, our demands for recognition and respect are not so much in those areas where we are the same as everyone else (that realm defined by rights), but precisely in those areas where we are unique and different (that is, in our specific and particularistic group identities). To claim that we are all fundamentally the same and to ensure that status in rights is no doubt a crucial provision for common life. But it does not at all address our demand to be approached and recognized in our separate and unique existence and identity. It is thus not at all surprising that new and old forms of groupbased identity arise to again make vocal and public demands for recognition. And this in fact is the social significance of such holidays as Kwanzaa, or of a rabbi in Boston lighting a Hanukkah menorah on Boston Common, or a French rabbi lighting one on the Champs de Mars, for that matter. All betray the demand for recognition, for a recovering of one’s identity. And demanding public recognition for it. Not surprisingly, these demands are most often framed religiously, as in the case of debates over prayer in school or placing a monument to the Ten Commandments in front an Alabama courthouse. It is in fact not surprising that in contemporary America the struggle over identity, community, class, and status (i.e., over recognition) often takes the form of a struggle over religious symbols.

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This state of affairs is as true in Europe as in the United States. The French ruling over the head scarf, the debates over the preamble to the European constitution and whether it should refer to a shared Christian heritage, or the Dutch debate on whether to outlaw full facial veils in public—all point to this phenomenon.17 Further examples abound. In October 2000, for example, the local Catholic inhabitants of Lodi, in northern Italy, desecrated a site upon which a mosque was to be built by pouring pig urine all around it.18 The idea was that by rendering the site impure they would be able to stop the mosque from being built. One immediately associates this story with the construction of a Muslim graveyard opposite the Dung Gate of Jerusalem to prevent the Jewish Messiah from appearing, as he would be of the priestly class and so unable to pass through a graveyard. Only this is the twenty-first century, of course. Anti-immigrant sentiment often takes a religious form. It is similar to the failure of the bishop of Bologna to count non-Catholic births in the city’s natality rate, or the mayor of Rouato issuing a municipal ordinance (almost immediately overturned in court) on November 24, 2000, forbidding non-Christians from approaching within fifteen meters of a church. These are but a few additional examples of the type of dynamic I am referring to.19 The severe anti-Muslim sentiments expressed in parts of Europe, not only by skinheads, neo-Nazis, and supporters of Le Pen, but also by much more respectable figures, are frightening examples of this same dynamic. Nor am I referring here to the late Oriana Fallaci—but I direct your attention to a recent book, by Jacques Ellul, entitled Islam et judeo-christianisme, published posthumously with a preface by the very distinguished French philosopher Alain Besançon, which reads like a medieval anti-Semitic tract, except here it is the Muslims and their “God” (whatever that can mean) who are presented as without love and so beyond the pale of shared humanness.20 (Recall as well that the term “Judeo-Christian tradition” is of recent coinage; it appeared only following the Second World War and the genocide of European Jewry. No one discussed the “Judeo-Christian tradition” at the First Vatican Council or during the Dreyfus affair in France.21) As we know well, this problem of recognition (and lack thereof) is no minor issue at the fringes of the political arena—it is at the very center of our social life, making demands that cannot be met by the privatization of those things for which we demand recognition! Rather than this elision of difference, it is perhaps the age-old virtue of tolerance that we should advocate. For tolerance of constitutive differences between people addresses the type of relations that

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exist on the thick boundary lines of identity—and identity is always a group identity of some sort. It is this group identity that requires recognition, even as it distinguishes, separates, and questions the overall terms of societal belonging. Much of the economic and political thrust of the modern world order has, however, been about replacing such group identities with individual ones, replacing tolerance with rights and replacing a relatively small number of what Ernest Gellner once termed “multistranded relationships” with an almost infinite number of single-stranded ones.22 In the process, tolerance goes from being a community-centered act to an individual, almost psychological attribute or personal characteristic. However, when threatened by new terms of collective membership, immigration, demographic change, religious proselytism, ethnic consciousness, and a newly assertive gender politics, such psychological attributes seem not to be up to their historical tasks. There is, of course, nothing wrong (practically or morally) with “solving” the problem of constitutive difference by removing the social conditions that make tolerance necessary. On the contrary, when it is possible, it seems to work well. But my feeling is that the conditions that defined the “high modernity” of the Western European and, especially, North Atlantic nation-state—and which allowed this particular solution or, rather, elision of the problem—are currently changing. A return to group-based identities and to religious commitments, both Christian and non-Christian, in many parts of the world, the growth of transnational identities predicated on religion, ethnicity and nationhood not dependent on statehood are all calling into question the type of individual identities that stood at the core of the revolutionary eighteenth-century idea of citizenship, especially as it developed in the United States. What we witness today is in fact a huge withdrawal of different groups into themselves, a closing of ranks against the outside world and a reticence to interact with those who are truly different. The recent trend among certain churches in the American West and Southwest to enclose banks, preschools, gyms, and coffee shops within the precincts of the church is an interesting case in point. Certain rather uncritical sociologists have seen these developments as indications of the growing worldliness of the churches. But surely the lesson is much the opposite. Rather than forcing the churched into the world, it allows their withdrawal from the world. One no longer needs to stand on line in the bank with the funny dark-skinned fellow with the turban, or have coffee with the veiled woman, or work out

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with something other than church music playing on the loud speakers. One can in fact separate from the world and attempt to constitute one’s own community of grace. You see, I was very serious with my remarks at the beginning when I claimed that secularism was just one moment in the ever-unfolding dynamic of Christian civilization, rather than its terminus ad quem. It was, after all, this very separating impulse that informed the first Puritan migration and settlement in the New World, and its failure in the second half of the seventeenth century that led to the important acceptance of the principles of toleration and freedom of conscience that we have discussed above. Its reemergence not only among Christians, but among other communities as well, raises serious questions as to the vitality of those very freedoms that we have come to accept as given and immutable aspects of the political order. The growth of human rights as what Michael Ignatieff called a form of “idolatry,” that is, as a “trump” in every argument, will not in itself counteract this development, which, in turn, will leave rights themselves as nothing but formal enactments of positive law, bereft of the very legitimizing aura that made of them beacons of freedom in the past 200 years.23 The maintenance of pluralistic forms of society and a constitutive tolerance of difference, as well as a tolerance of constitutive difference, may well, in the end, turn on our ability to reengage with diverse sacred traditions and eschew the “trump” of individual rights. This is no doubt a strange and counterintuitive call that some may see as conservative, if not reactionary, in its implications. In truth, however, it is a call not to return to the Christian sources of rights—as perhaps the Vatican may well wish to do—but rather to bring about a total reconceptualization of the categories within which we view the problems of religion and secularism and its cognate problems of freedom of conscience, individual rights, and collective responsibilities. What is called for is not a simple return to Christian sources, but rather a reengagement with traditions, including those well beyond the Christian, in order to go beyond the current impasse of post-Christian (i.e., secular) political categories. Such an engagement may in fact bring us to very new ways of understanding how a constitutional secularism could come together with a heteronymous morality, in a manner not rooted in the workings of individual conscience. This, as I see it, is the only real way of beginning to address the problems of religion and secularism in today’s global order.

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To the extent that this is the case we will have to reinvent a language of tolerance not predicted on liberal and modernist ideas of self and of interaction between selves. To do so we will, I believe, need have recourse to more traditional foundations for tolerance of difference, predicated on different ideas of the self and of the nature of the moral actor, which only a reengagement with our multiple traditions can provide.

Notes 1. Silvio Ferrari, “The European Pattern of Church and State Relations,” in Comparative Law 24 (2007): 1–24. 2. On the category religion, see Wilfred Cantwell Smith, The Meaning and End of Religion (Minneapolis: Fortress Press, 1990); on Christian use of religion, see Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity (Philadelphia, University of Pennsylvania Press, 2005). 3. S. M. Lipset, The First New Nation (London: Heineman, 1963). 4. E. Brooks Holifield, “The Renaissance of Sacramental Piety in Colonial New England,” William and Mary Quarterly 29 (1972), 33–48; E. B. Holifield, The Covenant Sealed: The Development of Puritan Sacramental Theology in Old and New England, 1570–1720 (New Haven, CT: Yale University Press, 1974); Adam Seligman, “Inner-worldly Individualism and the Institutionalization of Puritanism in Late Seventeenth Century New England,” British Journal of Sociology 41, no. 4 (December 1990), 537–57. 5. Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History (Westport, CT: Hyperion Press, 1979), 48. 6. Jellinek, Declaration of the Rights of Man, 53. 7. Ibid., 80. 8. Ibid., 74–75. 9. See, for example, Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988). 10. See Thomas Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988); Steven Dworetz, The Unvarnished Doctrine: Locke, Liberalism, and the American Revolution (Durham, NC: Duke University Press, 1990); Michael Zuckert, Natural Rights and the New Republicanism (Princeton, NJ: Princeton University Press, 1994). 11. Elisha Williams, The Essential Rights and Liberties of Protestants (Boston, 1744), reprinted in Political Sermons of the American Founding Era 1730–1805, 2d ed. 2 vols., ed. Ellis Sandoz (Indianapolis: Liberty Fund, 1988).

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12. Transcript of the Final Manuscript of Washington’s Farewell Address, September 19, 1796, homepage.mac.com/dmhart/Quotes/Washington/FarewellAddress/ParallelEdition/index.html, pg. 19 (accessed, July 13, 2008). 13. This argument has been worked out in detail in Stephen Dawson, A Facsimile of Grace: The Protestant Basis for Order in the Early American Republic (PhD diss., Boston University, 2004). 14. Ferrari, “The European Pattern of Church State Relations.” 15. On the relevance of this attitude toward contemporary issues in France, see Michael Shurki, “Decolonialization and the Renewal of French Judaism: Reflections on the Contemporary French Jewish Scene,” Jewish Social Studies 6, no. 2 (2000), 156–76. 16. See, for example, Charles Taylor, Multiculturalism and the Politics of Recognition (Princeton, NJ: Princeton University Press, 1992). 17. New York Times, Nov. 18, 2006, A3. 18. La Republica, “Lodi, la lega alla guara santa,” Oct. 15, 2000. 19. Il Giorno, “Il sindaco Alla larga dalle chiese infedeli,” Nov. 24, 2000. 20. Jacques Ellul, Islam et judeo-christianisme (Paris: Presses Universitaires de France, 2004). 21. Ernest Gellner, Plough, Sword, and Book: The Structure of Human History (Chicago: Chicago University Press, 1988). 22. Gellner, Plough, Sword, and Book, 44. 23. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001).

Chapter 6

A mer i ca’s Secul ar State and the U nsecul ar State of Eu rope John T. S. Madeley

T

here are two ways of reading the January 2007 controversy in the United Kingdom about whether Catholic adoption agencies should be exempted from antidiscrimination legislation that requires them to treat applications for adoption from same-sex partners no less favorably than those from heterosexual married couples.1 One way is to take it as an indication of how far liberal-secular political correctness is being imposed on those who conscientiously dissent from certain applications of it—to the point of forcing those that maintain their dissent out of business or public service. Alternatively, the controversy can be read as a reminder of how broadly and deeply the legal systems even of consolidated liberal democracies have until now been infused with ideas and principles that derive from long-established traditions of ethical thought rooted in religion. This is less a matter of whether glasses are half empty or half full and more a matter of whether they are either almost completely empty or still substantially full. The relevance of such questions to still-ongoing debates about secularization is patent, but they serve also to reflect a distinctive peculiarity about the terms of those debates, at least as they have been conducted among sociologists. Since Weber, secularization has been predominantly taken to concern long-term (and in that sense at least secular) developments in the area of culture and society. Trends toward cultural and/or social secularization, associated with—so the claim

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goes—progressively declining levels of individual religious adherence, belief, and observance are readily understood, however intense the disagreements about the extent to which such trends are taking place and how they might reliably be identified, measured, and assessed. Equally, at the collective level the notion of secularization can relatively unproblematically be applied to whole cultures and societies or parts of them. In this context a special focus is placed by sociologists of religion on the secularization of churches or other religious organizations in a relatively straightforward manner, readily applicable to cases where there is judged to be a dilution of, or a turning away from, standards once firmly rooted in the religious principles of a particular tradition. Thus, in the case of the U.K.’s Catholic adoption agencies, the acceptance of the new antidiscrimination rule, were it to occur, would readily be seen as a secularizing shift. One aspect of secularization that is routinely ignored in the sociological debates, however—and one that should, arguably, occupy a central place—is the secularization of the state, the institutional locus (in the modern world at least) where the requirements of authoritative rules are worked out, maintained, executed, and over time reformed. It is not that the action of political actors or even state authorities is routinely ignored; indeed, in some distinguished contributions from, for example, David Martin (1978) and Jose- Casanova (1994) such action and its consequences are given great emphasis, as the interplay between political exigencies and religious claims is shown to be negotiated in different ways in different contexts.2 Rather, the problem is that the state itself is not seen as a subject of secularization because of the assumption, borrowed from long-standing habits of thought among West European (especially Roman Catholic) Christians, that the state is, ever has been, and must always be essentially secular—and therefore not itself subject to secularizing trends or pressures.3 Nor have political scientists concerned themselves much with state secularization, despite their particular concern with the structures and processes of state institutions as they have developed across time. In his illuminating discussion of the “double dualist system of classification” that was instinct to premodern Catholic Christianity, Jose- Casanova locates the state firmly: it belongs to and inhabits “this world” rather than the “other [heavenly] world.” While the church as a divine institution uniquely bridges both worlds and represents an enclave of religion within “this world,” the state remains unambiguously— indeed, doubly—secular: “Politically, there was the transcendental City of God (Heavenly Kingdom), its sacramental representation here on earth by the Church (the Papal Kingdom), and the City of Man

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proper (the Holy Roman Empire and all the Christian Kingdoms).”4 Leaving aside what nowadays will be seen as esoteric, even arcane, references to the Heavenly and Papal kingdoms, the concluding reference to the Holy Roman Empire and the Christian kingdoms is particularly striking since the use of those very labels implies a claim that they, at least adjectivally, were in some way religious—if also, doubtless, in some way secular. Charlemagne’s creation of the Holy Roman Empire can, for example, be seen on one account at least to represent a heroic attempt to lend earthly reality to a patristic vision of Christian mankind by casting its institutions as a single, fully integrated—almost organic—whole. Paul Johnson (1976), for example, judges the Carolingian experiment in the following terms: “Never before or since has any human society come closer to operating as a unity, wholly committed to a perfectionist programme of conduct. Never again was Christianity to attempt so comprehensively to realize itself as a human institution, as well as a divine one.”5 In this Charlemagne can of course be represented as the carrier of the old Germanic idea of sacral kingship that owed as much to pagan as to Christian tradition, and it would appear that in the ninth century of the Common Era, both were combined in a distinctive religio-political amalgam.6 Whether or not one agrees with these assessments of the Carolingian experiment, mention of it serves to raise the general point that the instrumentalities of state power and authority can be—and indeed often have been—utilized for religious ends in Christian Europe as much as in other parts of the world. In the case of European Christianity during the Middle Ages, monarchs were routinely consecrated at their coronations by high church officials, usually archbishops or bishops, or even—as in the case of Charlemagne himself—by the pope. Church involvement in coronations was transparently intended, inter alia, to ensure that the crowned monarchs would support and assist the church in its divine mission. While the Catholic Church perennially attempted to maintain a distinction between the separate spheres of a temporal regnum and a spiritual sacerdotium, and to assert its sole jurisdiction in the latter, it also upheld the duty of the temporal authorities to aid the church in serving its religious ends, however indirectly. As Christians, of course the holders of temporal authority stood under the spiritual authority and discipline of the papacy. Badie and Birnbaum (1983) argue that it was the struggle to assert these claims that “marked the real beginnings of the separation of the spiritual from the temporal, reflecting the Church’s claim to full autonomy of action in the spiritual domain and its denial of the right of princes and emperors to meddle in its affairs.”7 But the papacy’s

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claim that a clear distinction be maintained between “the power of the pope or auctoritas, which proceeds directly from Christ, and the power of the king or potestas, which is limited to the administration of earthly affairs,”8 should be seen more as a bid to establish precedence than an attempt to achieve separation; it maintained the insistence that the administration of earthly affairs be conducted so as to assist the church. And at times, for example, between the papal reigns of Gregory VII (1073–85), the pope traditionally associated with this attempted Papal Revolution, and Innocent III (1198–1216), when the authority of emperors, kings, and feudal magnates were periodically reduced by fratricidal conflicts, the popes were able occasionally to make a reality of these claims.9 Nor did the Reformation, despite the seismic changes that it wrought in church-state relations in the sixteenth century, put an end to the principle that the temporal authorities had religious responsibilities, in addition to their duty of care for the security and material welfare of their populations. Indeed, on one view, the Reformation can be seen in the countries of Northern Europe where it became fully institutionalized as greatly extending the scope of the religious duties of all holders of public office. Max Weber’s striking image of the breaking of the monastery walls at the Reformation, the removal of the barrier between the closed world of the religious orders and the outside world, can be interpreted in diametrically opposite ways. For Casanova, it represented the destruction of the religious enclave and the triumph of the secular over the religious order within “this world”: “If before, it was the religious realm which appeared to be the all-encompassing reality, within which the secular realm found its proper place, now the secular sphere will be the all-encompassing reality, to which the religious sphere will have to adapt.”10 The alternative view is that the removal of the barriers between ostensibly religious and secular spaces had the effect of releasing religion from its previous confines, thereby allowing it to flow out and permeate the wider society so that, for example, the idea of God-given vocations no longer applied only to church functions but to all licit roles in society—to ploughmen and princes as much as to priests and prelates. This change was all the more significant since it coincided with and contributed to (not least by the transfer of church property and wealth to the coffers of the temporal authorities) the emergence of the modern state. The state takeover of church wealth involved its secularization in the narrow legalistic sense, but while much of this patrimony was diverted to secular purposes, authority within the institutional church itself as it continued to exist under state auspices involved a sacralization of the

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state. During the ensuing absolutist phase, this new dispensation was of course theorized and justified in one form or another of the divine right of kings. The emergent pattern of the modern state was from its beginnings in sixteenth-century Europe a confessional institution committed to the upholding and, where opportunity offered, the extending of the geographical reach of particular states’ favored religious traditions. The birth of the modern state system as a society of states, which is conventionally dated from the 1648 Peace of Westphalia, did require the signatory territorial authorities thenceforth to desist from attempts by diplomacy or war forcibly to change the religious adherence of target populations, but this only hobbled the actions in the international arena of what remained in all essentials until the late eighteenth-century confessional states. Indeed, the Westphalian treaties buttressed the prohibition against religious wars precisely by insisting on the sovereign right of the state authorities of a particular territory to impose a particular confession on their subject populations on the basis of the cuius regio eius religio rule (literally, whose the region, to him the religion), inherited from the 1555 Treaty of Augsburg and now, finally, set in stone. In fact, from 1648 on, the recognition of the exclusive authority of state authorities in matters of religion led to a new and decisive phase in the consolidation of church settlements aimed at enforcing conformity to the locally established religion and penalizing or expelling those who refused to conform.11 This process of the “confessionalization” (in German, Konfessionalisierung) of populations continued for long after 1648, as was signified by such famous (or notorious) episodes as the Revocation of the Edict of Nantes in France in 1685 or the expulsion of many thousands of Protestants from the archbishopric of Salzburg in the 1720s. These episodes were only the most dramatic symptoms of the widespread deployment of systems of penal law that undergirded the religious monopolies of the established churches under state management and control across Europe, north, south, east, and west. The effect of the 1648 Peace and the driving forward of confessionalization projects was to freeze the confessional borders of Europe in a manner that has survived in large part to the present day. The confessional map of Europe continued well into the twentieth century to be dominated by the monoconfessional blocs of Roman Catholic, Protestant, and Eastern Orthodox in the southern, northern, and eastern parts of Europe separated from each other by belts of multiconfessional territories, where the principal traditions abutted on each other.12 Nor have secularizing trends of declining levels of religious

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belief and observance led to the erasure of the rooted patterns of confessional identity that still underlay these distributions at the start of the twenty-first century; in Grace Davie’s terms, habits of belonging survive even where traditions of believing and practice decay.13 As Table 6.1 shows, thirty-eight out of Europe’s forty-six national territories as of the year 2000 (83 percent) continue to exhibit single-confession majorities, and thirty-three of these (72 percent) have supermajorities (i.e., populations in which more than two-thirds share a single confessional identity). Thirteen countries even have over 90 percent of their population sharing a single identity. However crude, these figures can be taken to demonstrate that, despite the massive economic, social, and demographic changes that have occurred over the last two centuries, the early modern confessional state continues to throw a long shadow across contemporary Europe. Of course the phenomenon of confessional majoritarianism in so many parts of Europe does not imply that these majorities represent cohesive phalanxes of religious belief and opinion. Under current conditions even the most solid confessional identity majorities—such as the Roman Catholic, Protestant, and Orthodox majorities in, respectively, Spain, Iceland, and Greece—are internally divided along many dimensions of belief, practice, and ethical viewpoint. In addition to these internal divisions and differences there is also in most European countries a growing penumbra of alternative traditions, some of them longstanding and others, such as those of the New Religious Movements (NRMs), novel and/or often exotic in their provenance (see the fractionalization scores in Table 6.1 for one indication of existing degrees of religious pluralism). While the broad outlines of Europe’s confessional map have changed little since the end of the religious wars in the mid-seventeenth century, patterns of church-state relations have of course been transformed, as the penal and discriminatory laws and regulations that underwrote individual state church monopolies were progressively relaxed, religious landscapes became more varied and pluralistic, and developing liberal-democratic states responded to pressures to extend their remit into ever-wider areas of life. For upholders of a range of secularization theories, these developments have typically been taken as confirming instances of an ongoing general process of secularization, however differently or distinctively articulated that may have developed under the force of local circumstances. As with other predictive theories, however, secularization in some of its less

Table 6.1

The long shadow of the confessional state in Europe Fractionalization index

Confessional majoritarianism by tradition and country %

Catholic

Protestant Orthodox

91– 100 Spain: 99.0

Iceland: 99.0

Muslim

Other

Turkey: 99.8

0.0561 Turkey

Cypriot, Turkish:* 99.0

0.1472 Spain 0.2027 Iceland

Luxembourg: 97.0

0.1778 Luxembourg

Portugal: 97.0

0.2346 Portugal Norway: 95.17

0.1889 Norway Azerbaijan: 94.7 Greece: 93.0

Poland: 92.2

0.2753 Iceland

Malta: 91.0 Andorra: 89.0 Croatia: 88.5

Armenia: 91.9

0.1045 Malta 0.3761 Armenia

Finland: 89.0

0.2012 Andorra 0.2609 Finland 0.2120 Croatia

Denmark: 86.27

0.2279 Denmark

Lithuania: 85.0

0.3048 Lithuania

Italy: 84.95

0.3048 Italy Sweden: 84.0

0.4594 Sweden Bulgaria: 82.0

71– 80

0.1639 Greece 0.1485 Poland

Ireland: 92.0

81– 90

0.2860 Azerbaijan

0.4656 Bulgaria

Belgium: 80.9

0.3380 Belgium

Liechtenstein: 80.0

0.4296 Liechtenstein

Austria: 78.0

Cypriot, Greek:* 78.0

0.4184 Austria

Romania: 77.0

0.5060 Romania

Table 6.1

(continued ) Fractionalization index

Confessional majoritarianism by tradition and country %

Catholic

Protestant Orthodox

Muslim

Other

Slovenia: 76.0

0.2958 Slovenia Georgia: 75.0

0.6392 Georgia

61–

Belarus: 70.0

0.6816 Belarus

70

Moldova: 70.0

0.7287 Moldova

France: 69.6 Hungary: 67.5

0.4921 France 0.5677 Hungary

Slovakia: 67.0

0.5104 Slovakia Albania: 65.0

51– 60

0.7597 Albania

Yugoslavia:* 60.0 FYROM:* 59.3 United Kingdom: 53.0

0.7499 United Kingdom Russia: 51.7

41– 50

0.6617 Russia

Switzerland:1 46.1

0.6460 Switzerland BosniaHerzegovina:2 44.0

31– 40

0.5777 BosniaHerzegovina

Czech Republic:3 40.0 [0.7057]

0.7057 Czech Republic Estonia:4 36.5 Germany:5 35.7

0.7230 Germany

Netherlands:6 34.5

0.7662 Netherlands Latvia:7 34.0

Cases 17 with more than 50%

0.8022 Estonia

6

11

4

0

0.7969 Latvia

America’s Secular State and the Unsecular State of Europe 117 Table 6.1

(continued ) Fractionalization index

Confessional majoritarianism by tradition and country %

Protestant Orthodox

Muslim

Other

Cases 3 with 50% or less

Catholic

1

0

1

2

Total 20 cases

7

11

5

2

*No fractionalization index available. 1. 2. 3. 4. 5. 6. 7.

Switzerland, other confessional groups: Protestant 40 percent; Other 8.9 percent. Bosnia-Herzegovina, other confessional groups: Orthodox 31 percent; Catholic 15 percent; Protestant 4 percent. Czech Republic, other confessional groups: Other 38.6 percent; Protestant 4 percent; Orthodox 2 percent. Estonia, other confessional groups: Protestant 17.2 percent; Orthodox 16.5 percent; Catholic 0.6 percent. Germany, other confessional groups: Catholic 33.7 percent; Other 26.4 percent. Netherlands: Protestant 26.9 percent; Other 12.9 percent. Latvia: Orthodox 22.8 percent; Protestant 22.2 percent; Catholic 19.7 percent.

Source: D. Barrett et al., eds., World Christian Encyclopedia: A Comparative Study of Churches and Religions in the Modern World AD 1900–2000, 2nd ed. (New York: Oxford University Press, 2001). Herfindahl fractionalization scores calculated from same source leaving out groups that count for less than one percent of the population.

subtle formulations implies the existence of some end-state to which the process tends, typically an ever-increasing secularity in culture, society, economy, and (even, on occasion) the state. Insofar as this implies the progressive elimination of the religious factor from these different spheres, it is open to the criticism that it ignores or discounts the existence of countervailing trends. In some areas—such as the much-touted contemporary resurgence of the religious factor in politics, for example—the existence of these countertrends seems to be well attested.14 A rather different critique stresses the implausibility of the vision of a complete disappearance of the religious factor from the public realm, outside, that is, of the increasingly narrow area of the private realm. Debates around these issues can be seen to revolve in part around conceptual considerations—what counts as religious, what secular—and in part around the interpretation of relevant evidence. The very notion of the secular state provides a striking case in point. For some, the use of the qualifying term secular is seen as redundant because the state is regarded as essentially secular by definition, while from an alternative point of view the term only provides

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a useful antonym to the concept of the religious state, and its careful use actually suggests the existence of a continuum between (very) secular and (very) religious states across a full range of intermediate positions.15 As to arguments about relevant evidence, “secularizationists” might point to the record of the retreat from confessionalism just alluded to as one of the trends that accompanied the emergence of the modern (secular) state proprie dictu, implying that before it becomes secular a particular state cannot be considered modern. The suggestion put forward here is that from a more advantageous viewpoint, the survival of many of the marks of the early modern confessional state can be seen to amount to more than mere anachronistic relics. This vantage point also allows a more perspicuous overview of ongoing changes in the field of state-religion relations; it reveals that, contrary to secularizationists’ expectations, there has been a reverse trend in recent decades toward a reengagement of state authorities with the religious sphere across a range of public policy fronts.

The Secul ar State: An Amer ican Invention A millennium separates Charlemagne’s Aix-la-Chapelle in the 780s from the Founding Fathers of the United States of America forgathered in Philadelphia in the 1780s. More significantly in the present context, it separates the launching of two contrasting but equally bold experiments in statecraft: that of Charlemagne as the would-be creator of an integralist Christian commonwealth and that of the Founding Fathers of the American Republic who can be seen as the authors of the world’s first secular state. Keith Ward (2000) claims that the birthday of the secular state, properly so called, can be precisely dated, somewhat shockingly, not to the French Revolution, with its notoriously anticlerical, if not always antireligious antecedents, but to the political arrangements thrown up by the American Revolution shortly before. “In 1789 the American Revolution introduced to the world in a formal way the idea of a secular state. The first amendment to the Constitution of the United States of America, drafted two years later, laid down that there would be ‘no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The idea of a secular state was born.”16 Until that point on the Eastern seaboard of the North American continent, the norm had of course been church establishment, as it had been elsewhere in the New World, for example, in Latin America, as well as throughout the Old (European) World.17 Bellah (1980) has pointed to the contrast between the many implicit religious references in the Declaration of Independence and

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their complete absence from the Constitution.18 The liberal idea as represented by the Constitution and reinforced by the first ten amendments adopted in 1790 endorsed an incipiently secular view of the state as “a purely neutral mechanism without purposes or values. Its sole function is to protect the rights of individuals, that is, to protect freedom.”19 The lack of any anchorage in the constitutional order— with which they might be deemed inconsistent—has not prevented the growth in the U.S. polity of many marks of civil religion, although Bellah judges these to be merely “formal and in a sense marginal,” despite their deriving from a distinctive American republican tradition.20 For Tocqueville, with his more sanguine earlier view, the virtues of the American polity rested in part on a “tacit bargain through which religion kept out of politics, and politics did not interfere with religion,” a bargain that American men of religion (they were almost entirely men) understood and had kept to; their absence from the different branches of government had initially come as a surprise to him in the context of what he saw as the vibrancy of American religion until he realized that there might be a positive connection.21 For other liberal observers of the American scene, the separation of church and state has continued to be seen as one of the efficient secrets of its constitutional structure, a virtuous arrangement worthy of emulation by all other states. It is however one that no longer seems immune from criticism or secure in the United States itself, while elsewhere it has been more honored in the breach than the observance.22 Indeed, in the fifty or so states that constitute Europe from the Atlantic to the Ural and Caucasus mountains, the great majority of which are now more or less consolidated liberal democracies, there is not a single country whose arrangements match up to the strict separationist interpretation of the Constitution that was so influential in the jurisprudence of the U.S. Supreme Court at least between 1947 and 1981. It could even be argued that France, to whom Alexis de Tocqueville first addressed his study of democracy in America, has since its own eighteenth-century great revolution provided not just a markedly different but also a more influential model of secularism as a political project. In France, secular radicals for a short time during the French Revolution launched Europe’s first attempt to dismantle state confessionalism (in this case the Bourbon Catholic variety) completely, taking church property into state ownership and even attempting to abolish Christianity altogether at one point in order to replace it with a cult of Reason. According to Rémond (1999), “France was the [European] country to make the first breach in the old order founded on the principle of state religion. . . . For the first time in a European society,

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belonging to a denomination would no longer be a measure of individual rights or a condition of citizenship.”23 Although the uncoupling of citizenship from denominational belonging was never subsequently to be overridden in France—with the solitary brief exception of the Vichy regime’s exclusion of the Jews in 1940—the nineteenth century was in fact a period of partial restoration and retrenchment in churchstate relations. Starting from 1801, a Napoleonic system of multiple establishment of recognized religions was set more or less firmly in place for over a century, supported by arrangements for public subsidy, the provision of religious education via the public school system, and so on. Only in 1905 did the country finally institutionalize its distinctive laicist version of the separation of church and state that had been pioneered under very different auspices and circumstances in the United States. Remarkably, separation was deemed consistent with the taking into state ownership all churches built prior to 1905, and over the succeeding hundred years a number of other derogations from strict separation were made, for example, in terms of the reintegration in 1918 of the three eastern provinces (where the Napoleonic arrangements had, somewhat ironically, survived, because in 1905 they had been part of the German Reich). In addition, after the Second World War, despite the constitutional reaffirmation that the republic was laïque, other compromises with strict separation were made across metropolitan France so that by the time of the recent centenary of the Separation Act, many voices were being raised in favor of a revision to bring the legislative framework more into line with current practice. Neither the American nor French form of state secularism has, however, managed to establish itself as the model that states aspiring to liberalize and democratize their political systems should emulate, even though both forms have occasionally found imitators in different parts of the world.24 Secular liberals have often held one or the other (rarely both together) as worthy of emulation, claiming that they represent in their secularity a quality essential to political modernity. But the American and French patterns of church-state relations failed to gain many imitators among the builders of those modern states that eventually emerged from the shells of the old European empires. The American pattern, based on what Stepan (2000) calls the “twin tolerations”—freedom of religion from the state and freedom of the state from religion—remained a unique aspect of the American constitution, relying as it did as much on the support of religious forces that were antiestablishment, as of secular liberals with their antireligious animus.25 While in Latin America and parts of southern Europe other

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secularist radicals experimented with introducing, sometimes in combination, a number of features of the French and American models, elsewhere in the West throughout the nineteenth century systems of church establishment of various types continued to prevail, albeit progressively without the support provided by penal sanctions against dissenters and nonconformists. More and more, legislative reforms introduced measures first of religious toleration, then religious freedom, and finally, in the early twentieth century, many of the systems of formal religious establishment were dismantled in the interest ostensibly of full equality among the religious and as between the religious and the nonreligious.26 Only in Russia and Turkey did the Bolshevik and Turkish revolutionaries around the same time emulate the radical secularism of the most extreme French revolutionaries and launch projects aimed at the complete secularization of state and society. Elsewhere in Europe, formal establishment continued in much of the Protestant north, while in most Catholic countries concordats or concordat-like agreements were eventually negotiated that guaranteed the status and standing of the Roman Catholic Church; in almost all parts of Europe indeed, favorable arrangements of one sort or another were introduced for the upkeep and functioning of recognized (and thus favored) religious institutions—arrangements that, in the United States would in almost all cases have been ruled incompatible with the nonestablishment norm enshrined in the First Amendment to the Constitution.27 In a generalized sense secularity (if not secularism) undoubtedly became a key feature of modernity in the West in everwider fields of public life, including in those states that retained significant elements of religious establishment.28 There was a progressive realization that, especially in a context of increasing religious pluralism, the state was generally ill suited to exercise jurisdiction in matters of religion and anyway had no compelling interest that called for its close involvement except at the margin, where issues of social protection or public morality might supervene. Progressively it was conceded that religion itself should be treated as a private matter beyond the proper purview of state authorities and that freedom of religious belief and practice should be protected as core elements of systems of human rights. These were finally entrenched in the 1948 Universal Declaration of Human Rights and a series of other international covenants, conventions, and treaties, such as The European Convention on Human Rights and Fundamental Freedoms (1950), which committed signatories to uphold the principle of freedom of religion, belief, and conscience.29 In the West, guarantees of these freedoms were typically incorporated in constitutions and national systems of

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law—in the case of Germany and France, respectively, in the Basic Law (1949) and the Constitution of the Fifth Republic (1958), while in Britain, which lacked (and lacks) a codified constitution, religious freedoms had been secured by the progressive legislative removal of measures discriminating against those of dissenting or nonconformist religious views and practices. The emergent consensus in the West on religious freedom was further complemented by the parallel stepwise retreat from clerical control and oversight in the fields of education, welfare, and the control of public morality where it had once been powerfully entrenched, although in few cases was this retreat pressed toward full completion. The greatly expanded role of the state in these fields contrasted with its withdrawal from managing religion, but it also entailed a range of contacts state officials had with religious organizations as they continued to retain an interest and presence. The overall result was without doubt a tendency for religious organizations and institutions to be progressively marginalized—though rarely eliminated—and for society and culture to be further secularized. In the Soviet bloc after 1945, patterns of development were quite different: while principles of religious freedom were formally acknowledged, secularist programs and projects continued periodically to be pressed forward by the state and party authorities with the aim of weakening and, where possible, destroying the influence of religious groups and institutions.30 In 1967 Albania even launched an attempt to ban all religious practices outright. The secularist project posted few final successes, however, and from 1990 the collapse of Soviet communism and the disintegration of the communist bloc led to the opening of a new era in the field of church-state relations characterized by a combination of unprecedented levels of religious freedom on the part of the adherents of the historically established religious traditions, as if to compensate for the depredations of the previous regime. The generally positive stance of the post-transition governments, however, suggests no Jeffersonian wall of separation between church and state. It would seem as though after the fall of the Berlin wall the time for walls was at an end in the consolidating liberal democracies of Eastern Europe, while in their more traditionally configured counterparts in the Western half of the continent wall-building has only episodically been in fashion.

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A S ec ul ar Trend Away f ro m State S ec ul ar i s m? In 1982 David Barrett and his team first published data that, among other things, provided a basis for the classification of all the world’s territories in terms of the nature of state authorities’ relationships with religious institutions and groups. The first aspect of these relationships related to the de jure “state religion or philosophy” of individual countries; that is, “how sovereign or non-sovereign states or ruling regimes or colonial governments officially see themselves . . . in their formal relation to religion, religions, or churches . . ., to what extent they are formally, officially, or explicitly concerned with religion or claim the right to intervene in religious affairs, and to what extent they formally acknowledge or recognize or approve of religions or churches.”31 On this basis states were coded as either Religious (most often also with a commitment to a particular named confession), Secular, or Atheistic. The religious coding was based in part on the core notion that is outlined in Figure 6.1. Applying the full specification for this and the other codings to the cases for 1980, out of thirty-five European territories listed, only five coded as Secular in the sense that the “State is secular, promoting neither religion nor irreligion,” and nine were deemed Atheistic, meaning that they were committed to confining or even eliminating religion.32 On the other hand, twenty-one European states or governments (60 Figure 6.1 A state should be deemed religious in some nontrivial way if it is identified/ formally linked/ heavily involved/ joined in law with a religion or religions or churches and its/their promotion.

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percent) were found to be committed in one way or another to the support of religion and/or religious institutions. Of these, fourteen were associated with single confessional traditions, while Finland, unusually, supported two (in the form of both the Lutheran and Russian Orthodox established churches). The other six were committed to the support of a plurality of religious organizations that fell little short of plural establishment; thus Belgium was classified as Religious on the basis that there the state recognized and supported all of six denominations: Catholicism, Protestantism, Judaism, Anglicanism, Islam, and the (Greek and Russian) Orthodox Church.33 Other marks of “state religiosity” that were evidently taken into account in coding particular cases were more striking. In the case, for example, of the Republic of Ireland, there is the phenomenon of what can be called preambular religion, since the preamble to the 1937 Constitution opens with the invocation of “the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions of both men and States must be referred.”34 Paradoxically, even some of the states identified in 1982 as de jure Atheist, and so committed to confining or even eliminating religion, formally acknowledged the special standing of particular religious traditions; thus in Bulgaria the 1949 Religious Denominations Act declared, “The Bulgarian Orthodox Church is the traditional faith of the Bulgarian people. It is bound up with their history and, as such, its nature and its spirit can be considered a church of the popular democracy.”35 In this connection it is of note that in all of the Atheist states, including the only one, Albania, that in 1980 was still officially committed to actually repressing all religion, religious affairs were closely monitored and controlled by agencies of the state and Communist Party in ways that seriously violated norms of both religious freedom and state-religion separation. Formal, or de jure, rules and commitments constituted only the first of two dimensions on which the secularity or religiosity of Europe’s states was assessed, however. When other evidence relating to de facto relations of support and/or control between governments and religious organisations is added and cross-tabulated with the de jure attributions, a fuller picture emerges that further underlines the religious partiality and entanglement of the state in Europe circa 1980.36 In this fuller, two-dimensional picture not a single case of full state neutrality is to be found in Europe as of 1980; the cell of the cross-tabulation that combines a Secular state attribution with “state noninterference in the affairs of religious organizations” is completely empty. The most populated cell by far is that occupied by thirteen countries where the state was deemed to be de jure supportive and de facto directly

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supplying religious organisations with large subsidies. In the opposite quarter of the distribution, the nine East European states are located together, all deemed Atheistic but varying in the degree of control exercised over religion, with Yugoslavia effectively intervening against the politicization of religion, while Albania remained committed to its campaign of eradication of both the majority Islamic faith and a number of Christian denominations. On these measures, then, in none of the thirty-five European territories included in Barrett’s 1980 survey could the state authorities be adjudged neutral. The two decades after 1980 saw a number of remarkable changes that affected the distributions just identified, however. The collapse of communism and the disintegration of the Soviet Union, Yugoslavia, and Czechoslovakia led to an increase in the number of relevant country cases from thirty-five to forty-eight (a number that would have been higher by one had East and West Germany, against the trend, not been reunified). Communism, with its animus against organized religion, had been responsible for the classification of the East European states as Atheist in 1980 when the Cold War was still ongoing. The shifts that occurred between then and 2000, for which the second edition of the Barrett encyclopedia provided data, indicates by their number and direction the effect of the removal of communist political hegemony; almost none of the former communist territories remained classified where they had been only twenty years before. The exception was the rump of Yugoslavia (Serbia and Montenegro) where the embargo on religious groups engaging in political activity continued in 2000 to be policed by the Milosevic regime, albeit with extreme variations as between the Serbian Orthodox Church, which was favored, and others, such as the breakaway Montenegrin Orthodox Church and Kosovan Islam, which were disfavored or positively persecuted. All the other successor states of the communist bloc were deemed to have shifted from the Atheistic to the Secular (ten cases) or Religious classification (eleven cases).37 The other significant trend observed between 1980 and 2000 in Eastern Europe was reflected by the shift toward providing support for historically established religious traditions. Almost everywhere change has been in the direction of dismantling controls on religion and increasing the availability of state assistance, whether in the form of funds for the rebuilding of cathedrals, as in Russia, or the widespread use of national taxation systems to funnel resources to recognized denominations. It is notable that four states (Estonia, Lithuania, Slovakia, and the Czech Republic) were now shown as combining a Secular de jure status while de facto adopting a stance of complete

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state noninterference in church matters, the “state religious neutrality” combination, which in 1980 no European state was found to match. The trend was only a modest one, however, affecting as it did only four out of forty-eight territories as of 2000; as already noted, more countries moved from the Atheist category to the Religious than to the Secular, and in the case of the one significant shift among the Western European states, that of Sweden from the Religious to the Secular category, the degree of de facto separation introduced was distinctly modest.38 While Sweden was moving toward a form of disestablishment, moreover, in Romania voices were being raised to have the Romanian Orthodox Church declared the national church. And around the same time, in 1997, new Russian legislation, which had been prepared in consultation with the leadership of the Orthodox Church, cut back on the religious freedoms that an exemplary Freedom of Conscience law had introduced in 1990.39

Ferrar i’s Model of a Developing E qu il ibr ium i n Europe In 1999 canon lawyer Silvio Ferrari argued that despite all the variations in church-state relations to be found in Western Europe, there actually existed a common model of relationship between the state and religious faiths. The “outmoded” conventional classifications of different patterns, he argued, obscured the existence of this common model; three-way distinctions between separatist, concordat-based, and national (or state) establishment systems were too much based on the formal elements of institutional relationships and took no notice of the “legal substance.” When attention was paid to the latter instead, evidence of “a process of rapprochement that is going on at the very level of legislative contents between the national laws of the various countries of Western Europe” came to light, indicating the existence of a common model as an emergent reality.40 There were also reasons to believe that this model would prove sufficiently robust to serve as a template for the recasting of church-state relations in Eastern Europe after the fall of communism. The model is characterized first by the common recognition of individuals’ rights to religious liberty, something that almost all of Europe’s fifty-odd states have signed up to in the form of various declarations of human rights since 1948. Anomalies in the practical recognition of religious liberty and all its entailments—such as the existence of the constitutional ban in Greece on proselytism—were gradually being eliminated, although novel problems in connection

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with the toleration of several New Religious Movements or so-called cults, such as the Church of Scientology or the Moonies, continued to pose problems.41 The greatest difficulties have attached to the sets of arrangements, which all states employ in a variety of different forms, governing issues of recognition on the part of state authorities and touching whether a particular group should be regarded as a bona fide religious body. Since access to material benefits depends in most cases on winning such recognition at one or another level of what might be called different “hierarchies of recognition,” the issue is not a trivial one. What in particular distinguishes the European common model, however, is its privileging of religion: “A religious subsector is singled out within the public sector. . . . Inside it the various collective religious subjects (churches, denominations, and religious communities) are free to act in conditions of substantial advantage compared to those collective subjects that are not religious. The state’s only role is to see that the players respect the rules of the game and the boundaries of the playing field.”42 The model is described as being of relatively recent provenance while “deeply rooted in the political and legal culture of contemporary Western Europe,” something that also connects it to the heritage of the confessional state. Ferrari is not alone in observing this privileged standing of religious groups in Europe, despite the continent’s reputation for uniquely high levels of secularization. Rémond concludes his historical survey of religion in European society as follows: “The entire evolution of contemporary society has revealed the existence of a middle sector which has considerably expanded, of the collective private, and a mixed domain in which private initiative and intervention by the authorities intermingle; religion is part of it and therefore has a public expression recognized to benefit from the liberties acknowledged for all components of civil society.”43 While significant differences of detail continue to mark distinctive national patterns there exists, he argued, “a fairly general agreement on fundamentals which enables one to say that today there is a way, both common to all European peoples and original as regards the rest of the world, of regulating religion-society relations.”44 Following both Ferrari and Rémond, the European model appears to accord to religious groups and institutions a privileged status relative to that of nonreligious groups, thereby offending against one of the cardinal principles of church-state separation as identified by Robert Audi (1989).45 In this the European model is inconsistent with the strict separationist tradition of the U.S. Supreme Court.46 American religious conservatives, such as Richard Neuhaus, complain

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that religious groups and institutions in the United States continue to be positively disadvantaged to the point of being rendered invisible on “the public square” while in most parts of an otherwise-secular Europe religious bodies are often accorded privileged rights of consultation.47 The U.S.-Europe contrast is perhaps much less stark than this comment suggests if the according of tax-free status in America to religious groups is taken into account and the prominence of American religious campaigning organizations in the public arena is acknowledged. The advantages afforded by “protected area” status in Europe might also, despite its privileges, be presented as a virtual Tocquevillian “tacit bargain” or trade-off: the protection of secular space from the claims of religious groups to influence the content and scope of legislation, in exchange for the protection of religious groups and institutions from state encroachment. As the previous reference to the U.K. controversy over nondiscrimination against same-sex partners in adoption makes clear, however, the terms of this bargain, if such it is, continue to be hotly contested. A question-begging feature of Ferrari’s model as he presents it is that it is centered on what he sees as the secular nature of the modern state, in French, its laïcité; “the fundamental principles of the common European model of relationships between the state and the religious communities . . . are quite rigid. . . . [They] have been summed up in the formula ‘the secular state.’”48 It might instead be argued on the basis of the Barrett data already reviewed that what distinguishes the European model is not state laïcité at all but “state religiosity,” particularly when contrasted with the U.S. model. This is a point that emerges even more clearly from the analyses of Barro and McCleary (2005) and of Jonathan Fox (2008) using very large worldwide data collections for mapping church-state connectedness.49 Table 6.2 displays some of the headline results arising from a descriptive analysis of the Fox data archive for the year 2002, arranged so as to illustrate differences and similarities between Eastern and Western Europe. As the note explains, Fox’s SRAS (Separation of Religion and State) measure runs from 0.00 corresponding to complete separation of religion and state, a score represented alone out of 175 country cases by the USA. It is constructed on the basis of six batteries of variables including measures for state support for, or hostility against, different religions, the relative “weight” of state regulatory practices in the field of religion, and the use of state authority to impose religious standards on subject populations. As the Table 6.2 makes clear, no European state matches the record of the United States on SRAS as measured

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in this way, although the Netherlands and Estonia come close. The mean score for all twenty-three Western European countries is 19.17, where each whole point represents an instance of a derogation from, or infringement of, strict separationism. The Eastern European mean score at 24.24 is somewhat higher, evidently—as is easily noted from the table—as a result of the overall higher scores of the Orthodox countries. On the whole, with the possible exception of these latter countries, the picture is one of a broadly similar pattern across the whole continent characterized by a normal distribution of significant deviations from American separationism. As the other columns of Table 6.2 further illustrate using a combination of Cole Durham’s and Fox’s distinctions between different configurations of state-religion regimes, there continues to be significant variety in terms of overall institutional patterning.50 It is notable that using Fox’s coding, Separationist regimes are only to be found in Europe in France and Azerbaijan where each, furthermore, are found to score more highly than the Western and Eastern means, respectively, in terms of their deviation from full SRAS. The lowest scoring states are also the only ones coded as Accommodationist, a term that is taken to indicate a state’s posture of benevolent neutrality toward religion. It is particularly noteworthy in this context that the United States also is judged to count not as Separationist but as Accommodationist.51 The Cooperationist pattern, for which Germany can be taken as the prime exemplar, is well represented among the countries of the former Soviet bloc where nine are given this designation, the same number as are listed as having Endorsed Religion.52 Based on these codings only one Eastern country, Armenia, with the highest deviation from SRAS to be found across the whole of Europe, is judged to have instituted an Official Religion regime, while in Western Europe this designation is deemed appropriate for all of ten out a total of twenty-three cases. If, following Ferrari, then, the laïcité of the state is to be seen as a fundamental—even architectonic—principle of the European model of church-state relations, it would appear on this evidence to be more honored in the breach than the observance. Veit Bader, among others, has recently addressed the issues of institutional design that would have to be settled if such inconsistencies were to be removed and optimal arrangements made within what he calls a context of “associative democracy.”53

Table 6.2

The absence of church-state separation in Europe: Measures and typology Western democracies

0.00> 9.99

[USA Netherlands

SRAS score

0.00 1.25

10.00> Luxembourg 10.50 19.99 Sweden 12.17 Italy 13.00 Ireland 15.75 Greek 16.13 Cyprus Turkish Cyprus

16.96

Germany

19.88

20.00> Switzerland 29.99 Portugal France Andorra Austria Belgium Malta Norway Denmark Liechtenstein United Kingdom Spain Iceland

20.50 21.94 22.92 23.13 24.25 25.50 25.63 25.83 26.04 27.50 27.67 28.46 29.79

30.00> 39.99 Finland

32.88

Greece

33.31

40.00> 49.99 Mean Scores

19.17

State-religion regime type

Former Soviet bloc

SRAS score

State-religion regime Type

Accommodationist] Accommodationist Estonia Albania Slovenia

Cooperationist Cooperationist Cooperationist Endorsed religion Cooperationist BosniaHerzegovina Endorsed religion Yugoslavia Latvia Lithuania Cooperationist Czech Republic Slovakia Ukraine Cooperationist Endorsed religion Poland Separationist Croatia Official religion Hungary Cooperationist Romania Cooperationist Official religion Official religion Official religion Official religion Macedonia Official religion(s) Official religion Official religion Russia Official religion(s) Azerbaijan Moldova Official religion Georgia Belarus Bulgaria Armenia

3.52 Accommodationist 7.69 Accommodationist 11.96 Cooperationist

16.33 16.75 17.56 17.58

Cooperationist Cooperationist Cooperationist Cooperationist

18.19 Cooperationist 19.88 Cooperationist 19.99 Cooperationist

22.21 22.42 22.79 24.50

Endorsed religion Endorsed religion Cooperationist Endorsed religion

27.17 Endorsed religion

30.48 31.65 32.34 32.83 35.66 36.72 40.36

Endorsed religion Separationist Endorsed religion Endorsed religion Endorsed religion Endorsed religion Official religion

24.24

Fox’s SRAS index scores represent an overall measure of separation of religion and state (where 0 = full separation). It was obtained by combining six narrower-gauge measures for (a) state support for one or more religions, either officially or in practice; (b) state hostility toward religion; (c) comparative government treatment of different religions, including both benefits and restrictions; (d) government restrictions on the practice of religion by religious minorities; (e) government regulation of the majority religion; and (f) legislation of religious laws (Fox 2006). The state-religious regime type labels are a combination of those used by Fox (2006) and by Cole Durham (Durham 1996, 20–22). The latter’s “endorsed religion” is preferred to Fox’s “civil religion,” while Fox’s “official religion” is preferred to Durham’s “established church(es).” Source: J. Fox, “World Separation of Religion and State into the Twenty-First Century,” Comparative Political Studies 39, no. 5 (2006): 537–69.

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Ma ny Natio n s U nder God: Th e U ns ec ul ar State of Europe The implicit reference is to the words “one nation under God” as they are recited every day by pupils in public schools across the United States: one of the rites of Bellah’s civil religion in America. Since 1954 the words have been included in the so-called Pledge of Allegiance: “I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.” This explicit, albeit nondenominational, religious reference is only one of a number that mark the presence of civil religious elements in American public life within the overall context of a political system that is constitutionally bound to the principles of religious freedom and nonestablishment. With the resurgence of the religious factor in politics across the world, not least in the United States, these marks of public religiosity have again become controversial in some quarters.54 As the country that more than 200 years ago first introduced the world (the Christian world at least) to the model of the secular state, rejecting the principle of establishment of religion in order to safeguard full religious freedom (including, it should be noted, freedom from religious impositions), it is notable that the United States continues to wrestle with such issues as they arise in connection with such civil religious symbols. Meantime, across Europe, where in the great majority of states confessional majoritarianism is still to be found—however lightly it is worn, or even noticed, by most citizens—the principal civil religious rites continue to bear the stigmata of confessional differences, albeit more and more softened by an ethic of inclusion of other mainstream religious traditions. Given this relatively recent tendency, it is perhaps not surprising that the representatives of the other traditions can often be found to approve of many of the supportive linkages between the state and the locally dominant religious traditions, even if they do not benefit proportionately.55 The verdict—whether perverse or not—seems clear: after more than two hundred years the sixteen words of the U.S. Constitution’s First Amendment (and a fortiori the sixteen letters of either Jefferson’s “wall of separation” or the U.S. Supreme Court’s “strict separation”) seem to have failed, finally, to prevail over the twenty-eight letters of one of the English language’s longest and oddest words—“antidisestablishmentarianism”—and the stubborn realities it represents.56 These realities only in a minority of cases take the form of full official establishment of course, though, as has been noted, there are many

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gradations and shadings of official religion or of official support for religion to be found; they present, instead, as a variety of patterns of “soft” or virtual religious establishment seemingly dedicated to the working out—not always successfully—of different modus vivendi across the multiple points of interconnection between state authorities and the so-called faith communities, all without benefit (or bane) of Jefferson’s mythic wall.

Notes 1. The controversy temporarily reached great heights with the Roman Catholic Cardinal Archbishop of Westminster writing to all members of the British cabinet, and critics then claiming that he was attempting to blackmail government and Parliament. The outcome has been that there should be no derogation from the antidiscrimination law but that a twenty-one-month transition period should be allowed before it comes into force. 2. See D. Martin, Toward a General Theory of Secularization (Oxford: Basil Blackwell, 1978); and J. Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994). 3. See, for example, Bryan Wilson’s eloquent definition of secularization as “a process in which the major areas of social organization (economy, government, defense, law, education, health maintenance, and recreation) become differentiated and autonomous, and in which organized religion has finally relinquished the last remnants of the presidency that once it enjoyed over the whole gamut of social affairs.” See B. Wilson, “New Images of Christian Community,” in The Oxford Illustrated History of Christianity, ed. J. McManners (Oxford: Oxford UP, 1990), 587. This definition relies implicitly on the notion that the state as a secular (i.e., essentially nonreligious) organization tends under modern conditions to escape—or be emancipated—from the “presidency” of religious institutions. The formulation does not allow for the possibility that the state and for that matter the other “major areas of social organization” might, in some sense at least, have been religious once themselves, even if they are seen progressively to have ceased to be so. 4. J. Casanova, Public Religions in the Modern World, 14. 5. P. Johnson, A History of Christianity (Harmondsworth: Penguin Books, 1976), 177. “By the ninth century . . . the idea of a total Christian society had taken shape: the faith not only had answers, but definitive and compulsory answers, to questions on almost every aspect of human behaviour and arrangements” (Johnson 1976, 181). 6. R. Bendix, Kings or People: Power and the Mandate to Rule (Berkeley: University of Los Angeles Press, 1978), ch. 2

America’s Secular State and the Unsecular State of Europe 133 7. B. Badie and B. Birnbaum, The Sociology of the State (Chicago: University of Chicago Press, 1983), 87. 8. Badie and Birnbaum, Sociology of the State, 88. 9. H. J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983); S. Ehler and J. B. Morrall, Church and State Through the Centuries (London: Burnes & Oates, 1954). 10. Casanova, Public Religions, 15. 11. The two treaties that constituted the Peace of Westphalia did require certain rulers to tolerate the survival of some (but not all) dissenting traditions within their territories, but only in those territories where the same religious divisions had already existed in 1624. Elsewhere the only religious liberty assured by the treaties was that of the rulers, who alone could decide on the confessional allegiance of their populations. In the case of the Czech Lands, of course, this meant that the victory of the Catholic forces in 1620 was allowed to stand and the Hussite tradition continued to be forced out or driven underground. 12. See the confessional map of Europe in 1900 (developed from Rokkan’s path-breaking Conceptual Map of Europe) in J. Madeley, “A Framework for the Comparative Analysis of Church-State Relations in Europe,” in Church and State in Contemporary Europe: The Chimera of Neutrality, ed. J. T. S. Madeley and Z. Enyedi (London: Frank Cass, 2003), 28. 13. G. Davie, Religion in Modern Europe: A Memory Mutates (Oxford: Oxford University Press, 2000). 14. P. Norris, and R. Inglehart, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004); T. Byrnes and P. Katzenstein, eds., Religion in an Expanding Europe (Cambridge: Cambridge University Press, 2006). 15. See W. Cole Durham, “Perspectives in Religious Liberty: A Comparative Framework,” in Religious Human Rights in Global Perspective, ed. J. D. van der Vyver and J. Witte (The Hague: Martinus Nijhoff Publishers,1996). 16. K. Ward, Religion and Community (Oxford: Clarendon Press, 2000), 106. Ward is also careful to point out that the First Amendment was not born out of antireligious sentiment as such: “The institution of the secular state was not an abandonment of religion or a declaration of its unimportance to social life. It was a recognition of the fact that, in a society of many competing beliefs, no one set could reasonably be set up as normative. . . . This form of secularism could be called a secularism of positive tolerance, since it regards religious belief as of such importance that it cannot be left as a matter of unconsidered tradition.” (Ward 2000, 106–7) 17. F. H. Littell, From State Church to Pluralism: A Protestant Interpretation of Religion in American History (New York: Doubleday & Co., 1962).

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18. R. Bellah, “Religion and the Legitimation of the American Republic,” in R. Bellah and P. Hammond, Varieties of Civil Religion (San Francisco: Harpers & Row, 1980), 10. 19. Bellah, “Religion and the Legitimation of the American Republic,” 12. 20. Ibid. 21. D. Marquand and R. Nettler, eds., Religion and Democracy (Oxford: Blackwell, 2000), 1. 22. See A. Stepan, “Religion, Democracy, and the Twin Tolerations,” Journal of Democracy 11, no. 4 (2000): 37–57; J. Madeley, “European Liberal Democracy and the Principle of State Religious Neutrality,” in Church and State in Contemporary Europe, 1–22; R. J. Barro and R. McCleary, “Which Countries Have State Religions?” Quarterly Journal of Economics 4 (2005): 1331–70; and J. Fox, A World Survey of Religion and the State (Cambridge: Cambridge University Press, 2008). 23. R. Rémond, Religion and Society in Modern Europe (Oxford: Blackwell, 1999), 38. 24. A. Kuru, “Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies Toward Religion,” World Politics 59, no. 4 (2007): 568–94. 25. Stepan, “Religion, Democracy, and the Twin Tolerations.” 26. The turmoil after the First World War was a virtual “extinction event” for formal church establishment in much of Continental Europe. See J. Madeley, “Religion and the State,” in Routledge Handbook of Religion and Politics, ed. J. Haynes (London: Routledge, 2008). 27. M. Perry, Under God? Religious Faith and Liberal Democracy (Cambridge: Cambridge University Press, 2003). 28. C. Taylor, The Secular Age (Cambridge, MA: Belknap Press, 2007), passim. 29. B. Boyle and J. Sheen, eds., Freedom of Religion and Belief: A World Report (London: Routledge, 1997). 30. See, for example, S. Ramet, Religious Policy in the Soviet Union (Cambridge: Cambridge University Press, 1993). 31. D. Barrett et al., eds., World Christian Encyclopedia: A Comparative Study of Churches and Religions in the Modern World AD 1900–2000 (New York: Oxford UP, 1982), 96. 32. For a tabular presentation of these attributions and the changes in them up to 2000, see Madeley, “European Liberal Democracy and the Principle of State Religious Neutrality,” in Church and State in Contemporary Europe, 13, 16. 33. In addition, the support of “representatives of organizations recognized by law who extend moral services, on the basis of nonconfessional philosophy of life,” is provided for; see R. Torfs, “State and Church in Belgium,” in State and Church in the European Union, ed. R. Robbers (Baden-Baden: Nomos Verlag, 1996), 30.

America’s Secular State and the Unsecular State of Europe 135 34. Nor was this just a matter of the preamble: until 1972, clause 44 of the Constitution of the Republic of Ireland also recognized, for example, “the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” 35. J. Anderson, Religious Liberty in Transitional Societies: The Politics of Religion (Cambridge: Cambridge University Press, 2003), 95. 36. Madeley, “European Liberal Democracy and the Principle of State Religious Neutrality,” 13. 37. A table showing these shifts diagrammatically can be found in Madeley, “European Liberal Democracy and the Principle of State Religious Neutrality,” 16. A revised and updated version can be found in Madeley, “Unequally Yoked: The Antinomies of Church-State Separation in Europe and the USA,” European Political Science special issue on Church and State (forthcoming 2008). It should be noted that in these tables—with support from other listed data sources—Barrett et al’s categorization of 6 former Soviet bloc states as still de jure Atheist in 2000 has been changed. 38. In the judgment of Paul Avis, “[c]learly in English terms, the Church of Sweden is very far from having been disestablished.” See P. Avis, Church State and Establishment (London: SPCK, 2001), 20. 39. Anderson, Religious Liberty in Transitional Societies. 40. S. Ferrari, “The New Wine and the Old Cask: Tolerance, Religion, and the Law in Contemporary Europe,” in The Law of Religious Identity: Models for Post-Communism, ed. A. Sajo and S. Avineri (The Hague: Kluwer Law International, 1999), 1–15, esp. 2. 41. On these problems, see J. T. Richardson, Regulating Religion: Case Studies from Around the Globe (London: Kluwer Academic/Plenum, 2004). 42. Ferrari, “The New Wine and the Old Cask,” 3. Emphasis added. 43. Rémond, Religion and Society in Modern Europe, 215. 44. Ibid., 217. 45. R. Audi, “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs 18, no. 3 (1989): 259–96. 46. S. Monsma and C. Soper, eds., The Challenge of Pluralism: Church and State in Five Democracies (Oxford: Rowman & Littlefield, 1997). 47. R. Neuhaus, The Naked Public Square: Religion and Democracy in America (Grand Rapids: Eerdmans, 1984). 48. Ferrari, “The New Wine and the Old Cask,”11. 49. Barro and McCleary, “Which Countries Have State Religions?”; and Fox, “World Separation of Religion and State into the Twenty-First Century.” 50. Cole Durham, “Perspectives in Religious Liberty,” in Religious Human Rights in Global Perspective.

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51. In line with the Fox finding, Cole Durham points out that many scholars—McConnell, for example—argue that the United States should now to be regarded as Accommodationist rather than Separationist not least because “[a]s state influence becomes more pervasive and regulatory burdens expand, refusal to exempt or accommodate shades into hostility”; see Cole Durham, “Perspectives in Religious Liberty,” 21. 52. Cole Durham’s term Endorsed Religion (he actually uses the term Endorsed Churches) is preferred to Fox’s Civil Religion because of the latter term’s particular connotations in the work of Bellah and others. 53. V. Bader, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam: Amsterdam University Press, 2007). 54. Thus in 2002, the Ninth Circuit Appeals Court sitting in Sacramento, California, ruled that, “[t]he Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Two years later the case was dismissed by the Supreme Court on a technicality, even though three of the justices, including then Chief Justice William Rehnquist, wanted the court to address the constitutional issue and to rule that the pledge did not violate the establishment clause. Rehnquist’s comment was that “to give the parent of such a child (sic) a sort of ‘heckler’s veto’ over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase ‘under God,’ is an unwarranted extension of the establishment clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.” 55. T. Modood, ed., Church, State, and Religious Minorities (London: Policy Studies Institute, 1997). 56. For more on this see J. Madeley, “Still the Century of Antidisestablishmentarianism?” European Political Science 1 (2006): 395–406.

Chapter 7

Chr i stianity, Violence, a nd Democracy So cio his to r ica l Select i o n f ro m a Bas ic Religio u s R eperto i re

David Martin

My focus is on the extraordinarily complex issue of religion and

democracy and, to some extent, the related and equally complex issue of religion and violence. Both issues are obscured by rival types of propaganda, and to insert a social scientific understanding of what is involved, in the face of assertions by contentious gurus concentrating on surface evidence and selecting what suits their book, is far from easy. I should say that the immediate context of the discussion below is the Jeffersonian concept of the need for a wall separating church from state, and that insofar as I stress the importance of context I assume that the applicability of the concept varies a great deal, as does the likelihood of the good consequences of its application as envisaged by Thomas Jefferson—or, indeed, by Thomas Paine. To put it mildly, the separation of church, or rather religion, from the state in Iraq may be desirable in the abstract, but in practice would cause a lot more trouble than it is worth. Or again, the separation of the church from the state in England might also be more trouble than it is worth, given the evolution of the Church of England from a focus of sociopolitical power to its contemporary role as an umbrella institution for channeling the concerns of all religious communities and for acting as a master of ceremonies. The classic European translation of the separation of church and state is found in the idea of a free church in a free state,

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of which one major realization was the disestablishment of the church in France in 1905. However, the circumstances of French history, notably the effects of religious monopoly in generating conflict and hostility, ensured that the mere creation of a Jeffersonian wall of separation did little to damp down hostilities. The pluralism of the United States of America meant that a separation could encourage each and every faith to be active in the public forum, whereas in France a religious monopoly engendered over time an ideological hostility which sought to privatize religion as well as to create a model of relationships between the state and religious bodies built on previous experience with the Catholic Church.

S o c io lo gic a l Pr i nc i ples There are some broad sociological principles needing to be set out right at the beginning. The first is that if one views a given world religion (and in a sense there are only three) as a group of themes with a strong family likeness, then the cultural realization of those themes will vary enormously according to type of society, type of social context, and historical situation. Indeed, its realization in one context may be the reverse of what it is in another. For example, the authoritative structure of the Roman Catholic Church may well constrain it to collude with conservative authoritarian regimes, such as those of Salazar in Portugal or Franco in Spain, and to that extent work against freedom of conscience and democracy. Yet the same authoritative structure enabled the Catholic Church to stand up against authoritarian regimes in Nazi Germany and Communist Poland, as well as the national security states of Latin America and the Philippines. In those contexts the Catholic Church could help clear a space for democracy, though one might note that even liberation theology assumes Catholic hegemony. The context is also important with regard to the meaning of a particular religious practice. For example, female headdress of various kinds may signify seclusion and subordination in some Islamic contexts, but in the West, particularly when adopted by professional women, it may serve to symbolize not only a resistant identity but an identification with a desexualized role for women in an oversexualized Western society. The second principle is that Christianity will be translated according to the type of society which adopts it, and at least initially in a way consonant with the rationale governing its adoption. With regard to the latter, Christianity in northern, northeastern, and eastern Europe

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was often adopted because Christian potentates were extending their power by absorbing adjacent territories, or because the monarchs of those adjacent territories sought to gain the advantages of association with a major civilized center, as in the case of Vladimir of Kiev after his visit to Constantinople. Kings like Vladimir of Kiev or Clovis are not likely to abandon an heroic style in a hurry simply because they have acquired the gospels as part of the cultural package. It is more likely that Christ will be recast in heroic mold in the way illustrated in the Anglo-Saxon poem The Dream of the Rood. From 995AD onward, Olaf Haraldsson almost literally rammed Christianity down the throat of his people, but by dying at the battle of Stiklestadt in 1030, he was assimilated to the Christian pattern of victory through suffering as St. Olaf. When William I of Normandy overwhelmed King Harald at Hastings in 1066, he built an abbey to Our Lady of Victories by way of thanksgiving, on the Old Testament principle that the Lord is a man of war. The sociological inference is obvious. In heroic or courtly or commercial or capitalist or nationalist societies, the Christian (and antecedent Jewish) repertoire of themes will be raided selectively according to criteria of contemporary relevance. Poland and Serbia will see themselves as martyr nations; Protestant businessmen will adopt the Parable of the Talents as legitimation for canny investment. That is not to say that Christianity is so retuned that it simply reflects its sociohistorical location. It is to say that when, for example, Christian gentleness and loving-kindness become fused with a society based on knighthood you have the ideal figure of the “verray parfit gentil knight,” while in Victorian society you have the ideal of the “Christian gentleman.” What is in essence a panhuman virtue, pertaining to the gens but espoused in the New Testament, acquires a link to status location in a given type of society, and in this case a link to a particular gender. The ideal of gentleness or loving-kindness is not lost but takes on a sociohistorical coloring. The point is best illustrated by quoting Simon Schama on commercial and Calvinist Amsterdam. In The Embarrassment of Riches he writes, As in so many other departments of Dutch culture, opposite impulses were harmoniously reconciled in practice. The incorrigible habits of material self-indulgence, and the spur of risky venture that were ingrained into the Dutch commercial economy themselves prompted all those warning clucks and solemn judgments from the appointed guardians of the old orthodoxy. It was their task to protect the Dutch

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from the consequences of their own economic success, just as it was the job of the people to make sure there was enough of a success in the first place to be protected from. This moral pulling and pushing may have made for inconsistency, but it did not much confuse the artisan, the merchant, or the banker in their daily affairs. The peculiar coexistence of apparently opposite value systems was what they expected of their culture. It gave them room to maneuver between the sacred and profane as wants or culture commanded, without risking a brutal choice between poverty or perdition. And they certainly did not need Calvinism to tell them that riches had better embarrass, but need not lose them salvation. That lesson had been drunk with Dutch capitalism’s mother’s milk, in the earliest accounting between northern trade and the Christian gospel.1

The third principle is that every important religious or ideological position, judged by us as positive or constituting an advance, trails an inevitable cost. Monotheism is judged to be an advance because it seeks the inclusion of a unified humanity under one God. That, however, gives it an aggressive edge, both in relation to other monotheisms with a similar inclusive mission and in its encounter with resistant particularities. The affirmation of the One actually creates the Other, especially since the monotheistic thrust often comes to specify an axis mundi, or key location, such as Mecca, Jerusalem, or Rome, and thus to fuse universal claims with particular empires. That in turn is linked to the way the interim solidarities achieved by “inclusive” particular empires war against wider panhuman solidarities. Again, justice and peace are often embraced as twin virtues, but an emphasis on justice may lead to revolution or to just war at the expense of peace, while the embrace of peace at any price leaves the field to the powers of injustice. Love of neighbors in one context means not using violence toward them, and in another means using violence to defend them. A parallel kind of cost is entailed in the making of qualitative judgments, for example, that slavery and the subordination of women are wrong, since one cannot then “respect” the Other when the Other rejects that judgment. Indiscriminate respect and tolerance are by definition incompatible with moral discrimination or, indeed, a vigorous insistence on truth. Costs are unavoidable: one cannot fully implement all the “goods” all the time. Even the ideology of progress entails relegating “others” to a bygone time zone, while respecting other people’s authentic culture may well entail leaving them there.

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Th e C o s t o f Human S oli dar i ty At this point one encounters a particular type of cost associated with world religions, but equally present in nationalism, whether or not ethnoreligious as in Poland or secular as in France or Baathism or Kemalism. Religious and/or nationalist solidarity entails a cost relevant to both democracy and violence since (ideally) democracy seeks as far as possible to abjure violence in the settlement of internal conflicts and in the assertion of overall solidarity. In practice, all the major forms of solidarity—religious, political, and nationalist—are ambiguous and double-edged. All have fortified the One against the Other. The way in which this cost of solidarity works out is of such major importance for democracy and violence that it has to be treated in some detail. World religions are premised on a concept of panhuman solidarity located in a particular faith; that is, in its drive to universal inclusiveness and in its embrace of what is normally judged a panhuman virtue: truth. One has to say immediately that this is not the revisable truth of science, negotiated in terms of theories and supporting evidence, but a mode of framing permanent truths of existence. Religious truth operates at a discursive level distinct from the level of scientific truth. To see humankind as flawed and in need of redemption, or to respond to the creation as declaring the glory of God, is to make a religious affirmation, not to put forward a scientific proposition. In the matter of scientific discourse we have more or less agreed criteria for negotiating disagreements, but these are far less clear in the matter of religious discourse. How does one negotiate the poetic assertion that “the world is full of the glory of God”? This is true even within religions, let alone between them—for example, as between broad hermeneutic principles selecting key texts as governing the rest, and literal readings for which a text is authoritative and God-given throughout, or as between text, tradition, experience, and reason, or as between individual conscience and ecclesiastical authority. This problem of overarching criteria as a basis for negotiated settlements about truth within or between religions is regularly latched on to by those who claim religion is divisive, potentially violent, and undemocratic. However, the issue is much more complicated. One has perhaps to begin with the role of religion in establishing solidarity; that is, the consensus fidelium, realized on the basis of what is shared. That is, in itself, a fundamental achievement and finds a particular expression in organic societies where authority is vested in religious and political authorities, both allied and conflicting, as in Western Europe, or

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vested in religio-political authorities, as in Byzantium and the caliphate. The moment that is undermined by an appeal to the individual conscience in the interpretation of scripture, and its eventual secular translation in terms of individual judgment as such, unity is in principle beyond recovery. The “wars of religion” over the century or so between Luther and the Treaty of Westphalia in 1648 were in fact fought for a number of politico-religious reasons, and the settlement of 1648 proposed only an interim solution, based on the unity of religion in a given jurisdiction, whether Catholic, Lutheran, Calvinist, or Anglican. Notwithstanding this interim solution, the principle of individual judgment still remained at large, either working within state churches, for example, in the Lutheran Collegia Pietatis or the Inner Mission, or to some extent outside, as in England and North America. During this period of interim stabilization religion functioned as one marker of local identity, with a relatively minor role in struggles between local identities—for example, the struggle between Catholic France and Protestant England (and Holland) in the eighteenth century. That role as a marker has persisted, especially in areas of mixed religion, such as the Balkans and the Caucasus, but conflicts even in these areas have characteristically been about political and ethnic supremacy and control of economic resources. The achievement of consensus in organic society based on a principle of sameness had become a problem in societies increasingly based on a combination of identity and difference and experiencing a secular extension of the religious principle of individual conscience. Alternatively the consensual principle mutated into a secular nationalism endowed with a quasi-religious principle of unity, as in the case of republican France, or else into an ethnoreligious nationalism where religion defined who was and who was not included, as in Poland. Nationalism of whatever kind “secularizes” the consensus fidelium, as well as the idea of chosen-ness, and characteristically expels groups who are perceived as not belonging: ethnic or ethnoreligious cleansing is the historical rule. The essential problem for democracy was to separate the religious sacred centered on the unity of the faithful from the social sacred centered on the unity of the nation. That problem was solved most easily in societies like Holland, Britain, and colonial and postcolonial North America, and least easily in societies where the religious marker functioned to ensure unity against oppression, as in much of eastern Europe. In between were societies like France, Spain, and Italy, where two principles of unity were in conflict: organic secular nationalism

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and organic Catholicism, Cattolici and laici. In Russia the principles alternated: from 1917 on there was an aggressively secular ideology, and from 1989 on there has been an increasing identification with a nationalist Orthodoxy.

Fo u r Stag es in t he C hr i sti an Wes t Each of these trajectories has to be pursued in turn with regard to religion and democracy, but before that is attempted four stages have to be looked at specific to Christianity in the West. The first two of these relate to the space (or the distinction) between God and Caesar, between the kingdoms of “this world” and the kingdom of God. In the first three centuries of its existence Christianity was a quasiuniversal, nonviolent, voluntary society, cherishing the space between God and Caesar. Once established in power, that space narrowed to comprise two mutually supporting and intermittently rivalrous jurisdictions, with the ideal voluntary society implicitly shunted off into monastic sidings. The second two stages involved first an interim stabilization (Anglican, Presbyterian, Calvinist, etc.) in which the national sacred and its consensus remained in close alliance with the religious sacred and its consensus. In the Presbyterian/Calvinist case, the themes selected from the Christian (and Jewish) repertoire were city, saint/citizen, heart/sincerity, exodus, wayfarer, assembly, covenant, and commonwealth. These all contained democratic potential once an interim religio-political unity (for example, in Massachusetts) broke down. At that point their potential was, so to speak, on the loose, and in the North American context the way was open to the kind of universal voluntarism embedded in the First Amendment. The mutation of saint into citizen, of the ecumenism of the heart (and of faith understood as trust) into sincerity, all played a part in breaking down the principle of hierarchy with its emphasis on face and honor as bound up in inherent status.2 So too did the mutation of the principle of an Elect chosen by God, irrespective of status, into the principle of converts electing (that is, choosing) to adopt a faith. The principle of free religious choice, together with its secularized equivalents, tended mutually to support each other so that successive mobilizations further and further down the social scale could take on religious as well as secular form. The Pentecostalism now expanding throughout the developing world is the most recent example of the religious mobilization (without revolution) among lower status groups. In Europe, insofar as the organic principle survived, religious

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and secular mobilizations were more likely to be rivalrous, and negotiated democratic outcomes less likely. The foregoing sketch of a sequence can be put in another way. Platforms are established in religious consciousness, often through ritual disputes, such as those over offering the cup to the laity in Hussite Prague, or the division between a lay nave and a priestly chancel, or conflict over vestments, and these disputes fought in a constricted ritual corridor can become generalized to society at large. The “perspicuity” of Scripture can become the universal right of private judgment. When Luther defied the authority of Pope and Emperor at the Diet of Worms by insisting on the ultimate authority of Scripture, he effectively inaugurated modernity, because the next and obvious step involved private judgment. Concepts like commonwealth and assembly in Christian liberty can be translated more widely in terms of political organization. For example, it is sometimes asserted that Methodist modes of organization transmogrified into English trade union organization; and it seems the Korean constitution was initially based on the Presbyterian notion of covenant. There is a long revolution to be traced here, with its earliest stages rooted in tussles over texts, words, and symbols. However, we now need to revert to those early stages before exploring the nexus of religion and democracy, religion, and violence, in contexts other than the North Atlantic; that is, in Latin Europe and in ethnoreligious Eastern Europe.

Th e Chr isti an Repertoi re a nd I ts B i furc ati on The first stage of Christian formation prior to the Constantinian establishment is fundamental, because it sets in motion a radical mutation of Jewish themes, in particular the universalism already present, for example, in Genesis, Isaiah, and Jonah and the interiority fostered in Jeremiah. As I have argued elsewhere, it makes a huge difference that Christianity spiritualized the concept of nation, as well as the idea of the sacred capital, Jerusalem (and its temple), as the universal body of Christ and as the New Jerusalem above, the “mother of us all.” It also makes a huge difference that Christ was not a leader of fighting men or a “family man,” as Mohammed was. That is consonant with the emergence of a universal voluntary association defined as a kingdom of God set over against the kingdom of Caesar, rather than a territorial tribe and a genealogy of blood based on a new sacred capital in Mecca and proposing world conquest. In facing the imperial representative,

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Pontius Pilate, Christ (once again) rejected violence and declared his kingdom was not of this world. Thus nonviolence was built into a new universal (ecumenical) spiritual union, separate from the state and from its monopoly of violence. The communion of Christians was to be such that they “called no man ‘father’” and rendered “no man evil for evil,” cherished affective bonds based on fraternity not the family, shared goods through the diaconate, and refused to take each other to law to settle disputes. In relation to religious law they were further defined by “faith” and inwardness, rather than by external conformity. In relation to each other they were united across the old boundaries of “bond or free, Jew or Gentile,” in particular by a common language (or tongue) symbolized at Pentecost as reversing the divisions of Babel. Such a community has aspirations toward perfection which go beyond anything likely to be instituted on the plane of ordinary politics. However, with political establishment, the perfectionist strain associated with a voluntary group, and relativizing both family and property, is likely to be pursued in the voluntary context of monasticism, or to live on as a radical iconographic motif juxtaposed to the motifs more appropriate to established power. This bifurcation of motifs and of types of organization means that Christian civilization will be marked by creative tensions between humility and honor, between inwardness or conscience and lawful obedience, between peaceability and justice, between self-giving in love and self-giving in defending one’s neighbor against assault or injustice, between “the world” embraced and “the world” rejected. Given the perfectionist thrust of New Testament Christianity and its emphasis on kairos or crisis, established Christianity has to limit the built-in tensions by reversions to the Hebrew Scriptures (the Old Testament) or by the partial adoption of classical concepts like Stoicism. The Old Testament offers a concept of Solomonic kingship, based on temporal continuity, territory, and temple, consonant with established imperial power, and it restores the centrality of the family running “from generation to generation” and appealing to natural birth rather than second birth in the spirit. Gospel perspectives, emphasizing the temporal proximity of the other kingdom, partly give way to an equable Wisdom appropriate to the everyday and to long-term expectations. Thus at the Cathedral of Monreale in Sicily, the Norman kings were represented iconographically as Solomonic figures whose destiny might be to reconquer the physical territory of Jerusalem. In that way the Christian revolution is forced by social realities into partial reverse.

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We have now covered the revolutionary first two and the second two phases of a “Western” development: the initial repertoire and its partial reversal. We need now to look at particular trajectories, such as those of Latin (or southern) Europe, Protestant northwest Europe, and eastern Europe. The Latin pattern is one of strife between religion and radical liberalism in the enlightened tradition, above all in France in the period of the Third Republic, when severe tensions led to disestablishment in 1905. The French model of the Enlightenment, initially Deist, in the long run generated a tradition of conflict between the secular and the religious, which was exported to Turkey, Latin America, and to some extent the French colonial empire, and taken up by revolutionary elements in the Western intelligentsia. The French Enlightenment differed from all other Enlightenments (German, English, Dutch, Scottish, and American) in regarding religion as a form of organic and authoritarian unity opposed to democracy and needing to be subdued or even replaced by an organic unity founded on the secular nationalism of a lay republic. The strife over a secular rather than a religious definition of nationalism in Spain and Italy had rather different outcomes. Two rival and undemocratic traditions, secular and religious, clashed in the Spanish Civil War, as well as in the Mexican and Russian civil wars, pushing the Catholic Church into collusion with conservative authoritarian regimes. This collusion took various forms. In Belgium, for example, the introduction of mass democracy after the First World War deprived the Catholic Church of what had previously been an easy dominance. The initial response was widespread disillusion with liberal democracy, including some interest in the approach of Charles Maurras on the Right of French politics. In the event Catholic intellectual opinion turned more toward the approach of Catholic Action and Jacques Maritain, though this was still rather too aggressive for a cautious Catholic hierarchy more concerned to protect its own Catholic ghetto. It is now all too easy to forget how widespread was the disillusion with liberal democracy on all sides at this time, and how numerous the moves to create an alternative to it, maybe along corporatist lines. So far as radical young Catholics were concerned—and here we see some relevance to the Jeffersonian theme—it was important for the Church to remain separate from the temporal power, while at the same time promoting a society suffused with Catholic principles along the lines of papal encyclicals. This society would recognize the important role of discipline and authority while seeking to improve the conditions of the workers and to create a new kind of democracy

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based on corporations and decentralized communities rather than the aggressive individualism of capitalism or the aggressive pagan statism of the fascists. A key word for this approach was esprit, and a key point of reference the idea of Christ the King. Nor was this at all confined to the Francophone intelligentsia of Belgium, but was widely influential elsewhere until the sombre realities of fascism brought about its demise. The outcome of the Second World War enabled the Catholic Church to embrace Christian Democracy as its Center-Right route to democracy and as the only viable alternative to totalitarian communism established in Eastern Europe and its proxies in the communist parties of the West. In the wake of Vatican II, the Catholic Church partially repudiated the kind of Catholic intégrisme adopted in the mid-nineteenth century in reaction to secular liberalism and saw itself more as a major player in the democratic politics of Western Europe. As the communist threat was seen off, so Catholic voting declined and, deprived of a revolutionary threat, Democrazia Cristiana in Italy went into crisis. Two other patterns of relationship between religion, violence, and democracy (and, one should add, secularization) are worth canvasing: that of the outer Protestant rim of Scandinavia, Holland, and Britain, marked by steady democratization without religion as such being at the heart of contention; and that of Central and Eastern Europe where the Enlightenment was itself absolutist and religion associated with nation-building, though with some exceptions, notably in what is now the liberal Czech Republic. In Britain (including Canada, Australia, and New Zealand) as well as in Scandinavia and Holland, the Protestant religion has generally helped make the path to democracy easy. Indeed, a faith which emphasizes personal conscience rather than ecclesiastical authority has some affinities with democracy, and the proportion of Protestant countries with a record of stable and early democracy is uniquely high. Insofar as there are Catholic minorities (and this includes the USA), they have traditionally been outside the elite sectors and unlikely to espouse an organicist conservatism, though something like that was tried in the postindependence Irish Republic from 1922 until its collapse in the 1980s with the emergence of the “Celtic Tiger” economy. Insofar as most Protestant countries developed steadily over a long period without major pileups of difficult problems and did not suffer the trauma of military defeat, the path to democracy was relatively smooth, though Norway had a brush with the extreme Left in the 1920s, and Sweden with the Right in the thirties. Insofar as there was

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a religious pluralism among Protestant groups (examples here might be the relationship between the pietism of the Bergen hinterland and the old Left, or between English nonconformity and the Liberal and Labour parties), their political allegiances were spread across the parties without the emergence of a specific politico-religious bloc. Moreover, the conservatism of the state churches was moderate in tone, and there were many Anglicans and Lutherans with concerns for welfare provision. The clergy of the Protestant state churches were in any case not a separate echelon but integrated into the universities and middle classes. The specifically religious parties of Scandinavia have been small and mainly represent the values of people on the periphery anxious about the moral styles espoused at the center. In this respect Holland was distinctive since, like Germany, it had a large regional, and to some extent Catholic, population, with specific political representation in pursuit of equality in a country where the key elites were mostly Protestant. The disaster which overtook German democracy from 1933–45 is too complex, and in my view too specific, for discussion here, but it does not undermine the overall relationship between Protestantism and democracy. What the German case does raise is the issue of the relation between Protestantism and nationalism, which has been generally positive, partly because Protestant reading of the Old Testament produced identifications with the history of Israel, above all in the United States, but also in Ulster and England. On the one hand, a moderate Enlightenment encouraged identifications with Rome and Athens at the elite level, while readings of the Bible among the people at large encouraged identification with Israel and even a somewhat ambivalent philo-Semitism. The Jewish populations of the Anglo-Saxon world simply amplified religious pluralism and often inclined to the Center-Left, at least till recently. One might add that Protestant minorities in Czech Lands and in Hungary were differentially associated with democratic liberal nationalism. The situation in Eastern Europe was in many ways the reverse of the situation in the Protestant North Atlantic countries. Many of the countries concerned were part of the Austro-Hungarian Empire, the Prussian Empire, or the Russian Empire, all of them with histories of enlightened absolutism. That reminds us that historically enlightenment and absolutism have often gone together, and illustrates the sociological principle put forward earlier to the effect that the destination of a given idea (religious or secular) depends as much on context and type of society as on its intrinsic character. Those countries not under the rule of the “Christian” empires were under the rule of the Ottoman Empire, which was not conspicuously enlightened.

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Throughout much of Eastern (and Central) Europe the emergence of movements for national self-determination brought into being an ethnoreligiosity, with a strong xenophobic as well as—except in Bulgaria—an anti-Semitic component, and ideological attachment to ideas of suffering, as in Poland, or suffering martyrdom, as in Serbia. For that matter imperial Russia also nourished messianic tendencies in association with nationalism, and these have resurfaced strongly since the demise of communism, so much so that the church and the army now emerge together as the two “most trusted” institutions in contemporary Russia. The attempted revolutions of 1848 were liberal, nationalist, and democratic, but the record of newly independent countries, particularly between the two world wars, includes marked tendencies to a conservative authoritarianism, even fascism, with some association between religion and agrarian or peasant parties. Whether regimes were conservative authoritarian or, indeed, communist authoritarian, the Orthodox Church retained its Byzantine inheritance of symphonia between church and state. In Romania, for example, collaboration was strikingly close, both under monarchical and communist authoritarian governments. Monarchs and communists alike dealt harshly with dissidents. Yet the association of religion with nationalism in the circumstances of communist decline, economic failure, and moral bankruptcy meant that nationalist, religious, and democratic forces emerged in liaison in the final years of the twentieth century and the opening ones of the twenty-first, not only in Eastern Europe but in the western Ukraine and Georgia. Indeed, the revolutions beginning in 1989 and continuing up to the Orange Revolution in the Ukraine in 2005 probably had stronger religious aspects than was the case with the liberal nationalist revolutions of the nineteenth century. Religion provided much of the symbolism of revolution, above all in Poland, though it could not provide a coherent policy, and attempts to reinstate religious moral positions in terms of state law mostly failed, though in Poland at least the church had some degree of success. The clearest identification of a church with democracy as such was in East Germany (the former DDR). Though the communist government had been uniquely successful in reducing identification with Lutheranism to a minority, it was the Lutheran Church that provided the main havens and venues for dissidence. There was, however, little increase in the everyday influence of the church or in the levels of belief and attendance post-1989. As in the rest of Eastern Europe, there was a moment when the church provided the one continuing institutional presence

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able to carry the search for a new autonomous identity. One might add that in Eastern Europe as a whole, including Russia, the sense of religious community in association with the affirmation of national identity is not necessarily pro-Western or procapitalist. Indeed, there is considerable suspicion about Western materialism, consumerism, and rampant individualism, as well as a dislike of religious pluralism as likely to undermine ethnoreligious unity. Greece, for example, nourishes a religiously toned nationalism suspicious of the European Union agenda and of migrants and multiculturalism, in part because of a perceived threat from its traditional enemy, Turkey. According to Richard Pipes, Russia under Putin has reverted to a classic combination of autocracy, Orthodoxy, and messianism (assisted by gas and oil) after the kleptocratic free-for-all under Yeltsin. In Russia the distinction between state and society remains weak. The rule of law is less important than stability.3

An Overv i ew An overview of this variegated scene suggests that Protestantism has provided uniquely easy passage for democracy, in spite of a partial association of state churches with elite strata and a conservatism of throne and altar, for instance, in Scandinavia and Germany. The Jeffersonian wall of separation is most of all viable in Protestant contexts, above all where pluralistic conditions make its passage easy and popular, and its consequences beneficent for religion itself and its accepted participation in the public square. Where there are modest establishments of religion, as in Anglo-Scandinavia, a wall of separation is less obviously required, while in Catholic countries its separation by no means brings conflict to an end. When one turns to the Orthodox world things are different yet again. The traditional Byzantine symphonia of church and state has produced an identification of church with nation, not with democracy, and certainly not with pluralism. Yet the circumstances of communist dominance and then of its collapse made possible some links between religion, national independence, and democratization. The Catholic Church, being a body extended through many cultures, entertains various tendencies depending on its location and interests. The fortress mentality of nineteenth-century Catholicism, with its authoritarian, intégriste, and antiliberal stances, was breached by Vatican II, but there is still a sense, represented by the present Pope Benedict XVI, that the Church is the natural educator of nations, as well as sole long-term guardian of Europe’s historical and cultural

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identity.4 Moreover, the Church faces an increasingly aggressive secularist agenda, insisting that dialogue be conducted solely on its own terms. In other words, we have an illiberal version of liberalism which seems to have adopted the old Catholic view that error has no rights, and disavows those cultural continuities of the European identity in which Christianity is profoundly implicated. The dominant liberalism has also been forced to question its own commitment to pluralism and multiculturalism in view of the increasing Islamic presence, demographically and politically. That is an anxiety it shares with the Vatican, though some of the attitudes of the Catholic Church, for instance, in relation to sexual morality and the public display of religious symbols, give it a community of interest with Islam. There is another sense in which Christianity and Islam are allied, and that is with respect to their shared emphasis on the communal rather than the individual. Both originated in communal societies, and in any case their understanding of “the religious” is inherently solidary and communal. That stress on the solidary and communal, especially in Catholicism and Islam rather than in Protestantism, is in tension within the negotiated compromises inherent in multicultural societies, defined by a combination of accepted difference with an overarching shared civility. Islamic minorities press for inclusion under the rubric of multiculturalism and civil society, while at the same time remaining linked to societies more inclined to the unity of religious and national identity and the close alliance of religious and secular law. If the Catholic Church has largely abandoned that integral vision Islam has not, thus creating a dilemma as to how far liberal tolerance can extend to minorities increasingly segregated in cultural ghettos at a considerable distance from the values of civil society. How Islamic minorities, and indeed Islamic majorities, select from their own repertoire, without an intervening enlightenment or a reformation other than movements like Wahhabism, remains an undecided question. As in the Catholic case, it seems to depend on where Muslims are, so that in the United States they mostly assimilate to the pluralistic ideal, whereas in Europe they are divided, and in Pakistan, say, they are menacingly hostile to minorities.

Notes 1. Simon Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age (London: Fontana/HarperCollins, 1991), 371.

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2. Adam Seligman, Robert Weller, Michael Puett, and Bennett Simon, Ritual and Its Consequences: An Essay on the Limits of Sincerity (New York/Oxford: Oxford University Press, 2008). 3. Richard Pipes, Russian Conservatism and Its Critics: A Study in Political Culture (New Haven, CT: Yale University Press, 2006). 4. On the major change achieved by Vatican II, at the instance of bishops in the Anglosphere and Northern Europe in alliance with Latin American bishops, at the expense of the “southern Latin Europeans,” see Melissa J. Wilde, Vatican II: A Sociological Analysis of Religious Change (Princeton, NJ: Princeton University Press, 2007).

Pa rt I I I

Middle-Easter n Perspectives

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Chapter 8

Reli gi on and Politics in the Mi ddle East and North Afr ica William B. Quandt

W

hen Thomas Jefferson wrote his famous letter on “building a wall of separation between church and state” on January 1, 1802, he specifically noted that the legislature “should make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In a passage included in his first draft, but marked for deletion, he made it clear that he was opposed to the idea of a national church of which the president would be the head. This foundational belief that religion and politics should not be too closely mixed remains strong in twenty-first-century America, even though in practice we may observe some gaps in the “wall of separation.” But with this view that the state should be both secular and neutral in matters of religion, Americans are prone to look at a region like the Middle East/North Africa (MENA) and conclude that it is precisely the lack of secularism and separation that accounts for the paucity of democracies and the prevalence of religiously tinged politics. The problem with this view is that it is misleading at best and quite wrong in many cases. The idea that religion trumps politics in the Middle East is, in fact, almost the opposite of the historical record, where states have generally dominated and determined how religion should be observed. With the weakening of states, opposition movements have arisen in recent years that draw heavily on religious

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symbols, but it would be a mistake to see these movements as primarily or solely religious expressions. They are largely about politics and power, and if those now in opposition succeed in coming to power they will almost certainly behave as other leaders have in the past— they will view it as the prerogative of the state to decide how religion should be taught and practiced, not the domain of religious scholars and pious Muslims. In short, in the Middle East and North Africa there is no wall of separation between religion and politics, but it is usually politics, and politicians, that have the upper hand. To explain this relationship further requires an examination of a variety of cases, since the MENA region offers a rich array of different models, from the formal secularism of Ataturk’s Turkey to the Islamic Republic of Iran. Here we will look at the relatively secular nationalist movements; the religiously anchored monarchies; radical Islamic movements and regimes; and the growing tendency for nationalism and religion to be fused in a new formula for state legitimacy. Despite the significant differences in how each of these modal types functions, we will see that political power is almost always in the hands of individuals who are primarily political, not religious, in their orientation. Religion thus becomes the handmaiden of politics, not the other way around.

Th e S ec ul ar M odels : Th e State Tr ies to C ontrol Reli g i on Only one country in the MENA region has formally adopted secularism as part of its founding political values—Turkey under Kemal Ataturk’s leadership in the 1920s. But it would be a mistake to think that secularism in Turkey has meant that there is a separation of mosque and state. The Republic of Turkey is, of course, overwhelmingly Muslim in terms of the faith of its citizens, and during its early years religion, more than language, became the marker of which individuals ended up moving to Turkey and which to Greece in the border areas of what had once been the multicultural Ottoman Empire. Turkish-speaking Christians went to Greece and Greek-speaking Muslims ended up in Turkey. So what was secular about Ataturk’s Turkey? First, there was the formal abolition of the sultanate and caliphate, emblematic institutions of the Ottoman Empire, and their replacement by a republic anchored in the concept of popular sovereignty. Second, Ataturk adopted the Swiss legal code as the basis for Turkish laws, not the Islamic sharia. Third, he attacked a number of religious symbols, including the call

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to prayer in Arabic and Muslim headgear (fez) for men, and he tried to discourage woman from wearing the veil, although he never outlawed it as Reza Shah did in neighboring Iran.1 Education became the centerpiece in Ataturk’s attempt to create a new Turkish citizenry. He personally pushed through language reform that abolished the use of Arabic script and introduced modern Turkish written in Roman letters. All of the 454 theological seminaries that had been run by the Sharia and Pious Foundations Ministry were taken over by the Ministry of Education, and by 1938, the year of Ataturk’s death, neither urban nor rural schools offered religious instruction.2 According to a textbook from the 1930s, “Before the Turks accepted the religion of the Arabs, they were a big nation. The [Islamic] religion . . . slackened the Turkish nation’s national bonds, numbed their national feelings and enthusiasm, since the aim of the religion, which Muhammad had founded, was the political domination of the Arab nation over all others.”3 Ataturk did not try to disestablish Islam as the religion of the Turks as much as he tried to Turkify and control it. By the 1940s, there was already a conservative backlash, and one of the issues that led to the emergence of the Democratic Party after World War II was a desire by the new party to cater to the conservative social values of the rural voters, who became the key to its electoral success in 1950. Even the Republican People’s Party (Kemalists) found themselves on the defensive and reintroduced religious classes in public schools in 1949.4 By the 1980s, an overtly Islamist party, the National Salvation Party (NSP), was participating in political life and the military authorities were desperately trying to control the content of religious education by opening more so-called Imam-Hatip schools to train religious leaders. The 1982 Constitution (article 24), stated that “education and instruction in religion and ethics shall be conducted under State supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools.”5 Rather than constructing a “wall of separation” between religion and the state, the state was removing the remnants of the barrier that Ataturk had tried to put in place. Islam was no longer viewed as somehow alien to Turks, but rather a religion that fit the Turkish national character remarkably well; according to a middle-school textbook, “In entering Islam, the Turks chose the religion most appropriate for them.”6 But it was still the state that had the upper hand. By the late 1990s, Islamist politics in Turkey—albeit of a relatively mild variety—was in the ascendance. The NSP leader Necmettin Erbakan briefly became prime minister. The military soon staged a

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“postmodern” coup by fax that resulted in his downfall and being banned from political life in 1997. But it was not long before a younger generation of Islamist leaders, most notably Recep Tayyip Erdog˘ an, formed a new party, Justice and Development (AKP), that went on to win an overwhelming victory at the polls in 2002 and again in 2007. Old-guard Kemalists were suspicious of the AKP, but Erdog˘ an managed to stay within the bounds of the relatively secular norms set by the state’s founder. Ataturk’s picture is still on the walls of government buildings, memorial services are still held at his tomb, and head scarves are still not to be worn inside the Parliament building, even by the prime minister’s wife. One can only imagine what Ataturk would make of present-day Turkey, but I suspect that he would still recognize the fact that the state still dominates the contest between religious and secularizing forces. Let us take a brief look at other cases in the Middle East where the initial stages of nationalist expression had strong secular overtones. The most obvious cases are Gamal Abdel Nasser’s—Egypt in the 1950s; Habib Bourguiba’s Tunisia; the Algerian Front de Libération Nationale (FLN); and the early years of the Palestine Liberation Organization (PLO). In each of these cases, the dominant legitimizing narrative was nationalist, not religious. The struggle was against colonialism and its legacies, not against Christians or Jews, at least as spelled out by the mainstream nationalist leaders. The religiosity—or lack thereof—of the leaders of these movements was not a major issue in the politics of the 1950s and 1960s. This, after all, was a period when a kind of Left-leaning populism was at the core of nationalism. Few people were overtly antireligious, but religion was subsumed into the broader national narrative. A few examples will help remind us of what may seem like a bygone era. In 1954, just as Nasser had assumed the office of the president, a member of the Muslim Brethren allegedly tried to assassinate him. This event led to the banning of this powerful religiopolitical movement from political life, a ban that remains formally in effect to this day. Later, Nasser passed through a semisocialist phase during which he nationalized industries and intensified his commitment to land reform. The Egyptian Left was a substantial force and the alignment with the Soviet Union from the mid-1950s onward probably opened the way for socialist and Marxist ideas to be openly expressed. The 1967 war with Israel, however, was a huge setback for Nasser and his brand of Arab nationalism. In the ideological vacuum that followed, Islamist currents were not only tolerated by Nasser’s successor, Anwar

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Sadat, but they were also initially encouraged as a way of weakening those loyal to the previous regime.7 Of all the leaders of the Arab world, Tunisian President Habib Bourguiba came closest to emulating Ataturk. He believed in a strong, authoritarian state, but one with institutions and a commitment to socioeconomic development. Heavily influenced by the very same French against whom he had rebelled, Bourguiba introduced progressive legislation on behalf of woman and even went so far as to defy religious tradition by breaking the Ramadan fast in public during daylight hours. As in Turkey, there was a backlash against his form of modernization, especially after Bourguiba had passed from the scene, and it fell to his successor to crush the assertive Islamist movement (An-Nahda) with a firm hand. Tunisia remains a relatively secularized, modernizing state with a very skeptical attitude toward Islamism. As in Turkey and Egypt, the state remains very much in charge of the dialogue between religion and state.8 The Algerians came a bit late to nationalism, but their experience with colonialism was unparalleled in its intensity in the Middle East/ North Africa region. In Algeria, what came to be the FLN in 1954 was a confluence of liberal nationalist, radical nationalist, and even some Islamist currents. Islam was simply part of the Algerian identity—it defined the people and set them apart from their non-Muslim rulers. But the FLN also attracted support from European intellectuals, non-Muslims like Frantz Fanon, Marxists, Arab nationalists, and even some Algerian Jews who were opposed in principle to colonialism.9 During my own research on Algerian nationalism in the 1960s, I tried to find and interview nationalists whose education and upbringing had largely been in Arabic and with Islamist overtones. They were few and far between. More impressive and representative was Algeria’s first president of the Provisional Government, Ferhat Abbas, who spoke with pride of being the best student in his French class in the 1920s. His successor, Ahmed Ben Bella, at the moment of independence, famously said, in French, “nous sommes Arabes, Arabes, Arabes.” Later he adopted more of an Islamist tone after spending many years in prison, but in 1962 nationalism, not religion, was the dominant theme. And so it remained during the heyday of the FLN’s hegemony through the 1980s. Algeria’s relative secularism did not mean that Islamic social codes could be ignored. In fact, the quasi-socialist era of Houari Boumediene produced a very conservative family code, presumably as a way of appeasing Islamist critics.10 And when the FLN was finally challenged by massive street protests in 1988, it was quickly apparent that Islam

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would be the legitimizing discourse of those who wanted to bring down the FLN-dominated order. (Some nonetheless saw in the new Islamist movement, the Front Islamique du Salut, or FIS, a movement that resembled the old FLN in its populism, nationalism, and radical orientation—“Le FIS est le fils du FLN.”) In the bloody contest that then pitted the old-order against the Islamists during the 1990s, it was the military—the most secular of state institutions—that gained the upper hand. As calm returned to Algeria by the end of the decade, the Islamists were offered amnesty and the state tried hard to bridge the gap between nationalists and those who had been attracted to political Islam. As elsewhere, this meant that the state borrowed part of the Islamist agenda. But it was, again, very much the state that set the terms of the bargain, not the Islamists.11 Finally, let me conclude with a few words about the Palestine Liberation Organization (PLO) and Yasir Arafat. Arafat was clearly influenced by his time in Egypt and by the role of Nasser, but he also saw in the Algerian FLN a model of sorts. Like Nasser, Arafat had flirted with the Muslim Brethren early in his career, but he came into his prime as a nationalist. Many of the leaders and factions that eventually evolved around him were Left-leaning, in some cases led by Palestinian Christians (George Habash and the Popular Front for the Liberation of Palestine, or PFLP), and nationalism was the umbrella under which all could be gathered. In its early days, the PLO specifically called for a “secular democratic state” in all of Palestine.12 Over time, the word “secular” was dropped, but there were many in the ranks of the PLO who fit the label. While the PLO always consisted of an array of political tendencies, it is striking that none of them self-identified as Islamist. It was, instead, outside the framework of the PLO, and with more than a hint of initial support from Israeli authorities who sought to undermine the PLO, that an Islamist movement began to emerge in the 1980s, especially in Gaza.13 Hamas, the largest of these movements, had roots in the Muslim Brethren and initially refused to participate in electoral politics or to join the ranks of the nationalists. Arafat won his election as president of the Palestinian Authority in 1996, as did Mahmoud Abbas in 2005, with no contestation from Islamists, who boycotted the election. But in 2006, Hamas decided to run candidates in the election for the Legislative Council and scored an unexpected victory. As elsewhere in the region, the decay of the old-guard nationalist movements opened the way for Islamists. But the state apparatus remained largely in the hands of those who reflected the world of politics and raison d’état, not those who were particularly pious and known for their religious learning.

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To conclude this section, we can see that early experiments with nationalism made little effort to evoke religion as an explicit part of the political agenda. If anything, the early nationalists looked at religious leaders as conservative forces that might oppose change, or in some cases reactionaries who could be manipulated by foreign forces. (Algerian nationalists, for example, saw the Sufi brotherhoods as politically suspect and potentially sympathetic to the French colonizers.) During the one-party era in Turkey, Egypt, Tunisia, and Algeria, the state was clearly the dominant force and Islam was relegated to a secondary role. The state tried to take charge of the mosque, trained and appointed prayer leaders, and regularly brought in religious figures to express support for government actions. There was no separation between state and religion, but rather the state took charge of religion to ensure that it would not spawn opposition movements. As nationalism waned as the dominant discourse and legitimizing motif, grassroots Islamist movements emerged in each of these cases and could only be managed with considerable difficulty and the use of force. In Turkey and Palestine, Islamists eventually managed to come to positions of power, but the non-Islamist forces in society remained strong enough to prevent a total victory for those who used religion to advance their political agendas.

Mo narc hies : The K i ng E mbo dies Rel igi ous L egi ti macy The MENA region is home to more monarchs who exercise real power than anywhere else in the world. This is not to say that monarchies have always done well in the region in terms of survival. Coups or revolution removed monarchs in Egypt (1952), Iraq (1958), Libya (1969), Iran (1979), and there was even a time when many assumed that monarchies would inevitably be swept away by the forces of modernization and secularism.14 But ruling monarchs are alive and well in Saudi Arabia, Jordan, and Morocco, along with a number of small Gulf sheikhdoms.15 The “big three” have in common a particularly close link between the monarch and religion. But, as in the case of the secular republics described above, real power tends to be lodged in the hands of political figures, not religious leaders. The Saudi case is of special interest, since the Saud family itself has no particular claim to religious credentials. But in the eighteenth century, it allied itself with a then-reformist and militant Islamist movement led by Muhammad Abd al-Wahhab. This alliance brought together Saud tribal prowess and Wahhabi zeal. By the early twentieth

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century, under the leadership of Abd al Aziz ibn Abd al-Rahman Al Saud, this tribal-religious alliance set out to conquer much of the Arabian Peninsula. The Kingdom of Saudi Arabia was established in 1932. In the early phase of expanding Saudi influence, Abd al Aziz relied on religious zealots to help spread the faith and Saudi rule. But once the Kingdom had reached its current territorial dimensions, Abd al Aziz prudently concluded that the crusading zeal of his warriors would risk provoking clashes with the powerful British in Iraq, Jordan, and along the coast of the Persian Gulf. He thus sought to settle the fighters for the faith, and, when some resisted, he used force against them. The state had used religion to expand its domain and to enhance its legitimacy, but raison d’etat now dictated that the religious zealots be brought to heel. Saudi Arabia continues to present itself as the most Islamic of states—from dress codes and social customs to laws—and the King is commonly referred to as the Custodian of the Two Holy Places (Mecca and Medina). Nonetheless, in recent times challenges to the regime have come from those claiming that the Saud family is corrupt, that it is insufficiently religious, and that its alliance with the United States reveals its true non-Islamic orientation. In 1979, Islamic zealots seized the grand mosque in Mecca, and it was with considerable difficulty (and some help from the French) that the Saudis finally put down this insurrection. Years later, in the 1990s, it was another Islamic militant, Osama bin Laden, who challenged the Saud hegemony and criticized the alliance with the United States. He, too, was dealt with harshly by the regime, and his followers in the Kingdom have been met with brutal uses of force. Jordan and Morocco differ from Saudi Arabia in the way religion is used to legitimatize monarchical rule. Both the Hashemites in Jordan and Sharifians in Morocco claim descent from the Prophet Muhammad. In moments of political crisis—during a coup attempt in Morocco in 1971 and when King Hussein severed links to the West Bank in 1989—the monarchs have been quick to remind their subjects of their descent from the Prophet and, in Morocco, the monarch’s role as Commander of the Faithful. This has not prevented challenges from arising in both countries from the Islamist tendency. In fact, in both countries the Islamists are positioned to do well in elections if the political system is genuinely liberalized. Once again, one can see an uneasy relationship between state and religion, but for now there is no doubt that the state has managed to keep the upper hand.

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Th e I s l amic Repub li c of Ir an: I s l a m Def ines the Reg i me If there is an exception to this theme—the ability of the state to exert control over religion in the MENA region—it would seem to be Iran. There, after all, a powerful modernizing, relatively secular monarch, Muhammad Reza Pahlavi, was overthrown in 1979 by a mass movement led by a religious figure, Ayatollah Ruhollah Khomeini. And to this day, supreme power in the country is held in the hands of a cleric, Khomeini’s successor, Ayatollah Ali Khamenei, backed by shadowy Islamic institutions of control such as the Guardians Council and the Assembly of Experts. Today’s Iran is often labeled—misleadingly, in my opinion—a theocracy. There is no point trying to deny that Islam played a remarkable role in bringing down the shah’s regime.16 But there was much more to the revolution than an upsurge of religiosity. The shah had isolated himself; he was ill; the economy had cooled off after a period of rapid growth; the workers in the oil fields went on strike; the inner circle around the shah was corrupt and eager to get to their Swiss bank accounts when the shah faltered in late 1978; and mixed signals from the United States may have added to the uncertainty. But there was also the fact that Khomeini was a remarkably skilled politician. He had been in exile since the early 1960s and had forged links with many in the Iranian opposition, including those on the Left. His own politicization during the 1970s, culminating in the publication of his book on Islamic Governance and his denunciation of monarchy and call for rule by Islamic jurists, involved a cross-class appeal to Iranians of many backgrounds, from the “downtrodden” to bazaar merchants, from students to workers, from nationalists to communists to pious clerics. Much more was at work in bringing down the shah’s regime than religion alone.17 Even in the case of the Islamic revolution, where religion seems to have gotten the upper hand, there are a number of qualifications that have to be made. The Islamic Republic of Iran adopted two parallel sets of political institutions. The authority of the clerics was confirmed by the fact that the supreme leader would be a senior religious figure, chosen by the so-called Assembly of Experts, an elected body reflecting clerical preferences. There would also be a religiously dominated Council of Guardians to ensure that legislation conformed to Islamic law and that candidates for election (including to the Assembly of Experts) were good Muslims. At the same time, there was an elected parliament, the vote for all citizens (men and

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women), an elected president, a modern-style bureaucracy, and even a renamed secret service that looked remarkably like the hated Savak of the shah’s time. During the ten years of Khomeini’s rule, one can see the high tide of religious influence over the affairs of state. Early on in the revolution, those who were more secular and nationalist, as well as the Iranian Left, were marginalized and eliminated, even those who had fought the shah’s regime. Clerics gained control over key institutions, courts of law, the media, and economic foundations. This did not, however, mean that the most eminent jurists in the country were automatically elevated to positions of power. In fact, many of Khomeini’s fellow Ayatollahs disagreed with his views on the Rule of the Jurist (velayat i-faqih) and, as a result, they were banished to obscurity, despite their highly regarded religious credentials. In addition, Khomeini himself showed a pragmatic streak as he addressed the issue of who should succeed him. It was important, he said, that whoever held the top positions of power should know about the world, about society, about the economy. These credential, he implied, were as important as knowledge of religious texts. When he finally indicated his preference for his successor, he turned to the first president of the country, Ali Khamenei, a man of modest religious credentials. To deal with this apparent anomaly, Khamenei was given the title of ayatollah. In short, it was Khamenei’s political status that brought him the elevated title of Ayatollah Ali Khamenei, not the other way around. And his successor as president, Hashemi Rafsanjani, was a merchant, not a religious scholar of distinction. In fact, none of Iran’s four presidents since 1979 has been an eminent jurist. What can the Iran case tell us about the relationship between religion and politics? First, it confirms the obvious fact that religion and state are closely linked in the Middle East, but in the Iran case the clergy has acquired an unparalleled degree of power. Nowhere else in the region are clerics so obviously in charge of the state apparatus. But even here, it is worth noting the presence of non-Islamist institutions such as parliament and elections. And public opinion, if one can judge from the elections of 1997 and 2001, which brought Mohammed Khatami to the presidency, indicated a strong backlash against the candidates most strongly supported by the regime. Even the surprise election of Mahmoud Ahmadinejad in 2005 can be interpreted as a vote against the perceived corruption of the Islamic regime as personified by Rafsanjani, who was widely viewed as the regime’s preferred candidate. Ahmadinejad, by contrast, was from a modest background, lived in a poor part of town, had received an engineering degree, not

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a clerical education, and spoke the language of nationalism and populism, tinged with a good dose of Islamic millenarianism. But by late 2006, he was also encountering growing criticism, and the municipal and Assembly of Experts elections in late 2006 were widely interpreted as a shift of support back toward moderates and reformists. The relatively strong role of Islam in the working of the Iranian state today may also tell us something about Shi‘a Islam as compared to Sunni Islam. Shi‘ism is much more hierarchical than Sunnism; it has historically been more autonomous from the state, even to the point of having its own means of financial support. This has given Shi‘ism a degree of credibility as an alternative to the state that Sunni clerics, often viewed as handmaidens of state power, have lacked. Even so, one should be careful not to exaggerate the differences in the two tendencies within the Islamic world. There are many Shi‘a clerics who reject the idea of rule by the clerics and worry that the Iranian experience is discrediting Islam itself. Iraq’s most eminent Ayatollah Ali Sistani is hesitant to join the political fray and has openly disavowed the concept of velayat i-faqih. Even some outspoken Iranians, including former president Khatami, have raised questions about the Rule of the Jurist institution. The Iranian case does represent the high-water mark of religion in politics, but it is not at all certain that the clergy will always maintain the tight grip that it seems to have today.

Isl amist Political Movements in the Arab Wo r l d—Th e Musl im Brethren, H amas, and Hezboll ah: Isl am as the Road to Power If Ataturk’s Turkey and Khomeini’s Iran represent the two extremes of how the state and religion interact in the Middle East/North Africa, it is apparent that the relatively recent rise of Islamist political movements in Lebanon, Palestine, and Egypt are closer to the Iran model than Turkey. Their overt ideology either calls for an Islamic state or at least a strong role for Islam in public life. But their origins are sufficiently distinctive to warrant brief comment. Egypt’s Muslim Brethren (MB) was founded in the late 1920s. It was militantly anticolonial, and at one time spawned a radical “secret apparatus” that engaged in terror to advance its goals. After Nasser’s crackdown on the Muslim Brethren in the 1950s, the movement existed on the margins of the political arena and largely disavowed violence. In contrast to the radicals who argued for seizing state power in order to Islamicize society from the top down, the Brethren spoke of spreading Islamic values gradually through community

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work, education, setting up of health clinics, providing disaster relief, and so forth. This had the advantage of building a grassroots constituency as well as avoiding the state’s wrath.18 Periodically, as in the last year of Sadat’s rule, large numbers of Islamic activists were arrested. But the movement survived and at times the regime in power seemed willing to use it to offset the power of more secular opponents. When President Hosni Mubarak was finally persuaded to loosen up some of the restrictions on political life in 2005, the Brethren decided to run independent candidates for Parliament and managed to do quite well. It was not that public opinion was necessarily so heavily on their side, but rather that they chose local candidates carefully, limited their number, and were skilled at mobilizing their voters in the constituencies where they had candidates. As a result, sometimes a Brethren candidate would win with only 10,000 votes while non-Islamists would split a much larger total, leaving their top candidate in second place. Politics is, after all, about organization, and the Brethren were better organized than the government party, the National Democratic Party. It no doubt also helped that the Brethren ran on an anticorruption party and their candidates were allowed to include the slogan “Islam in the Solution” on their campaign posters. Even with this victory, however, they only have eightyeight seats out of 454 in Parliament. The Palestinian Hamas movement is in many ways similar to Egypt’s MB. It came to public attention during the first Palestinian uprising in the late 1980s and was able to show its popular appeal, in Gaza in particular, by calling for strikes and boycotts. It did not choose to participate in the first two presidential elections, however, and public opinion polls during the 1980–90s regularly showed it as only winning 15 percent to 20 percent popular support. After Palestinian leader Yasir Arafat’s death in late 2004, and the collapse of any form of peace process with Israel, there was a definite hardening of Palestinian opinion. Support for Hamas rose to near parity with the mainstream nationalist Fatah movement. In this context, Hamas decided to field candidates for parliamentary elections in 2006. The electoral system was a mixture of proportional representation (PR) and “first past the post” in geographical constituencies. In the PR half of the election, Fatah and Hamas more or less divided the electorate (twenty-eight and twenty-nine seats, respectively), while in the district votes, where the Islamists were careful to run only as many candidates as there were seats, the split was forty-five to seventeen in Hamas’s favor. Once again, organization, not just popularity, made the difference. With majority in the Parliament, Hamas was able to choose the

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prime minister, which seemed to catch them by surprise. The choice was not a religious leader, but rather Ismail Haniya, a former dean of the Islamic University of Gaza. His first year in office was a particularly difficult one because of Israeli and American opposition, suspension of aid, and hostility from the Fatah faction and the Palestinian president, Mahmoud Abbas. Finally, Hezbollah in Lebanon has grown in significance since the early 1980s. It made a name for itself by defending the rights of the Shi‘a in Lebanon—the largest community, but less than a majority—and by fighting the Israeli occupation of the south. After the Taif Accords that ended the Lebanese civil war, Hezbollah was the only party to keep its armed militia (ostensibly to fight the Israelis), which allowed them, with significant help from Iran and Syria, to create something of a state within a state in south Lebanon. The leader of Hezbollah, Hassan Nasrallah, became something of a mythic, charismatic figure, able to mobilize hundreds of thousands of his followers. As of late 2006, he was testing his strength by calling for popular protests to force the resignation of the government in Lebanon. He said he did not favor an Islamic state for Lebanon, given its social makeup, but he seemed determined to enhance the power of the Shi‘a minority. As with the Shi‘a political figures in Iraq, there is a strong feeling among them that they have been discriminated against by the establishment for too long and that now is the time to right the balance. Islam provides a potent mobilizing force, a language for expressing grievance, and a basis for collective action.19

A N atio nal ist-I sl ami s t Symb i os i s : Th e State a nd Rel igi on i n Egypt Today By way of conclusion, we will briefly examine the role of the state and religion in Egypt. As the largest Arab country, with the strongest state tradition, one might expect here to see that something akin to the Turkish model might prevail. And to a degree, that has been the case. The ruling elite has been relatively secular; the army and security forces play a crucial role in upholding the state; civil society is allowed to flourish, but within limits. Egypt, however, has been more reluctant to go down the road of electoral democracy. In addition, unlike Turkey, it has not allowed a legal Islamist party. The MB is tolerated, but not allowed a legitimate voice in politics. Yet today it is widely believed that if Egypt were to have a free election, it would be the MB that would win. Mubarak has been in power since 1981; many Egyptians dislike the idea that his son will

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automatically succeed him; and reformers within the official party are still fighting an uphill battle. Some observers see Egypt as ripe for an Islamic revolution, similar to what happened in Iran. That would seem to underestimate the reservoirs of power in the state and the determination of the ruling elite to hold on. Others see the possibility that the state will try to accommodate Islamist opposition by reaching some form of accommodation with the MB, allowing more influence of religion in society, allowing a strong minority presence of Islamists within the parliament, and showing more overt deference to Islamist values. Whatever the precise outcome, Egypt seems likely to reinforce the main theme of this chapter—that politics and religion in the Middle East/North Africa region have become deeply involved with one another. Even a strong state with a secular nationalist past has been obliged to accommodate Islamist forces; but at the same time, even the oldest and best entrenched Islamist movement, the Egyptian Muslim Brethren, has had to tread carefully when confronting state power. Within this complex region, we see several different models of how the state and religion interact, but nowhere, it can be said quite clearly, does the Jeffersonian model of a “wall of separation” exist. Usually the state has the upper hand in the struggle with Islamists, but in recent years the Islamists have proved themselves adept at challenging the old nationalist order and on occasions they have been able to take control of the state. But even when they do, they behave more as politicians than as religious leaders of a transnational Islamic umma. The state is too well established in today’s Middle East for it or its logic to be ignored, even by those Islamists who may denounce nationalism and its institutional expressions as contrary to Islam itself.

Notes 1. See Niyazi Berkes, The Development of Secularism in Turkey (New York: Routledge, 1999); and Bernard Lewis, The Emergence of Modern Turkey (New York: Oxford, 2001). 2. Sam Kaplan, The Pedagogical State: Education and the Politics of National Culture in Post-1980 Turkey (Palo Alto, CA: Stanford University Press, 2006), 42. 3. Kaplan, Pedagogical State, 80–81. 4. Ibid., 43. 5. Ibid., 45. 6. Ibid., 81.

Religion and Politics in the Middle East and North Africa 169 7. See Jean Lacouture, Nasser (New York: Knopf, 1977); and Kirk Beattie, Egypt During the Nasser Years: Ideology, Politics, and Civil Society (Boulder, CO: Westview, 1994). 8. See Clement Henry Moore, Tunisia Since Independence (Westport, CT: Greenwood Press, 1982); Lisa Anderson, The State and Social Transformation in Tunisia and Libya, 1820–1980 (Princeton, NJ: Princeton University Press, 2006); and Eva Bellin, The State and Social Transformation in Tunisia and Libya, 1820–1980 (Ithaca, NY: Cornell, 2002). 9. William B. Quandt, Revolution and Political Leadership: Algeria 1954– 1968 (Cambridge, MA: MIT Press, 1969). 10. Lazreg, Marnia, The Eloquence of Silence: Algerian Women in Question (New York: Routledge, 1994). 11. See William B. Quandt, Between Ballots and Bullets: Algeria’s Transition from Authoritarianism (Washington, D.C.: Brookings Institution Press, 1998); Luis Martinez, The Algerian Civil War, 1990–1998 (New York: Columbia University Press, 2000); Séverine Labat, Les islamistes algériens: entre les urnes et le maquis (Paris: Editions du Seuil, 1995); Lahouari Addi, L’Algérie et la démocratie: pouvoir et crise politique dans l’Algérie contemporaine (Paris: Editions la Découverte, 1994). 12. Helena Cobban, The Palestinian Liberation Organization: People, Power and Politics (New York: Cambridge University Press, 1984). 13. Ziad Abu-Amr, Islamic Fundamentalism in the West Bank and Gaza: Muslim Brotherhood and Islamic Jihad (Bloomington, IN: Indiana University Press, 1994). 14. Samuel Huntington, Political Order in Changing Societies (New Haven, CT: Yale, 1968), 177–91. 15. Michael Herb, All in the Family: Absolutism, Revolution, and Democratic Prospects in the Middle Eastern Monarchies (Albany, NY: SUNY Press, 1999). 16. Charles Kurzman, The Unthinkable Revolution in Iran (Cambridge, MA: Harvard University Press, 2004). 17. See Ervand Abrahamian, Khomeinism: Essays on the Islamic Republic (Berkeley: University of California Press, 1993); R. K. Ramazani, Revolutionary Iran: Challenge and Response in the Middle East (Baltimore, MD: Johns Hopkins University Press, 1987); and Kurzman, Unthinkable Revolution in Iran. 18. Carrie Rosefsky Wickham, Mobilizing Islam (New York: Columbia University Press, 2002). 19. Yitzhak Nakash, Reaching for Power: The Shi‘a in the Modern Arab World (Princeton, NJ: Princeton University Press, 2006).

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Chapter 9

Rev i siting Jef f erson’s Wa ll from a Contemporary Middle-Easter n Perspective Ann Elizabeth Mayer

When he called for separation of religion and state, it is unlikely

that Jefferson ever considered scenarios like the ones currently facing countries in the region comprising the Middle East and North Africa (here shortened to “Middle East” for convenience). I propose to bring an imaginary Jefferson to a contemporary vantage point where he could assess the fit between his eighteenth-century idea of a wall between religion and state and contemporary politics of religion in that region. I believe that I might persuade Jefferson that an unanticipated phenomenon, the ideologization of religion, had become the major threat to the freedoms that his wall aimed to protect. I propose also that I could convince Jefferson that, in certain circumstances, upholding Islam as the state religion under a traditional Islamic monarchy could actually help to secure space for democracy and religious freedom. I believe that I could get him to concede, albeit reluctantly, that in the contemporary Middle East, clinging to an absolutist policy of separating religion and state could be unwise and even counterproductive—and that in current circumstances, certain compromise formulations of constitutional principles concerning the role of religion would be the better option. In trying to convert Jefferson, I would not hide the fact that Middle Easterners—often of the better-educated classes—do appreciate the benefits that could flow from constructing a Jeffersonian wall

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between religion and state. These benefits have been highlighted by Muslims’ experiences under regimes that exploited Islam as a tool of despotism. Many Muslims have come to embrace the ideal of separation after experiencing patterns of oppression resembling those once decried by the Enlightenment thinkers who called for the disestablishment of Christian churches. However, even those Muslims who in principle would ultimately like to see a Jeffersonian wall erected may doubt whether proposing such a wall is at all practical or prudent in present circumstances. To give Jefferson a sense of the politics of religion in today’s Middle East and a sense of the startlingly wide variations in the religionstate relationship there, I can point to two extremes that happen to be embodied in two neighboring states: secular Turkey and theocratic Iran. Jefferson would have to be apprised that the Ottoman Empire, still formidable in his day, had painfully disintegrated and eventually collapsed in the early twentieth century, leaving behind many individual states, including a Turkish state based in Anatolia. Under the secular nationalist leader Kemal Ataturk, who had successfully defended Anatolia from European attempts to carve up the remnants of Ottoman territory, the most Europeanized modern Muslim state emerged. On the same territory where Ottoman Sultans had maintained pretensions to rule as caliphs, successors to the Prophet Muhammad, a Frenchstyle republican regime emerged that embraced laicite and completely sidelined Islamic law. This model demonstrated potent appeal in other parts of the Middle East, but at the popular level, there was strong religiously based resistance to secularization. At the end of the twentieth century, Turkey, like other Middle Eastern countries, struggled with agitation on behalf of a countervailing ideology, Islamism, which managed to win out in neighboring Iran. Jefferson would need to grasp the contemporary phenomenon of Islamism. The ideologization of religion, which entails a reconfiguration of the Islamic faith, had no exact counterpart in Jefferson’s day. Islamism has altered the way many Muslims conceive of the proper religion-state relationship, as has been explained in an extremely valuable recent study of Muslims’ historic debates about Islamic constitutionalism.1 With this background, Jefferson would be prepared to appreciate how ideologized Islam jeopardizes rights and freedoms. Islamists invoke the original model of the unified Muslim community, or umma, which was ruled by the Prophet Muhammad, a leader who was an infallible guide on the requirements of Islamic law and who combined supreme religious and political authority, a model

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that evolved into the caliphate after his death. Among Muslims, this ideal of a unified religiopolitical entity retains widespread appeal in the abstract, but Islamists have stood out in their adamant insistence that this model can be revived in present circumstances, even though the fragmentation of the umma into separate nation-states makes this extremely problematic. The theory goes that the historical model of the umma was intended to be normative, that Islam requires unity of religion and state, and that separating the two is inherently un-Islamic and harmful to the interests of Muslims. To grasp the reasons behind the appeal that this model holds, Jefferson would need to survey the prevailing patterns of misrule, tyranny, exploitation, economic stagnation, and corruption in the Middle East, which have caused widespread social discontent and calls for a new order.2 Islamism promises the disaffected that a utopian system lies at hand that can easily cure all these ills. According to Islamist theory, all that is required is rule by pious leaders committed to the faithful implementation of Islamic law, which constitutes the blueprint for perfect societies. Islamists claim that their programs will win divine approval and thereby solve the problem of the relative weakness and underdevelopment of Muslim societies vis-à-vis the economically and militarily more powerful West, a state of affairs that rankles bitterly. With religion and state unified, Islamists predict, the Muslim world will be reinvigorated, will revive its former glory and power, and will quickly outstrip the West. Islamists propagate the idea that the West has plotted to secularize Muslim societies as part of a strategy of domination and exploitation. I would offer the case of Iran, the country that Jefferson knew as Persia, to illustrate the impact of Islamism and its disastrous consequences for religious freedom. In the twentieth century the monarchical system, which formally retained Islam as the established religion, had sidelined and alienated the leaders of the dominant Iranian sect, Twelver Shi‘ism. It vigorously pursued Westernizing policies and was seen to be subordinating Iranian interests to U.S. strategic agendas. Iran’s last shah, one of the closest U.S. allies, was overthrown in a 1979 popular revolution that was conducted in the name of exalting Islam while also promising democratization. Led by Ayatollah Khomeini, an ambitious Islamic cleric who knew how to exploit resentments of the West and Islamic loyalties for his own political ends, the revolution culminated in the emergence of a theocratic government committed to reinstating many elements of medieval Islam. Khomeini’s theory was that rule by a learned expert in Islamic law was the best approximation of rule by the Prophet and his rightful successors. Under

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Khomeini, a faction of reactionary and intolerant Shi‘ite clerics succeeded in monopolizing power, quickly manifesting their antipathy to rights and freedoms and wielding their official Islam as a weapon against their foes. Believing in progress and assuming that the merits of systems where religion and state are separated would gain recognition, Jefferson would be shocked that such a cabal of retrograde theocrats could seize power centuries after he had penned the 1779 Virginia Statute for Religious Freedom. Jefferson would be further perturbed to learn that in the Middle East, Iran is not the only country where secularizing trends have been reversed and where states increasingly undertake the role of enforcers of religious law. Other countries like Pakistan and Sudan that had once followed relatively secular nationalist policies have changed course in the face of an upsurge in pressures for Islamization. Turning back the clock, several regimes have joined Iran in enforcing a politicized version of Islamic law that has entailed executing or imprisoning Muslims on charges of apostasy and heresy, denouncing dissidents as enemies of religion, subjecting disfavored Islamic sects and religious minorities to harsh discrimination and persecution, and censoring expression deemed disrespectful of officially endorsed religious doctrines. Such accounts of moves backward toward religious tyranny would distress Jefferson, who might assume that the Turkish model of laicite would be more propitious for freedoms. However, upon careful examination of the Turkish case, he would learn that Turkish laicite does not mean separation. In Turkey the state tries to control religion with the aim of ensuring that it does not become a destabilizing force. Thus, the government finances mosques and religious education consonant with official policies. In practice this has meant state support for a particular version of Sunni Islam and disregard for other Muslims’ views. Members of Turkey’s large Alevi sect, whose heterodox beliefs lead many Muslims to denigrate them as heretical, have effectively been relegated to second-class status. As dissatisfied as Alevis are with the pro-Sunni bias of Turkey’s government, they are much more intensely opposed to Islamism. Like other Islamists, Turkish Islamists have shown a propensity to condemn minority sects and attack nonconforming beliefs, and their animus toward Alevis has manifested itself in sometimes lethal violence.3 Moreover, when one looks beyond the confines of Turkish religious policy, one perceives how ingrained patterns of repression are, proof that disestablishing religion does not necessarily mean ending stateimposed orthodoxy or relaxing onerous restrictions on freedom of

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thought and expression. Turkey has its own rigid political orthodoxies that are enforced by public prosecutions and by private lawsuits, as was shown in a series of notorious cases that began in 2005.4 Both the Iranian and Turkish systems fall short by the standards of international human rights law, a phenomenon to which Jefferson would require an introduction. Learning about the role of the United Nations in elaborating and promoting such principles, he would be gratified to see the formulation in Article 18 of the 1948 Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.” Having read this declaration, Jefferson might be puzzled to learn that at the international level, it is assumed that the practice of states having an established religion can potentially be accommodated and is not viewed as inherently incompatible with religious freedom. The United Nations Human Rights Committee, which deals with civil and political rights like freedom of religion, in referring to the International Covenant on Civil and Political Rights (ICCPR), advises that “the fact [that] a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant.”5 That is, the committee, although allowing establishment, takes pains to admonish that establishment must not compromise civil and political rights. In its commentary, the committee differentiates states having an established religion from ones where religion is ideologized, going on to warn that “if a set of beliefs is treated as official ideology in a constitution, this shall not result in any impairment of the freedom of thought, conscience, or religion, or in any discrimination against persons who do not accept the official ideology, or who oppose it.”6 Obviously, the committee views the ideologization of religion as a more substantial threat to religious freedom than mere establishment of religion. However, it takes a stance that many observers of Middle Eastern developments would deem to be unrealistic—assuming that regimes that do adopt religious ideologies like Islamism could nonetheless be expected to show solicitude for the human rights that contemporary experience indicates that they disprize. The Islamic Republic of Iran offers an apposite illustration of the repercussions that a state’s adoption of an Islamic ideology can have. As a product of this ideology, Iran’s 1979 constitution lacks any

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provision for freedom of religion. In its preamble the constitution indicates the ideological functions that Islam has assumed: The basic characteristic of this revolution, which distinguishes it from other movements that have taken place in Iran during the past hundred years, is its ideological and Islamic nature . . . the awakened conscience of the nation, under the leadership of Imam Khomeini, came to perceive the necessity of pursuing a genuinely Islamic and ideological line in its struggles. . . . Our nation, in the course of its revolutionary developments, has cleansed itself of the dust and impurities that accumulated during the past and purged itself of foreign ideological influences, returning to authentic intellectual standpoints and world-view of Islam. It now intends to establish an ideal and model society on the basis of Islamic norms. The mission of the Constitution is to realize the ideological objectives of the movement and to create conditions conducive to the development of man in accordance with the noble and universal values of Islam.

Invoking the official Islamic ideology, the ruling clerics crushed religious liberty, terrorizing religious dissidents and persecuting and prosecuting both Muslims and non-Muslims for crimes in which religious and political offenses could be commingled. Religious minorities, treated as presumptive opponents of the official Islamic ideology, suffered grievously. Some concrete examples could indicate to Jefferson the nature of Iran’s theocratic system. In a chapter reminiscent of the worst excesses of the Spanish Inquisition, the cruelest tortures were applied to imprisoned dissidents to make them confess their theological errors and political crimes and publicly denounce their own “subversive” beliefs.7 At one stage when mass executions of imprisoned leftists were being carried out, the commission charged with deciding which prisoners would have to die demanded that prisoners answer a set of questions, the answers to which would be used to decide their fates, including the following: Are you a Muslim? Do you believe in God? Is the Holy Koran the Word of God? Do you believe in Heaven and Hell? Do you accept the Holy Mohammad to be the Seal of the Prophets? Will you publicly recant historical materialism? Will you denounce your former beliefs before the cameras? Do you fast during Ramadan? Do you pray and read the Holy Koran? Would you rather share a cell with a Muslim or a nonMuslim? Will you sign an affidavit that you believe in God, the Prophet, the Holy Koran, and the Resurrection?8

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Hojjat al-Islam Sayyed Mehdi Hashemi, a clerical follower of Ayatollah Khomeini who became a member of the ruling elite of the Islamic Republic, experienced the grim consequences of unifying religion and state. Hashemi served in high posts such as the chairmanship of the ideological committee of the Council of Revolutionary Guards, but, having fallen out with the leadership in 1986 over his objections to the regime’s secret dealings with the United States and Israel, a purely secular imbroglio, he was imprisoned. His objections to this foreign policy imbroglio were reclassified as an offense against “Islam.” He was subsequently pressured into making a public confession of his deviations, which went through several iterations before authorities had a version that they deemed sufficiently abject for broadcasting on national television. In his televised confession, Hashemi accused himself of succumbing to carnal instincts that had let him into illicit relations with the former shah’s security apparatus and with Satan. He was, he said, guilty of “heresy, apostasy, and treason against the Imam, the Community, Islam, and the Islamic Revolution.” He called himself “a despicable sinner” who had no business serving in government. He was tried and convicted in 1987 on charges including “waging war on God” and “succumbing to Satan,” for which crimes he was executed.9 As his case showed, after political and religious offenses became linked, the regime’s critics risked being exposed to the death penalty that was applied for religious offenses such as apostasy and waging war on God. Jefferson would discover philosophical allies among the many Iranian clerics and religious thinkers who have been appalled by such events and have emerged as strong proponents of separating religion and state. The bolder ones have risked death to call for taking religion out of politics, believing that Islam had become deeply corrupted as it became an instrument of governmental oppression.10 The harsh retaliation that is regularly meted out to critics of Iran’s official Islamic ideology indicates that the clerical regime fears that calls for separating religion and state have all too great a resonance among the populace. In 1995 the influential reformist cleric Hassan Yussefi Eshkevari proposed a system of “Islamic Democratic Government,” proposing that Islamic doctrine accepts that religion “has no connection with government and state, neither in theory or in practice.”11 A leading reformist intellectual, Akbar Ganji, in his Internet book Manifesto of Republicanism: Republicanism versus Constitutionalism, asserted that democracy must be Iran’s priority and that there was no chance of democracy under the current Iranian constitution, which placed

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Islamic law above all institutions—including the constitution itself.12 In 2002, another reformist thinker, Hashem Aghajari, called for an Islamic Protestantism to rescue Islam from the clerical hierarchy. He was subsequently arrested, convicted of apostasy, and sentenced to death, although the sentence was eventually commuted.13 The prominent Iranian philosopher Abdolkarim Soroush, originally a fervent believer in the Islamic Revolution, has become an important voice expressing Muslims’ disillusionment with Islamism.14 An outspoken critic of Iran’s official Islamic ideology, he struggles to survive as a beleaguered and persecuted dissident. Soroush argues that when Muslim societies respect democratic principles, politics will necessarily reflect voters’ Islamic values, making the preoccupation with maintaining Islam as Iran’s state religion otiose. Wanting Islamic thought to progress but finding that religious inquiry is blocked where Islam is controlled by government ideologues who insist that Islam can have only one fixed meaning, Soroush attacks the ideologization of Islam on the theory that religion is stultified thereby. However, this is far from his only basis for objecting to Islamism. Behind this attack lies his prioritization of democracy and human rights, both of which Soroush treats as being paramount values.15 Although his discussions are placed in an Islamic framework, the ideas of Soroush are not far from those espoused by Jefferson. While Islamists encourage the notion that any separation of religion and state contravenes Islam, it is not only in Iran that one finds Muslims who have critically examined Islamic doctrine and history who beg to differ. In the sphere of public law, Islamic law has always been weakly developed, one sign of which has been that, since the death of the Prophet Muhammad, Muslims have never agreed on the principles of Islamic government. Even today, Muslims who propose schemes to unify religion and state share no common philosophy about what an Islamic state requires, which is indicative of the lack of authoritative doctrine on the topic. Contemporary nation states mostly have constitutions that are borrowed from European countries—borrowed because their leaders find no adequate Islamic models to build on. That is, the state itself is now based on principles alien to the Islamic heritage. Draping this essentially secular entity with Islamic symbolism—as when Islam is stipulated to be the state religion or the country is labeled an Islamic Republic—may serve to persuade many Muslims that this European interloper possesses an Islamic character, but this does not alter the fact that conventional Western models of governance prevail.

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Why, then, if constitutional stipulations establishing Islam in contemporary states are not actually mandated by Islamic doctrine, is Islam so regularly established as the state religion in the Middle East? A recent Harvard survey that is not limited to Muslim societies suggests that factors unrelated to religious doctrine may be critical in influencing which countries have established religions. It claims that having one particular faith predominating within a country and having population sizes in the middle range correlate with stipulating a state religion.16 According to this analysis, even without Jefferson’s campaign on behalf of religious freedom, one would not expect the United States to have a state religion. With a population of 300 million it ranks as one of the larger countries, and its Christian majority is fractured into competing sects and denominations. Conversely, with most Middle Eastern states having population sizes in the middle range and many being overwhelmingly Muslim, most with a large majority belonging to one Islamic sect, one would expect that Islam would wind up as the established religion, Once Islam is established, regimes wanting to displace Islam may be deterred from doing so by apprehensions relating to the explosive character of the politics of religion. In Afghanistan, where religious policy has lurched from one extreme to another, Jefferson could observe an instructive illustration of how the religion-state relationship can become a bone of contention as rival factions contend for mastery. Since the 1970s Afghanistan has had to contend with the overthrow of a monarchy that espoused moderate religious policies, followed by a 1978 takeover by a ruthless Marxist clique that pursued a tough secularist agenda with Russian military backing. This provoked resistance in which Islamic fervor and Afghan nationalism were fused in a struggle to drive out the Russian military, which culminated in the overthrow of the Marxists in 1992. (As often happens, a push for secularization was tainted by association with Western imperialism.) In 1996, power was seized by the Taliban, a faction of Islamist zealots who espoused an especially retrograde version of Islam and trampled on religious freedom, only to fall out later with the United States for refusing to render up the mastermind of a shocking terrorist attack on New York. In the wake of the 2001 U.S. invasion, the Taliban were ousted from the capital, and Afghanistan established a shaky democracy under U.S. auspices that espoused moderate religious policies born of the need to compromise. The 2003 Afghan constitution simultaneously upheld Islam as the state religion and also promised to protect human rights. How these provisions would function in such unsettled conditions and whether the fragile new government, which

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was besieged by resurgent Taliban forces and unable to control the provinces, could endure without continued Western military backing were open to question. That is, after decades of devastating conflicts in which religious policies had figured centrally, the relationship of religion and state remains explosive—meaning that no prudent Afghan government would risk disestablishment. A review of the Afghan record of repeated upheavals linked to religious policies illustrates why governments are disinclined to risk inflaming religious passions by pressing secularizing agendas. With greater familiarity with contemporary Middle Eastern conditions, Jefferson might come to realize that erecting a wall between religion and state could actually be counterproductive in terms of his objective of advancing religious freedom, because taking ambitious steps to minimize the public role of Islam could energize local Islamist movements and provoke a backlash. Now, if Jefferson undertook some research on this topic, he would learn that not everyone concurs that Islamism threatens democratic freedoms. He would discover that many spokespersons for Islamist movements and sympathetic Western scholars are currently insisting that Islamists do not deserve the reputation that they have obtained for espousing obscurantist policies inimical to rights and freedoms. Their defenders claim that not all Islamists should be tarred with the same brush and that one needs to acknowledge that some Islamists are committed to democratic reforms and ready to respect human rights.17 Against that claim, one could argue that by the very nature of their ideology, typical Islamists will be disposed to crush religious freedom. After all, their whole program rests on their conviction that they possess God’s perfect plan for ordering human society. Believing that they are carrying out a divine mandate disposes them to be intolerant of dissent. In this connection, it seems relevant that prior to the success of the Islamic Revolution, Ayatollah Khomeini and his coterie offered repeated assurances that their Islamic Revolution would be dedicated to shoring up democratic freedoms—only to reverse course and reveal their despotic inclinations once they had grasped the reins of power securely in their hands.18 Until the good faith of self-proclaimed “democratic” Islamists is tested by more experience, it will remain difficult to ascertain whether they are sincere or merely making such claims with the aim of disarming their critics. In the interim, skepticism seems warranted. Meanwhile, Muslims who would ideally want to erect a Jeffersonian wall may condone governments’ defensive strategies designed

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to shore up their Islamic legitimacy. In this connection, I would urge Jefferson to consider the religion-state relationship in Morocco, a country governed by a religiously grounded monarchy. Morocco is a kingdom that Jefferson knew when it still styled itself a sultanate and became the first country to recognize the new United States of America. The same dynasty still rules in a style that retains some features of the eighteenth-century sultanate. However, in the interim, the overall system of government has in many respects been Westernized, adopting many laws and institutions inspired by French models. Jefferson would read in Article 1 of the 1996 constitution that Morocco is defined as a constitutional, democratic, and social monarchy, which would suggest that the underpinnings of the state were secular rather than religious.19 Nonetheless, Jefferson would encounter clear indications in the Moroccan constitution that religion and state are intertwined. Article 6 provides that Islam is the religion of the state. According to the recent Harvard research on how constitutional provision for established religion correlates with population size and predominance of one particular religion, this would be the predictable outcome in Morocco, a country of moderate size (33 million) that is 98 percent Sunni Muslim. The same article provides that the state “guarantees to all freedom of worship,” which Jefferson would recognize amounts to less than a foursquare endorsement of freedom of religion. In the constitution, the monarch is designated “commander of the faithful,” the ancient title for the ruler of the early Muslim community, when all Muslims were deemed to owe political allegiance to the rightful successor to the Prophet. According to classical models, this ruler should be a descendant of the Prophet Muhammad’s tribe, a descent claimed by the Moroccan dynasty. Of course, assimilating the status of the Moroccan king to that of the earliest Islamic rulers is incongruous in a world that has since been chopped up into many nation-states, because the king’s religious authority is only acknowledged within Moroccan territory. Further investigation would show Jefferson that by virtue of the Moroccan ruler’s exalted lineage and in keeping with the dynasty’s pretensions to rule as the rightful successors to the Prophet Muhammad, the king is deemed to be imbued with baraka, a special sanctity and blessing. Article 23 of the constitution recognizes this Moroccan tradition, providing that the king’s person is inviolable and sacred. The king’s special status is meant to be immutable.20 Other ancient trappings of Islamic rule, including the venerable bay‘a ceremony, in which representatives of his faithful subjects appear before the ruler to

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swear allegiance to him, are perpetuated with the aim of shoring up the mystique of the monarchy. These characteristics of the monarchy might dispose Jefferson to expect that religious freedom would suffer grievously. Thinking of cases that he had studied, he might surmise that this Moroccan system resembled England after Henry VIII established a national church under the king’s leadership, the 1534 Act of Supremacy having declared that the king was “the only Supreme Head in Earth of the Church of England.” Of course, this was a system that laid the groundwork for a dismal period of religious persecutions and repression. In the light of this history, Jefferson might anticipate that having a ruler who combined political and religious authority in Morocco might occasion similar strife and subsequent degradation of religious freedom. In actuality, significant distinctions between the circumstances prevailing in contemporary Morocco and those under Henry VIII have made it possible for Morocco to develop a system that by the standards of the region is exceptionally open and tolerant. The Moroccan monarchy represents religious continuity, whereas Henry VIII broke with tradition and inaugurated a new system that accorded him leadership of the Anglican Church, incurring the pope’s wrath and alienating England’s Catholics. This occurred at a time of painful schisms between Catholicism and breakaway factions that culminated in protracted warfare that shook European Christendom and also engendered violent religious conflicts in England. Catholics, Anglicans, and various Protestant groups were pitted against each other. Recourse to religious repression by English monarchs, some favoring Catholicism and others favoring the Protestant side, was a natural consequence. The king’s leadership of the Islamic faith in Morocco has different dimensions. Until the recent upsurge in Islamism, the Moroccan religious situation has been stable. In much the same way that Swedish citizenship and affiliation with the Swedish Lutheran Church were until recently coterminous, Moroccan identity has been intertwined with a distinctive brand of Islam. In context, proclaiming the king to be the “commander of the faithful” does not carry with it the ominous portents for religious liberties that the Tudor monarchs’ assumption of the leadership of the English Church did. Moroccans overwhelmingly adhere to the Maliki rite of Sunni Islam, but Moroccan Islam has traditionally incorporated local elements such as saint worship that give it a special character. As was common in the Middle East before the disruptive impact of colonialism and nationalism, local Christian and Jewish communities have been allowed to maintain their separate

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identities and to worship according to their beliefs, as was presaged by the constitutional guarantee of “freedom of worship.” It is the rise of Islamism that threatens the moderate policies that have heretofore characterized the status quo. The concept of royal sovereignty has evolved in ways that differentiate the modern Moroccan monarchy from traditional sultanic despotisms. Under the rule of Muhammad V (1927–53, 1955–61), who served as the titular head of the Moroccan national independence struggle against the French, the monarchy became identified with liberating the nation. That is, in lieu of the signers of the Declaration of Independence fighting for liberty, one had Morocco’s supreme religious authority spearheading the anticolonial struggle. In the contemporary setting, the king’s religious authority is expressly combined with his duties to guarantee national independence, uphold the constitution, and protect rights and liberties. Jefferson would be intrigued to read the blend of Islamic and constitutionalist features in Article 19 of the Moroccan constitution: “The King, commander of the faithful, amir al-mu’minin, supreme representative of the nation, symbol of its unity and guarantor of the permanence and continuity of the state, shall ensure the observance of Islam and the constitution. He shall be the protector of the rights and liberties of the citizens, social groups, and collectivities. He shall guarantee the independence of the nation and the territorial integrity of the Kingdom within its authentic borders.” By itself this article signals the distinctive role played by Moroccan kings. In Article 19, the Moroccan king’s duties to ensure respect for “Islam” and “the constitution” are parallel and seemingly of equal weight. Wording in the preamble expands the meaning of “the rights and liberties of the citizens” that the king is bound to protect, indicating that Morocco adheres to human rights as they are formulated in United Nations documents. The preamble refers to Morocco’s awareness of “the necessity of setting its action within the context of the international organizations of which it is an active and energetic member,” and proclaims that “the Kingdom of Morocco subscribes to the principles, rights, and obligations emanating from the charters of the aforesaid organizations and reaffirms its attachment to human rights as they are universally recognized.” However, one would not want to mislead Jefferson into thinking that this constitutional reference means that international human rights law is strictly adhered to in the religious domain. Notwithstanding the affirmation of universal human rights, some traditional rules of Islamic law continue to exert influence and curb religious freedom.

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For example, Moroccan policy reflects the common understanding in Muslim countries that Islamic law prohibits conversions from Islam to other faiths. Thus, Morocco punishes apostates and places restrictions on Christian missionary activities that are aimed at converting Muslims. In the wake of Iran’s Islamic Revolution, Shi‘ite Islam has become associated with radical Islamism, which explains why the Moroccan government has shown itself to reluctant to authorize Shi‘ite organizations. Restrictions on religious freedom can overlap with curbs on organizations and movements that are deemed politically subversive; not surprisingly, the Moroccan government exploits its power over religion to restrict Islamism. To give him a fuller picture than I have time for here, I would refer Jefferson to the review of the religious situation in the 2005 U.S. State Department report on the religious climate in Morocco. (See the Appendix at the end of this chapter for relevant excerpts.) If he compared it with reports on other Middle Eastern countries, he would appreciate that in the regional context, the Moroccan record stands out as a relatively progressive one. That is, with religion and state closely intertwined, the Moroccan model has turned out to offer a far greater degree of religious freedom than one finds in a country like Iran. One of the most significant developments in Morocco has been the steady progress of democratization since the early 1990s, which suggests that an Islamic monarchical system with many traditional features has the capacity to accommodate expanded freedoms. Since acceding to the throne in 1999, the current king, Muhammad VI, has encouraged democratic reforms and has taken measures supportive of human rights. Unfortunately, the future of the democratizing trend is far from guaranteed given that the government has occasionally shown nervousness about its ability to control political developments and has clamped down hard on some opponents. The monarchy’s close alliance with the United States compromises its legitimacy at a juncture when U.S. policies in the Middle East have aggravated anti-American sentiment. Widespread official corruption and the dramatic gap between the haves and have-nots have fostered popular anger and unrest. Facing bleak prospects at home, Moroccans have emigrated in large numbers to Europe in search of a better life. These conditions facilitate recruitment efforts by Islamist movements that promise that applying Islamic precepts will give rise to a just order and spread prosperity. By far the most dynamic faction of Moroccan Islamism is the group known as al-‘Adl wa’l-ihsan, led by the aging Sheikh Abdessalam Yassine. This group seeks to overthrow the monarchy and establish an Islamic state in Morocco. An

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acknowledged admirer of Iran’s Islamic Revolution, Sheikh Yassine has publicly praised its leader, the Ayatollah Khomeini, under whose auspices Iran’s theocratic regime was established—a regime that, as noted, was particularly destructive of religious freedom.21 Both the late King Hassan II and the current King Muhammad VI exploited their roles as commander of the faithful and traditional Islamic loyalties to shore up their power. Unlike the shah of Iran, an autocrat who stood for Western-style modernity and who capitulated as protestors filled the streets of his capital calling for an “Islamic” revolution, the Moroccan kings are not shy about pitting their considerable religious authority and charisma against dissident Moroccan Islamists. Supporters of the monarchy would argue that without the Islamic mystique attaching to the monarchy and related institutions, Morocco would be more vulnerable to an Islamist takeover. Indeed, one could maintain (somewhat crudely) that the king essentially offers Moroccans a bargain: show deference to the sacred status of the monarchy and its moderate official Islam, and you will live under a system that is flexible and able to incorporate some democratic reforms. On the other hand, if you desert the king and open the road to an Islamist takeover, you may suffer under the same kinds of repressive religious policies that Islamist regimes have pursued elsewhere. Appraising this bargain, Jefferson might question whether it was true that Moroccan Islamists would actually be more repressive than a monarchical regime. On this point, one would have to concede that what policies Moroccan Islamists would implement once in power remains a matter of conjecture. Some leading Moroccan Islamists like Nadia Yassine, the ambitious and outspoken daughter of Sheikh Yassine, insist that their objective is to establish a more democratic and egalitarian society.22 They dismiss accusations that they will resort to repression once they are firmly ensconced in power. However, as already noted, there are grounds for mistrusting Islamists’ professions of commitment to the rules of democracy and respect for human rights. To me, it seems plausible to assume that once Jefferson had a grasp of the Moroccan situation, he would acknowledge that his demands for separation of religion and state had rested on his own historically conditioned assumptions. I propose that he might grudgingly concede that upholding the king’s position as head of Moroccan Islam and retaining Islam as the state religion could better serve his goal of protecting religious freedom than would pulling out the prop of religion from under the Moroccan system in this perilous and volatile political climate. That is not to say that Jefferson would endorse the

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Moroccan model as the final word on the subject; its acceptability might be conditioned on treating it as a transitional stage that should eventually be left behind to accommodate a fuller measure of democracy and religious freedom. But what of countries where there is no religiously sanctified monarchy to lend an aura of Islamic legitimacy to a system? What constitutional provisions might serve to forestall a regime’s move to embrace a repressive Islamist ideology? Since secularism does not seem to be a viable option at this juncture, I would propose as an alternative to a Jeffersonian wall that constitutions should set forth explicit guarantees of freedom of religion and also include clauses precluding the governmental embrace of religion as an exclusivist state ideology. The 1992 Czech Constitution offers an interesting model, avoiding an express affirmation that the state will be secular and using instead a formulation that seems more diplomatic, Article 2 affirming that “[t]he state is founded on democratic values and must not be tied either to an exclusive ideology or a particular religion.” A related philosophy seems to have inspired Sudan’s 1998 Draft Constitution, which embodied compromises aimed at calming the acute crisis that rash and aggressive Islamization measures and brutal disregard for the rights of non-Muslim southerners had previously engendered. Southerners fought the north, calling for a rollback of the Islamist policies espoused by the northern military regimes since 1983. The civil war that had ravaged the country with no end in prospect finally persuaded the Khartoum military dictatorship in 1998 that it was urgent to offer concessions to the south. A new constitution was proposed that promised significant changes in religious policy and that aimed to heal the vast rift that had opened up between Muslims and non-Muslims, while at the same time making some gestures to appease Islamists.23 In this interim constitution, which was not adopted until July 2005, separation of religion and state is not expressly endorsed, but there also is no establishment of Islam—a notable omission. Instead, there is strong confirmation that the system accepts the multicultural and multireligious identity of the country. Freedom of religion is guaranteed. To placate foes of secularism the Preamble starts with an affirmation that the people of the Sudan “are grateful to Almighty God” for the wisdom to make the peace agreement, implying deference to the Deity. The preamble also says that the people are “mindful of religious, racial, ethnic, and cultural diversity in the Sudan.” In Article 1 the nature of the state is described. It is expressly stated to be “multi-cultural, multi-racial, multi-ethnic, multi-religious, and

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multi-lingual country where such diversities co-exist.” The Sudan is described as “an all embracing homeland where religions and cultures are sources of strength, harmony, and inspiration,” a clear move away from defining the Sudan as an Islamic state. That is, Article 1 deliberately avoids treating Islamic culture as normative. Racial, religious, and cultural diversity is acknowledged. This amounts to an implicit repudiation of the formerly ruthless campaign to impose a unitary Arab and Islamic identity. Moreover, Article 38 endorses freedom of religion and provides that “no person shall be coerced to adopt a faith that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent.” It effectively disavows the earlier policy of forcible Islamization, which had been undertaken in an attempt to root out resistance to the official ideology. In my estimation, if the goal is to set forth constitutional principles that could potentially win widespread acceptance in the Middle East and that could also shore up protections for religious freedom by deterring the state from espousing an exclusivist Islamist ideology, formulations along the lines of those in the Sudanese draft provisions may offer promising models under current conditions. Their merits should, in my opinion, be evaluated separately from assessments of more recent developments on Sudan’s tragic and conflict-ridden political scene.24

C o nclusi on In summing up my case for my hypothetical Jefferson, I would list my points as follows: 1. In circumstances where resentment of Western ascendancy is widespread and where misgovernment and popular alienation are common, ideologized versions of Islam have proved their ability to mobilize disaffected Muslims by promising that Islamization programs will offer comprehensive cures for sociopolitical problems and a remedy for the relative weakness of Muslim countries vis-à-vis the West. 2. In practice, once exclusivist Islamist ideologies have been imposed, the unity of religion and state has proved destructive of religious freedom and democracy while at the same time having the harmful result of corrupting Islam by embedding it in the political agendas of undemocratic regimes—Iran’s theocracy being a salient example. Iran is a country where Muslims increasingly appreciate how

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separating religion and state both serves democracy and protects the integrity of religion. In current conditions, even though Islamic doctrine has to be stretched to support the unification of religion with the modern nation-state, prevailing popular convictions that Islam requires such unification mean that aggressive secularization measures or the bald-faced disestablishment of Islam will tend to fuel a potentially destabilizing backlash, providing fodder for Islamist movements. Studies suggest that populations of moderate size and the predominance of one religion dispose countries to provide in their constitutions for a state religion. Therefore, at least for the foreseeable future, conditions in the Middle East impede erecting Jeffersonian walls. A situation in like the one in Morocco, where the a religiously sanctified monarchy sponsors a moderate established Islam while pursuing gradual democratization, can afford scope for considerable religious freedom while potentially providing a bulwark against the inroads of Islamism—amounting to a compromise strategy that deserves at least tentative approval. As an alternative to the Moroccan model, rather than aiming for the ambitious and probably unrealistic goal of constitutional provisions for separation of religion and state, constitutions could advance related policies with a better hope of winning acceptance through the inclusion of abstract references to the supremacy of God—which a Deist should find acceptable—while guaranteeing that the state will refrain from espousing any exclusivist religious ideology.

That is, I would put it to Jefferson that in today’s Middle Eastern context, proposals for constitutional provisions affecting religious freedom should be vetted in terms of how likely they are to be viable in practice in an era when the place of Islam in government is such a hotly contested issue and when Islamist movements enjoy such a wide following. This entails backing away from erecting Jeffersonian walls and accepting compromise positions that are less likely to offend religious sensibilities. Nonetheless, as is shown in the changing intellectual climate in Iran in the decades since the Islamic Revolution, Islam itself has been no barrier to an enhanced awareness of the benefits of separating religion and state. Indeed, if Jefferson journeyed to Tehran, there to join reformist clerics and progressive religious thinkers for coffee and debates, he would find himself conversing in a congenial milieu where he would have no need to defend the

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merits of a Jeffersonian wall, which would strike his interlocutors as self-evident.

Ap pendix : S ample As ses sment o f R el ig io us Freedom i n M orocco The following example is excerpted from the U.S. State Department 2006 Report on Morocco, Country Reports on Human Rights Practices—2005, released by the Bureau of Democracy, Human Rights, and Labor, March 8, 2006, http://www.state.gov/g/drl/rls/ hrrpt/2005/61695.htm. c. Freedom of Religion The law provides for freedom of religion, and the government generally respected this right in practice. The constitution designates the king as Commander of the Faithful and says that Islam is the official state religion; nevertheless, nonMuslim communities openly practiced their faiths with varying degrees of official restrictions. The government placed restrictions on certain Christian religious materials and proselytizing by members of any religion. The government did not license or approve religions or religious organizations. The government provided tax benefits, land, building grants, subsidies, and customs exemptions for imports necessary for the observance of the major religions. Beginning in 2003 authorities accused several [imams] and religious counselors of exploiting mosques to promote Islamist parties. The Ministry of Islamic Affairs and Endowments continued to monitor mosques, placed other restrictions on Muslims and Islamic organizations whose activities were deemed to have exceeded the bounds of religious practice or become political in nature, and began to provide religious training for imams, both male and female. The government strictly controlled the construction of new mosques, requiring a permit for construction. Authorities said that these measures were instituted to avoid exploitation of mosques for political propaganda, such as distributing pamphlets and raising funds, or for disseminating extremist ideas. The Ministry of Islamic Affairs and Endowments monitored Friday mosque sermons and the Koranic schools (religious training institutions) to ensure the teaching of approved doctrine. At times the authorities suppressed Islamist activity, but they generally tolerated

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activities limited to the propagation of Islam, education, and charity. Unlike the practice until 2003, security forces did not close mosques to the public shortly after Friday services to prevent the use of the premises for unauthorized political activity. The government provided funds for the teaching of Islam in public schools as part of overall public education funding. On October 27, authorities dropped charges against a Christian convert from Islam who had been arrested for proselytism after police found his passport on a foreign Christian arrested for distributing Christian materials in [Tétouan]. The small foreign Christian community operated churches, orphanages, hospitals, and schools without restrictions or licensing requirement. Missionaries who conducted themselves in accordance with cultural norms could largely work unhindered, but those who proselytized publicly faced expulsion. During the year there were reports of police questioning foreign missionaries because they carried Christian materials. The number of local Christians, apart from foreign spouses of citizens, was minute. The government permitted the importation, display, and sale of Bibles in French, English, and Spanish, but not in Arabic, despite the absence of any law banning such books. Islamic law and tradition called for punishment of any Muslim who converted to another faith. Any attempt to induce a Muslim to convert was illegal. At year’s end the Shi‘ite organization Al Ghadir had not received an answer to its 2002 request for official status, the first such request for a Shi‘ite association. Societal Abuses and Discrimination There were no reports of anti-Semitic acts, publications, or incitements to violence or hatred. Representatives of the Jewish minority, numbering about 5,000, generally lived in safety throughout the country. The Jewish community operated a number of schools and hospitals whose services were available to all citizens. The government provided funds for religious instruction to the small parallel system of Jewish public schools. Jews continued to hold services in synagogues throughout the country. There are two sets of laws and courts—one for Muslims and one for Jews—pertaining to marriage, inheritance, and family matters. Under the new Family Status Code, which applies to Muslims, the

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government began retraining judges and recruiting new civil judges, while rabbinical authorities continued to administer family courts for Jews. There were no separate family courts for other religious groups. The government continued to encourage tolerance and respect among religions. During the 2003 terrorist attacks, members of the Salafiya Jihadia bombed five targets, including a Jewish community center in Casablanca. After the attacks Muslims marched in solidarity with Jews to condemn terrorism. Annual Jewish commemorations took place in the country, and Jewish pilgrims from the region regularly came to holy sites in the country. The International Committee of the Red Cross (ICRC) assisted the Ministry of National Education and the Ministry of Islamic Affairs and Endowments in designing a course on tolerance and international humanitarian law, which was introduced in selected schools.

Notes 1. Said Amir Arjomand, “Islamic Constitutionalism,” Annual Review of Law and Social Science 3 (December 2007), 115–40, http://arjournals .annualreviews.org/eprint/b8Fn27n5uM5gTnBrvfGP/full/10.1146/ annurev.lawsocsci.3.081806.112753. 2. The pervasive repression and lack of freedom in Arab countries have been described and assessed in the Arab Human Development Reports that have been issued by the United Nations Development Program since 2002. Many of the assessments also apply to a considerable degree to nonArab Middle Eastern countries. These reports and details for obtaining them are listed at http://hdr.undp.org/xmlsearch/reportSearch?y=*&c =r%3AArab+States&t=*&k=&orderby=year. 3. See Bedriye Poyraz, “EU Minority Perspective and the Case of Alevilik in Turkey,” EUI Working Papers RSCAS 2006/24, Robert Schuman Centre for Advanced Studies, European University Institute, San Domenico di Fiesole, Italy, http://www.iue.it/RSCAS/WP-Texts/06_24.pdf. 4. See, for example, PEN American Center, “Indictments of Major Novelists Signal Erosion of Free Expression Gains in Turkey,” news release, July 2006, http://www.pen.org/viewmedia.php/prmMID/694. 5. United Nations Human Rights Committee, general comment 22, art. 18, para. 9 (forty-eighth session 1993), UN Doc. CCPR/C/21/ Rev.1/Add.4 (1994), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ 9a30112c27d1167cc12563ed004d8f15?Opendocument. 6. Ibid., at para. 10. 7. See Ervand Abrahamian, Tortured Confessions (Berkeley: University of California Press, 1999); Reza Afshari, Human Rights in Iran: The Abuse

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11. 12. 13. 14.

15.

16.

17.

18. 19.

20.

21. 22.

Ann Elizabeth Mayer of Cultural Relativism (Philadelphia: University of Pennsylvania Press, 2001), 46–56, 83–145. Abrahamian, Tortured Confessions, 212. Ibid.,162–67. See generally Ziba Mir-Hosseini and Richard Tapper, Islam and Democracy in Iran: Eshkevari and the Quest for Reform (London: I. B. Tauris, 2006). Mir-Hosseini and Tapper, Islam and Democracy, 75. For a fuller discussion of Eshkevari’s theories, see ibid., 73–100. Ibid., 178. Ibid., 179. On this phenomenon, see Ann Elizabeth Mayer, “Islamic Law as a Cure for Political Law: The Withering of an Islamist Illusion,” in Shaping the Current Islamic Reformation, ed. Barbara A. Roberson (Portland, OR: Frank Cass, 2003), 117–42. Valla Vakili, “Debating Religion and Politics in Iran: The Political Thought of Abdolkarim Soroush,” Council on Foreign Relations, New York, NY, January 1997, http://www.drsoroush.com/English/On _DrSoroush/E-CMO-19960100-Debating_Religion_and_Politics_in _Iran-Valla_Vakili.html. See Robert J. Barro and Rachel M. McCleary, “Which Countries Have State Religions?” The Quarterly Journal of Economics, 120, no. 4 (November 2005): 1331–70. See, for example, Amr Hamzawy, “The Key to Arab Reform: Moderate Islamists,” Carnegie Endowment Policy Brief, no. 40 (August 2005). http://www.carnegieendowment.org/files/pb40.hamzawy.FINAL.pdf. Mir-Hosseini and Tapper, Islam and Democracy, 76. See my discussion of the role of Islam in the Moroccan constitution in Ann Elizabeth Mayer, “Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition,” UCLA Journal of Islamic and Near Eastern Law 1 (Spring/Summer 2002), 2007–20. In this regard it is significant that although ordinary constitutional provisions are subject to amendment, Article 106 of Morocco’s constitution provides that there can be no constitutional revisions affecting the monarchical form of government and the provisions on the Islamic religion, suggesting that religion and the monarchy are linked and both sacrosanct. In the same vein, Article 39 denies members of parliament their ordinary immunity if they express opinions disputing the monarchy or Islam or constituting an attack on the respect due to the king. Craig Whitlock, “Feud with King Tests Freedoms in Morocco,” Washington Post Foreign Service, Feb.12, 2006, A01. See, for example, “Interview with Nadia Yassine of the Moroccan Justice and Charity Group,” Carnegie Endowment Arab Reform Bulletin 4, no. 6 (July 2006), http://www.carnegieendowment.org/publications/index .cfm?fa=view&id=18528&prog=zgp&proj=zted#interview; see also an

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interview with Nadia Yassine posted on the German Web site Qantara. de Dialogue with the Islamic World, “The System Is Blocked,” http:// www.qantara.de/webcom/show_article.php/_c-476/_nr-589/i.html. 23. Various versions of the Sudanese constitution adopted on July 6, 2005, are in circulation. The version cited here was published as “The Interim National Constitution of the Republic of the Sudan Issued August 2005” in the looseleaf collection Constitutions of the Countries of the World, published by Oceana and edited by Rainer Grote and Rudiger Wolfrum; the editor emeritus is Gisbert H. Flanz. 24. Among the factors warranting consideration in this regard are that the Sudanese draft constitution was not adopted until July 2005, and that in the years since then the Bashir dictatorship has found that its need to compromise has diminished as international developments have tilted in Sudan’s favor and as Bashir’s hand has been strengthened by vastly expanded oil revenues and a growing alliance with China, which is deeply invested in exploiting Sudan’s oil resources.

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Chapter 10

Consti tutionalizing Isl am i n the Ar ab World Nathan J. Brown

The Jeffersonian ideal of a wall of separation between religion and

politics is still a subject of contention in liberal societies; as this book makes clear, even those who accept it understand it in different ways. But what of Islamic government, a term that by its very name suggests a rejection of such a wall of separation? Indeed, there is an oft-cited tension between liberal and Islamic forms of government. Liberal governments are said to be informed by a secular spirit that does not denigrate religion but seeks to relegate it to the private sphere. Mixing religion and politics is held to corrupt both. Islamic forms of government are viewed as based on the converse proposition: corruption comes from eliminating the connection between eternal truths and public affairs. And for much of Islamic history, the quest to understand eternal truths has generally taken legal form: what is right and wrong is a matter not simply for personal morality and practice, but should guide social and political authorities. This generalization is certainly based on truth. Liberal polities do not exclude religion totally from public life, but they have devised a variety of formulas to institute some degree of separation. Yet there is considerable variation in implementing that separation. Not only is the Jeffersonian ideal understood differently; it is also applied differently. Many Europeans are at best uncomfortable by the consistency

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with which American political leaders publicly speak of their personal faith and refer to God; many Americans are puzzled by the degree to which many European states offer financial support and legal protection to some religions and manage to turn matters of how Muslim women dress into protracted political crises. And if liberal secular polities differ greatly on how to manage the relationship between religion and politics, so do those that seek to find a formula for basing a political system on Islam. For all the theoretical importance of Islamic law, most states in the Muslim world—including those that advance strong claims to Islamic legitimacy—base their legal systems on civil law models originating in the non-Muslim world. In most Muslim countries, training in a French law school would prepare most lawyers better than an education in a medieval Islamic school of law. In the Arab world, only a few states avoid restricting Islamic law to matters of personal status (marriage, divorce, and inheritance), and even then they apply Islamic law in institutional forms that few classical scholars would recognize. But other states—most notably Saudi Arabia—will not even countenance the existence of “laws” and “courts” that do not have an Islamic basis, insisting on calling them “regulations” and “committees” even when the legal content and adjudicative structures clearly resemble their civil law counterparts. And Iran claims to implement a form a theocracy known as the “guardianship of the jurist” that accords a very significant measure of authority and oversight responsibility to a religious scholar. Some observers claim that Islamic states pursue an inherently contradictory strategy by seeking to base a constitutional order on Islam. If sovereignty rests with God, then how can a document written by humans serve as the basis for the political system? But this contradiction is more apparent than real: any constitution that provides possibilities for amendment acknowledges the existence of authority higher than itself. The problem is not that ultimate sovereignty might lie with God but that divine sovereignty can be taken to impose not simply general moral commands but also a specific code of law—the Islamic way or sharia. In this chapter, I will present how Arab states have attempted to build constitutional systems that do not violate Islamic precepts. I will first show how and why the tensions involved in such an effort have only emerged relatively recently, first by exploring constitutional forms that sidestepped religious issues and then by examining the birth of comprehensive constitutions that made it more difficult to avoid the role of religion. I will then move to a more detailed consideration of the provisions for Islam in Arab constitutions. I will trace how the

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issue has evolved in a particularly influential predominantly Muslim society, Egypt, showing how the controversy has grown quite sharp but still has had little impact on governing. Finally, I will trace some of the recent debate over the Iraqi constitution to show the spread of the Egyptian pattern of generating more heat than light when debating Islam and constitutionalism.

Co ns titu tio nal Roads Not Taken For a variety of reasons, early constitutional experiments did not always provoke questions of the relationship between the constitutional text and the Islamic sharia. This was partly because constitutions presented themselves as either consistent with or irrelevant to the application of Islamic law. Two constitutional forms emerged early in Arab constitutional history that did not survive long past the collapse of the Ottoman Empire; brief exposition of these alternative forms sheds some light on the problems raised by the more ambitious, comprehensive, and European-style documents adopted by most Arab states in the twentieth century. The first alternative is best exemplified by the first Middle Eastern constitutional document: the qanun al-dawla al-tunisiyya (law of the Tunisian state or dynasty) of 1861. This law was understood by Europeans at the time—and by some scholars since—as a mechanical and inappropriate adaptation of European constitutional forms. A reading of the document, however, reveals something quite different: an attempt to borrow some emerging constitutional practices within a framework described in familiar (and sometimes Islamic) terms. Islamic political vocabulary was used most often. Members of the newly established Grand Council, for instance, were referred to as ahl al-hall wa-l-‘aqd (literally, the people who loosen and bind), and the population was generally referred to as ra‘ayana (literally, our flock). Some European usage was also adopted (the ruler was referred to as the king—al-malik—rather than bey, perhaps an implicit assertion of Tunisian sovereignty), but less than is often supposed. The Grand Council and other councils clearly mixed administrative and judicial functions, violating emerging European constitutional norms of the separation of powers.1 There were some real innovations in the document—such as its insistence on designating only a share of the state budget for the king himself, or that taxes be levied only on a legal basis—but they were not viewed as inimical to Islamic political practice. (The law did imply civil equality regardless of religion, but this principle had already been proclaimed in Tunisia prior to the

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promulgation of the law.) In short, the Tunisian constitution presented itself to Tunisians less as a new political system based on non-Islamic sources but as a new codification of preexisting political practices and institutions. The Tunisian constitution appears to be an attempt to develop a constitutionalist system that is Islamic but not democratic. The point is to render authority accountable to the Islamic sharia and to an elite that keeps the interests of the community in mind.2 Yet the attempt to put such a constitutionalism into practice proved abortive not only in Tunisia but elsewhere. Other Middle Eastern states have occasionally attempted to use Islamic political terminology to present their constitutional reforms, but generally on an ad hoc and isolated basis.3 A second alternative constitutional path was to issue modest documents that purported not to be comprehensive bases for the political order but merely procedural guidelines for operating existing institutions. Many early Arab constitutional efforts followed this model. Perhaps the earliest example came with Egypt’s 1882 constitution (termed the fundamental ordinance, or al-la’iha al-asasiyya). The document was fairly brief, focusing almost all of its fifty-two articles on the Consultative Council that was already sitting. An elected body, the Council was given an extensive role in legislation and in oversight of public finances. Ministers were invited to attend the Council sessions; they could also be summoned. While the constitution stipulated that ministers were responsible to the Council, it also mandated new elections if a difference between the cabinet and the Council could not be resolved. If a newly elected Council insisted on the position of the former Council, its opinion was binding. The few rights provisions were directly related to the Council and its role rather than to the people. These covered matters like petitioning the Council or the immunity of Council members.4 In short, this law is better understood as an organic law for the Council rather than a comprehensive legal framework. It thus provoked little debate about its relationship with Islamic law. Several other Arab constitutional documents followed this pattern. For instance, the collapse of Ottoman rule in the Arab provinces motivated the composition of short-lived and little-remembered constitutional documents in areas that eventually became part of Transjordan and Libya.5 Kuwait in 1938 and the Kingdom of Hijaz (after its conquest by the Saudi family in the 1920s) issued brief constitutional documents that are noteworthy in retrospect for their brevity and the modesty of their provisions.6

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The Comprehensive Alter native Yet even in the late-nineteenth century, a far more ambitious path was opened to constitutional development—one that has provoked controversies and problems regarding how to reconcile it with the prevalence of Islamic legal norms and provisions. The paths described above worked to insinuate constitutional practices by incorporating them into prevailing Islamic vocabularies or by presenting them as modest mechanical and organizational tools that were of administrative but not religious interest. Emerging European conceptions presented a far more ambitious image of constitutions: they were comprehensive legal and political frameworks emanating from the sovereign will (a sovereign that was either a monarch or a people or some odd amalgamation of the two). The Ottoman constitution of 1876 introduced such views, and it has emerged as the dominant form for Arab constitutional texts over the past century. The Ottoman constitution of 1876 was drafted by a group of leading officials and members of the ‘ulama and modified by the cabinet before promulgation by the Sultan.7 The draft the committee finally submitted to the sultan most closely resembled the Belgian constitution of 1831 and the Prussian constitution (itself a more royalist version of the Belgian model). The sultan submitted the draft to the cabinet, which made some changes before promulgation. Because the Ottoman constitution presented itself as a comprehensive governing framework, it provoked some debate regarding the role of Islam and the shari‘a in Ottoman governance. Indeed, some members of the ulama so bitterly and publicly opposed the entrance of non-Muslims into the parliament that they were exiled. The constitution seemed partly designed to further legal equality between Muslims and non-Muslims. Yet it stopped far short of establishing a secular state. Islam was clearly established as the state religion in various institutional and symbolic ways. For instance, the sultan was charged with executing provisions of sharia and qanun law. The authors of the constitution most likely sought no more than to further legitimate positive legislation alongside the Islamic sharia; they also probably wished to wean non-Muslims away from separatist hopes. The constitution implicitly (by the way it was promulgated as well as its effective implementation8) issued from the sovereign and absolute authority of the sultan—a feature affirmed by the decision of the sultan to suspend its operation less than two years after promulgation. Yet the document was reimposed in 1908 and amended the following year to introduce a symbolically critical change: the sultan was now required to swear an

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oath to the sharia, constitution, homeland, and nation—thus formalizing the idea that the sultan himself was subject to the will of God and the people. The Ottoman constitution of 1876 served as a model for constitutional development in the Arab world, which also inherited the controversies and problems connected to its complex messages regarding the role of Islam in politics and governance. These controversies began in fairly muted fashion but have emerged in virtually all Arab countries participating in this Arab constitutional tradition.

I ns ta l l ing the Isl ami c S har i a In the aftermath of the First World War and the collapse of the Ottoman Empire, two Arab states sought to establish their sovereignty and political structure by composing constitutional texts. The first effort was undertaken in Damascus by a new (and abortive) Arab state and turned immediately to the Ottoman constitution for inspiration. While the constitution was not promulgated before the collapse of the state (which occurred with the imposition of the French Mandate), it set the pattern for other documents in the Arab East. Later Syrian, Iraqi, Lebanese, Jordanian, and Kuwaiti documents all drew heavily on the Ottoman constitution. There was a subtle difference in the political context in which these constitutions were written, however. The Ottoman document was issued in an established and recognized state whose leadership was attempting to fend off foreign penetration and fiscal collapse. The constitutions of the Arab East were issued by states that were asserting (or often striving to assert) their independence; this fact tended to heighten the importance of symbolic elements of the constitution. It is therefore not surprising that the Islamic provisions of the Ottoman constitution—often indirect or connected with the Ottoman sultanate that Arab states were interested in denying—were insufficient for emerging states eager to assert their standing and identity. They thus inserted two explicit provisions that were only implicit in the Ottoman constitution. First, Islam was proclaimed the religion of the state. Second, the head of state was required to be a Muslim. In one other case (Iraq), article 76 of the constitution recognized the sharia courts as authoritative in personal status matters for Muslims. To the Arab West, the next effort at constitution writing occurred in Egypt with its 1923 constitution. This experience was successful only in comparison with the 1920 Syrian constitution: it was actually promulgated, but the king suspended it twice and strained at the

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limits implied in its provisions even when it was in force. Nevertheless, it proved extremely influential. Not only did all subsequent Egyptian constitutions begin with the 1923 document as their starting point, but the influence of Egyptian constitutional lawyers throughout the Arab world has led to many of its formulations reappearing throughout the Arab world. Those who drafted the 1923 constitution turned to the Ottoman constitution but also drew on their broad familiarity with European constitutional law. As with their eastern counterparts, the Egyptian drafters were largely satisfied with declaring Islam to be the “religion of the state” with little elaboration. Shaykh Bakhit, the country’s former mufti, drafted the language, which provoked little controversy.9 Indeed, the only controversy involving religion was occasioned by Shaykh Bakhit’s objection to a clause stating that “the state will protect morals and feelings of religions and creeds”; he complained that this passage risked offending Egypt’s existing religions by spreading legal protections too broadly to sectarian and schismatic groups. The other drafters rejected his argument, motivated not simply by liberal sentiments but likely as well by the desire to avoid giving Great Britain any excuse to intervene in protecting foreigners and minorities.10 Thus the early architects of comprehensive constitutions in the Arab world were largely satisfied with symbolic declarations regarding religion. These provisions provoked at best theoretical debates and had little effect on constitutional and political practice. And even on a symbolic level, the provisions appear fairly modest in retrospect. Two issues that have since emerged as central to debates about Islam and the political order—the source of sovereignty and the relationship between positive and sharia law—were not addressed, nor was this failure deemed particularly noteworthy at the time. Such reticence can be explained by several factors. First, religious institutions (such as sharia courts and institutions of religious learning) at that time tended to focus their attention on maintaining their autonomy rather than establishing hegemony over the political system as a whole.11 Second, most of the constitutions were written in an effort to establish or affirm independence from European rule (and, in some cases, such as Egypt, an effort to end European extraterritoriality), since that rule was seen as non-Islamic and even anti-Islamic. Thus, establishing national sovereignty was hardly seen as inimical to Islamic values. Finally, the constitutions written during the period generally restricted themselves to modest general statements about the political order and specific procedural provisions. The lengthy ideological and programmatic constitutions were a thing of the future.

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Yet as Arab constitutional law continued to develop, and Arab politics grew increasingly ideological, the symbolic provisions related to Islam often grew. Islamic legal principles were often cited in constitutional debates.12 It was no longer enough to refer simply to Islam as the state religion, but lengthy catalogs of principles often grew to include references to Islamic values or heritage. The Saudi Basic Law of 1992 cites Islam and Islamic law in numerous provisions. In some cases—such as in the Libyan and Iraqi constitutions—newer provisions were as vague as the older ones. Occasionally, however, new and more specific elements were added. The Moroccan constitution of 1962 barred amendments diminishing the royal or Muslim nature of the state; the 1970 constitution specifically exempted these matters from parliamentary immunity.13 Algeria invented a Higher Islamic Council in 1996 for its political system, specifically enjoined to exercise ijtihad. And specific steps were taken, especially in the states of the Arabian Peninsula, to mandate Islamic legal norms in specific areas. In the Kuwaiti constitution, for instance, article 18 stipulates that “inheritance is a right governed by the Islamic sharia.” Yemeni constitutions have probably been most ambitious and specific in this regard. The 1970 constitution, for instance, required enforcement of Islamic law in business transactions. The constitution further provided that “in cases heard by the Courts, the provisions of this constitution and of the State’s laws shall be applied. If there is no precedent, the Courts shall pass their judgment in the case they are dealing with in accordance with the general principles of the Islamic sharia.”14 Despite the increased salience of Islamic issues in constitutional debates, the provisions discussed thus far still generally preserved the constitution as the supreme law in the country. There might be symbolic or institutional concessions to Islamic beliefs, practices, and law, but ultimate political authority remains elsewhere: in the constitution, in the people (with popular sovereignty proclaimed in most constitutions), or in the head of state (formally in some royal system and effectively in some republican systems). Yet there is another set of provisions in some Arab constitutional texts that suggests a different relationship between the political order described in the constitution and the legal system enjoined by Islam. Beginning with the Syrian constitution of 1950, some Arab constitutional systems have cited the Islamic sharia as a source—or more ambitiously, the chief source—of law. The 1950 Syrian constitution—the first Arab document to introduce long ideological sections and catalogs of social, economic, and political rights—was only in effect for a few years, and its provision regarding Islamic law had no

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noticeable effect.15 In Kuwait’s 1962 constitution, a similar provision was introduced in which “the Islamic sharia is a primary source of legislation.” Periodic proposals to amend the constitution to make the Islamic sharia the rather than a primary source of legislation have thus far been unsuccessful, though there appears to be considerable popular support for such a change. Similar language has been adopted in other peninsular states (such as the United Arab Emirates and Oman); Saudi Arabia’s 1992 basic law has a much more specific and detailed provision. According to article 48, “The courts will apply the rules of the Islamic sharia in the cases that are brought before them, in accordance with what is indicated in the Book and the Sunna, and statutes decreed by the Ruler which do not contradict the Book or the Sunna.” The effect of such provisions is to imply a very different basis for the legal order. Rather than the constitution sanctioning Islam as an official religion and observance of the Islamic sharia in specific areas, these provisions imply that the sharia itself stands prior to the positive legal order—including, potentially and by implication, the constitution itself. If the sharia is a primary source—or even the primary source—of legislation, then it becomes possible to argue that it forms the fundamental legal framework. Indeed, it is noteworthy in this regard that constitutional texts tend to refer to the sharia as a basis of legislation (tashri‘)—thus extending the sharia’s reach to include all legal enactments, not merely positive laws (legislation would include laws, decrees, administrative regulations, and arguably the constitution itself), rather than referencing it as a basis of laws (qawanin) that would only refer to a specific category of legislation (laws passed by parliament or their equivalent). It is therefore not surprising that these constitutional provisions have emboldened those who seek the Islamicization of the political order. Such language makes it possible to challenge legislation that does not seem to be in conformity with Islamic sharia principles on constitutional grounds. In short, it makes it possible—through constitutional jurisprudence—to turn the principles of the Islamic sharia into a supraconstitutional order. Making such a challenge successfully is not easy, however, because of more prosaic elements of Arab constitutional orders. In general, constitutional claims are exceedingly difficult to make in Arab politics. While the principle of judicial review of the constitutionality of legislation is firmly accepted in most Arab political systems, a host of procedural, legal, and political obstacles obstruct its exercise in most countries.16 The most significant exception is Egypt, where a strong

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constitutional court has emerged that has been willing, with startling boldness, to strike down legislation as unconstitutional—though even that exceptional court seems to have been tamed in recent years.

Th e E g yptian Ex per i ment wi th th e S h a r ia as T H E S ourc e of L aw In 1971, Egypt received its “permanent” constitution to replace the avowedly temporary documents of the Nasser years. That constitution’s second article went beyond mere declaration of Islam as the religion of the state; such a formula was deemed insufficient. It more ambitiously described the principles of the Islamic sharia as “a principle source of legislation.” Arguments in favor of still-stronger provisions were rejected for the moment.17 Yet the proponents of a stronger article 2 won a delayed victory as the constitution as amended nine years later to make the principles of the Islamic sharia the principal source of legislation. As amended, article 2 of the Egyptian constitution now proclaims, “Islam is the religion of the state, Arabic is its official language and the principles of the Islamic sharia are the principal source of legislation.” Thus Egypt has joined other Arab and Islamic countries in providing explicitly for a link between the Islamic sharia and legislation. Adoption of the new formula set off a debate in which even advocates of a greater role for Islam in political life found themselves divided. Some jurists charged that the change was unnecessary because as long as the Constitution provided that Islam is the religion of the state, then the state is constitutionally Islamic. Thus, they argued, all acts of government and public powers were already required to be in line with the sharia. A further constitutional provision on Islamic sharia principles, whether as a source or principal source of legislation, did not really add much to this understanding and was occasioned by the desire to appeal to public opinion rather than effect real change. The opposing view, however, was that elevating sharia principles to become the principal source, not merely a main source, of legislation carried significant meanings and implications. Before the amendment, Islamic sharia principles were seen as merely one of several unspecified main sources of legislation, with the more ambitious wording, beside which other main sources did exist. Other subsidiary sources of legislation would remain valid, but they would be accorded lower importance in the amended article 2. This debate might have attracted little attention—and the skeptics about the effectiveness of amending the text might have been

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vindicated—had it not been for a more subtle and little noticed change in Egypt’s constitutional order. In 1969, President Nasser had moved against the country’s judiciary and dismissed a large number of sitting judges. He also constructed by decree a new “Supreme Court” to sit at the apex of Egypt’s judicial structure in a thinly disguised bid to establish firm presidential control over the judiciary. That body was renamed the “Supreme Constitutional Court” in the 1971 constitution, but matters of its organization were left to ordinary legislation. Not until 1979 was that legislation enacted, but when it was, it created a potentially autonomous body—while the president retains some significant appointment authority over the chief justice, the Court began to strike out in a fairly independent direction in the 1990s. In a series of decisions, the Court has pursued a consistent interpretation of the revised article.18 While not robbing the provision of all of its content, the Court has not used it to enforce real limits on Egyptian legislation and the legal order. In effect, the Islamic sharia has increased in symbolic importance, but political authorities have found few obstacles placed in their path by the revised article. Indeed, the Court has actually authorized the executive and the parliament to develop binding interpretations of Islamic law. Granting such authority makes it very unlikely that article 2 can serve as the basis for an ambitious Islamic constitutionalism in Egypt. While the amended text is open to numerous interpretations, the decisions of the Court endorse the argument that it prohibits any legislation that explicit contravenes the Islamic sharia. This reading of the revised text is hardly inevitable, and it seems to hand the advocates of the application of the sharia a tremendous victory. Yet the decisions of the Court have had the precise opposite effect; as of this writing, only one law has been struck down primarily on the basis of article 2. Why has the strengthened version of article 2, interpreted by the Court to bar legislation contravening the sharia, had so little effect? First, in an early case, the Court ruled that the revised article barred legislation contravening the sharia only after the date of the amendment. In other words, the text revised in 1980 contained instructions to the legislature to base its subsequent work on the principles of the Islamic sharia. Preexisting legislation should be reviewed to ensure its compatibility with the sharia and amended if necessary, but the amendment did not immediately require the Court to invalidate such laws. More important in the long run, the Court has endorsed a modernist view of the sharia that distinguishes between two kinds of

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sharia-based rules: those unambiguously established both in their authenticity and their meaning, and those based on more malleable applications of sharia-based principles. Legislation incompatible with an unalterable principle is invalid. On the other hand, the executive and legislative authorities are given wide latitude in cases where the sharia provides unclear or multiple answers. The Court has articulated this principle on numerous occasions. In 1996, for instance, a father brought a case to the Court involving an administrative decree issued by the Minister of Education barring female students from wearing the niqab (a veil covering the full face in contradistinction to the permitted hijab, a veil covering only the hair) in state schools. The proponents of a sharia-based constitutional jurisprudence finally seemed to have a strong case. The challengers could cite not only article 2, but also personal rights provisions of the constitution. The father claimed that the minister’s decree violated both the Islamic sharia and the rights of a liberal provenance. The Court rejected the claim, however, laying out once again a view that grants executive and legislative authorities tremendous latitude—it insisted that only sharia principles that were absolutely authentic and unambiguous could be used to strike down legislation. In all other matters, authorities were free to adopt any interpretation of the sharia (or develop their own) based on their discernment of the public interest.19 An attempt to use article 2 as the basis for the application of a shariabased law must now encounter a formidable barrier in the Court. Its view is not novel. Others routinely distinguished between unalterable sources of law (the Koran and the Sunna), on the one hand, and those based on human judgment, on the other. The Court’s view invalidates any sharia provision based on the latter—and thus much of the body of existing fiqh—as a basis for a constitutional claim. Indeed, it might be possible to escape some clear statements from the Koran and the Sunna if it can be argued that they are obviously of a particular and time-bound rather than general nature (while the Court has never advanced such an argument, some Islamists actually have). It should be no surprise, therefore, that the Court has only been able to rely primarily on article 2 to strike down legislation only once. (The decision came in a difficult and controversial ruling on rights to housing after a divorce in which the Court found that the personal status law had infringed on the husband’s rights under the sharia. The case took the Court an uncharacteristically long period—ten years—to resolve.20) Most remarkable, perhaps, the judgment of whether a rule is a permanent and unalterable principle rests not with scholars of the sharia

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but with secularly trained judges. The piety of individual members of the Court, even if beyond question, would not compensate for their lack of training in the minds of many sharia advocates. Granting such deference to the existing authorities translates into the Islamic sharia having only the vaguest limit on state authority.

I r aq Never has a constitution been so bound up with sovereignty as in Iraq after the American invasion of 2003. The connection between a constitution and sovereignty was not clear at the beginning—it took months for the Americans to announce any clear benchmark for ending their direct administration of the country. But in July 2003, the United States finally declared that full sovereignty would be restored with the promulgation of a democratic constitution and the subsequent holding of national elections. A prolonged political contest resulted, however, in a two-stage constitutional process. In the first stage, a Transitional Administrative Law (TAL), written in 2004 in secret by a small group of American and Iraqi officials, served as an interim constitution. The TAL also established the framework for the second stage of constitution writing, the composition and promulgation of Iraq’s permanent constitution in 2005. The drafters of both the TAL and the permanent constitution faced few issues as contentious as the role of Islam in the new Iraqi political system. Before the American invasion, Iraq had stood aloof from the regional trend of proclaiming general obeisance to the Islamic sharia in its constitution, although the interim constitution of 1964 did describe Islam as “the basic foundation” of the constitution. But Islamist forces of various stripes were emerging as among the most powerful and active in postinvasion politics. While much of the TAL was drafted in a very closed process, the debate over its provisions for Islamic law spilled out into public view. Some of the more enthusiastic advocates of the Islamic sharia wished to add a clause along the lines of the Egyptian constitution proclaiming the principles of the Islamic sharia “the principal source of legislation.” More secular drafters were willing to name the sharia as a source of law, but they balked at making it the only or the principal source. The final, fairly tortured compromise read, “Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts those fixed principles of Islam that are the subject of consensus, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional

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period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.” What sharia advocates lost (Islam was mentioned but the sharia was not, and Islam was only a source of law) was compensated for by the bar against any law that contradicted the fixed principles of Islam. But those fixed principles were not specified, nor was any structure brought into being to determine them. The reference to “consensus” presumably indicated that religious scholars might be consulted—the consensus of scholars is a major source of law for Sunni Muslims (and a secondary one for the Shi‘a)—though the TAL provided no mechanism by which scholarly consensus could be authoritatively expressed. Elections for National Assembly—a body charged with writing the permanent constitution—were held under the TAL provisions on January 30, 2005, and immediately afterward the debate over the role for the Islamic sharia began again. This time, it involved not simply various Iraq parties but also heavy international pressure, chiefly coming from the United States, which—despite having ended its direct administration—played an extensive and quite public role during the constitutional drafting process. Remarkably, the debate over sharia in Iraq was at best fairly hazy on who is authorized to speak for the sharia and how their assessments are to be applied. The various actors did not seem to realize the lesson of decades of experimentation—namely, that the Islamic sharia is not an easily identifiable set of rules that can be mechanically applied, but a long and quite varied intellectual tradition. The final wording of the second article of the Iraqi constitution follows a path similar to that of the TAL, but with some changes in wording: Islam is the official religion of the State and is a foundation source of legislation. No law may be enacted that contradicts the fixed elements of the rulings of Islam. No law may be enacted that contradicts the principles of democracy. No law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution. This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.

It was fairly common during the constitutional debate to refer to the inclusion of references to both Islam and democracy as

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“contradictory.” That characterization probably goes too far, but there are some tensions in the final language that reflect uneasy compromises—and not just between Islam and democracy. The more subtle tension reflects the contest between those who wished to make reference to the “fixed elements” (thawabit)—which, like the principles mentioned by the Egyptian Supreme Constitutional Court, would presumably be very general and fairly few in number, given the diversity of the Islamic heritage—and those who favored protecting “rulings” (ahkam), a far more specific and clearly legal, not only religious, term with potentially expansive implications. The final language includes both. It is not clear precisely what the effect of combining these various terms will be. In the short term, the article is likely to have little practical impact. The wording suggests that the provision might only apply to legislation passed after the constitution is adopted (although the opposite interpretation is not implausible, either) so that the existing Iraqi legal order is likely to remain intact. The impact on future legislation is completely dependent on who has authority to interpret the article. The primary burden, at least in theory, would seem to fall on the parliament: It is to use Islam as a source for legislation and take care to avoid violating the fixed rulings of the religion. And the parliament is quite likely to be dominated by Islamist parties and influenced informally by leading Shi‘ite clerics. At least at present, such clerics give fairly few specific instructions, but it is clear that when they do so, any government would have difficulty ignoring them (as Paul Bremer, the American administrator of Iraq immediately after the invasion, discovered). A Supreme Federal Court created to adjudicate constitutional disputes would probably be called on to play a major interpretive role as well, and the composition of that body is therefore critical for the meaning of the article in the long term. But the composition of that Court is left to legislation to determine.

C o nclusi on Attempts to build constitutional orders that incorporate Islam have realized symbolic triumphs but had little practical effect. The reason is not because of any contradiction between Islamic and constitutionalist approaches to law and politics, but because of an inattention to procedural and practical details. The centerpiece of most Western constitutional experiments has been documents that emphasize procedural aspects of constitutionalism. Even substantive limitations on state authority are often expressed in procedural terms (the American

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constitution guarantees freedom of the press, for instance, by barring Congress from passing a law abridging it). Islamic constitutionalists portray the Islamic sharia less as a procedural than a substantive limitation on the authority of rulers. The weakness of procedural aspects in Islamic legal thought has not gone unnoticed, and some Islamic intellectuals have attempted to address it by elevating the importance of ideas such as consultation. Yet when putting these ideas into practice, the constitutional experiments in Egypt and Iraq have encountered the same problem: in both cases, attempts to use the Islamic sharia as the basis of a more authentic constitutionalism resulted in the imposition of few procedural restraints on rulers. A Western constitutionalist might suggest that combining the authority to rule with the authority to interpret the sharia is the problem. For a system to be truly constitutional—for rulers to be truly bound by a higher law—the two functions must be separated. Many Muslim thinkers have shied away from this conclusion for many reasons. Some of them are suspicious of attempts to regulate political authority by establishing institutionalized rivalries; such efforts would seem to promote disunity. Others, especially Sunni thinkers, have rejected the idea that any human has the authority to issue authoritative interpretations of Islamic law. If rulers need an authoritative interpretation they are free to adopt one for the moment, but they cannot impose their judgment on any scholar. Authorizing an individual or body to issue binding judgments risks freezing Islamic law and enshrining the views of fallible individuals as definitive. The Arab experience does not show that Islamic constitutionalism must fail. But it does raise the importance of the skeptical questions suggested by Western constitutionalist practice: How can one apply divinely inspired law without giving authority to human beings? And how can human beings be held accountable to divine standards? The answers to these questions must be given institutional expression. Western constitutionalism has concentrated much effort on analogous procedural questions. In short, Islamic constitutionalists have yet to succeed not because they have borrowed too much from Western constitutionalism, but because they have borrowed too little.

Notes 1. The mixture of such functions in a single body was quite common in Europe at the time, of course, but those states that were devising written constitutions did so partly to avoid such a practice.

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2. For a general articulation of the ideology behind the constitution by one of its primary advocates, see the writings of Khayr al-Din al-Tunisi. His major treatise on the subject has been translated into English in L. Carl Brown, The Surest Path: The Political Treatise of a Nineteenth-Century Muslim Statesman, a Translation of the Introduction to the Surest Path to Knowledge Concerning the Condition of Countries by Khayr al-Din al-Tunisi, Harvard Middle Eastern Monographs 16 (Cambridge, MA: Harvard University Center for Middle Eastern Studies, 1967). 3. For instance, the addition of an upper house to the Egyptian parliament in 1979 was given some Islamic coloration by designating it the majlis al-shura, or Consultative Council. The Saudi Basic Law of 1992 uses such vocabulary more extensively. 4. The text of the document can be found in Al-dasatir al-misriyya 1805– 1971: nusus wa-tahlil [The Egyptian Constitutions 1805–1971: Texts and Analysis] (Cairo: Markaz al-tanzim wa-l-mikrufilm, 1976). See also Juan R. I. Cole, Colonialism and Revolution in the Middle East: Social and Cultural Origins of Egypt’s ’Urabi Movement (Princeton, NJ: Princeton University Press, 1993), 105; and Alexander Scholch, Egypt for the Egyptians! The Sociopolitical Crisis in Egypt 1878–1882 (London: Ithaca Press, 1981), 213. 5. Eugene Rogan mentions a 1920 “Constitution of the Arab Government of Moab” in Frontiers of the State in the Late Ottoman Empire (Cambridge: Cambridge University Press, 1999), 251. The constitutional efforts of the Tripoli Republic, partly negotiated with Italy, are treated in Karim Mezran, “Constitutionalism in Libya,” in Islam and Constitutionalism, ed. Sohail Hashmi and Houchang Chehabi (Place: Publisher, forthcoming). 6. The most comprehensive source for constitutional documents can be found at http://www.servat.unibe.ch/law/icl/index.html. 7. Scholarly writings on the Ottoman constitution of 1876 are reasonably extensive, but because of the declining interest among scholars in legal and political history, the most comprehensive works tend to be older. The account here depends primarily on such older works, including Robert Devereux, The First Ottoman Constitutional Period: A Study of the Midhat Constitution and Parliament (Baltimore: Johns Hopkins Press, 1963); Roderic H. Davison, “The Advent of the Principle of Representation in the Government of the Ottoman Empire,” in Essays in Ottoman and Turkish History, 1774–1923: The Impact of the West (Austin: University of Texas Press, 1990); Roderic H. Davison, Reform in the Ottoman Empire 1856–1876 (Princeton, NJ: Princeton University Press, 1963); and Stanford J. Shaw and Ezel Kural Shaw, History of the Ottoman Empire and Modern Turkey, vol. 2, Reform, Revolution, and Republic: The Rise of Modern Turkey, 1808–1975 (Cambridge: Cambridge University Press, 1977). See also Bernard Lewis, The Emergence of Modern Turkey (Oxford: Oxford University Press, 1968); and Nader Sohrabi,

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8.

9.

10. 11. 12.

13. 14.

15.

16.

Nathan J. Brown “Historicizing Revolution: Constitutional Revolutions in the Ottoman Empire, Iran, and Russia, 1905–1908,” American Journal of Sociology 100 (May 6, 1995): 1383–1447. Not only did the Ottoman sultan promulgate and suspend the constitution at will, he also made clear that he did not regard his authority as bound by the constitution. For instance, he claimed the right to issue legislation completely outside of the constitutional framework, insisting that the constitutional procedures governed only legislation that went through the parliament. Few current rulers would be so bold in doctrine, but many executives in the Arab world have retained constitutional mechanisms for bypassing parliamentary and other institutions. The minutes of the drafting committee have been preserved, allowing us some insight into the intentions of the drafters. See the discussion of article 149 in Majlis al-Shuyukh, Al-dustur: ta’liqat ’ala mawadihi bil-a’mal al-tahdiriyya wa-l-munaqashat al-barlamaniyya, part 3 (Cairo: Matba’at Misr, 1940). Ibid., part 1, discussion of article 13. See Nathan J. Brown, “Shari’a and State in the Modern Middle East,” International Journal of Middle East Studies 29 (August 1997). In the debate over the adoption of the first Moroccan constitution, for instance, the opposition was able to cite the opinion of a leading Islamic scholar criticizing the document because it assigned a greater right to legislation to the state than should exist in an Islamic system. See Charles F. Gallagher, “Toward Constitutional Government in Morocco: A Referendum Endorses the Constitution,” American Universities Field Staff, North Africa Series 9, no. 1 (Morocco, 1963), 7. For a very different example, see the discussion of women’s suffrage in “Women in the Constitutional Committee,” Ruz al-yusuf, October 19, 1953, 13. At that time, a committee drafting a constitution for Egypt was considering the right of women to vote. Some committee members unsuccessfully cited Islamic grounds for opposing this right. Ahmad Majid Binjalun, Al-dustur al-maghrabi: mabadi’ihi wa ahkamihi (Casablanca: Dar al-Kitab, 1977), 151–52. Article 153. For the text, see Albert P. Blausetien and Gisbert H. Flanz, eds., Constitutions of the World (Dobbs Ferry, NY: Oceana Publications, updated periodically). On the Syrian constitution of 1950, including article 3, which described the Islamic sharia as the chief source of legislation, see Majid Khadduri, “Constitutional Development in Syria,” Middle East Journal 5, no. 2 (Spring 1951), 137–160. Ironically, Syria later made Arab constitutional history when a constitution was proposed that removed the requirement that the head of state be a Muslim. On this point more generally, see Nathan J. Brown, “Judicial Review in the Arab World,” Journal of Democracy 9 (October 4, 1998), 85–99.

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17. See Jamal al-’Utayfi, Ara’fi al-shari’a wa-fi al-hurriyya [Opinions on the Sharia and Freedom] (Cairo: Al-hay’a al-misriyya al-’amma li-l-kitab, 1980); Joseph P. O’Kane, “Islam in the New Egyptian Constitution: Some Discussions in al-Ahram,” Middle East Journal 26, no. 2 (1972): 137–48; and Minutes of the Preparatory Committee for Drafting the Constitution [for the Arab Republic of Egypt, 1971], Library of the Majlis al-Sha’b, Cairo. 18. See Clark B. Lombardi and Nathan J. Brown, “Do Constitutions Requiring Adherence to Sharia Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,” American University International Law Review 21, no. 3 (2006), 379–436. 19. The ruling is translated in Nathan J. Brown and Clark B. Lombardi, “The Supreme Constitutional Court of Egypt on Islamic Law, Veiling, and Civil Rights: An Annotated Translation of Supreme Constitutional Court No. 8 of Judicial Year 17 (May 18, 1996),” American University International Law Review 23, no. 3 (2006), 437–60. 20. Case No. 5 of Judicial Year 8 (submitted in 1986; decided in 1996).

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Chapter 11

Reli gion and State in the State of Israel David H. Goldberg and Bernard Reich

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homas Jefferson’s “wall of separation between church and state” is difficult to find in the State of Israel. Israel is different in many respects from every other country in the modern world in its concept of, and application of, the separation of church and state. There is no established state religion in the Jewish state, yet Judaism and Jewish religious political parties, as well as various other things “Jewish,” play significant roles in the daily functioning of Israel and its institutions and policies.

I ntro duc ti on Israel is self-designed as a Jewish state. But Israel is also a state and society constructed on modern democratic principles. Israel has no official religion and there is constitutionally guaranteed freedom of religious practice and access to religious institutions for all faith communities. However, unlike many other democratic states that ostensibly impose a Jeffersonian separation between religion and state, religious issues (narrowly and broadly defined) permeate all aspects of life in Israel. The early Zionist settlers were generally secular in religious orientation and, indeed, the political Zionist enterprise of establishing a modern sovereign Jewish state in Eretz Israel (the Land of Israel)

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faced considerable opposition from the established indigenous religious Jewish community on theological grounds. The overwhelmingly Orthodox Jewish community resident in Israel in the nineteenth century broadly believed that the return of the Jews to the Holy Land would be accomplished by God, not by a group of essentially secular, socialist (albeit “Jewish”) Zionists. Nevertheless, the modern Jewish nation state called “Israel,” created by the Zionists was replete with symbols directly borrowed from Jewish religious tradition and Jewish history: the Star of David, the menorah on the state symbol, respect for central aspects of Jewish law (halacha), the Sabbath and kashrut (Jewish dietary law), the names applied to national institutions, and indeed, the conscious decision to transform the ancient language of the Torah and Jewish religion into the official language and the lingua franca of a modern nation state. The Hebrew language today is a rich and growing language dealing with all aspects of modern life in Israel, in addition to being the language of Jewish prayer and religious observance.

Universalism within Particul ar ism Despite its Jewish religious roots and self-identification as a Jewish state, Israel guarantees all of its citizens—in law and in practice—freedom of religion and conscience and considerable autonomy utilizing the millet system inherited from the Ottoman Empire (and modified by Great Britain under the League of Nations Mandate for Palestine). The Israeli Declaration of Independence (May 14, 1948) addresses explicitly and at length Israel’s commitment to respect and encourages religious pluralism and tolerance: [Israel] will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice, and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex; it will guarantee freedom of religion, conscience, language, education, and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

The religious authorities of each non-Jewish faith community (Christian, Muslim, Druze, and others) exercise jurisdiction in all matters involving personal status and family law (i.e., marriage, divorce, alimony, and inheritance) and apply religious codes and principles in their own courts.

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Co ns titutional Di lemma Israel is today a country without a formal written constitution. It depends on a series of Basic Laws that are ultimately intended to form a constitution. The Constituent Assembly in February 1949 enacted a Transitional Law (referred to as a “Small Constitution”) that became the basis of constitutional activity in the state. It was anticipated that the document would be replaced by a more extensive one. The first Knesset (parliament) devoted substantial time to a discussion of the constitutional issue. Numerous matters were considered and discussed, including the concern about the relationship between the state and religion and the related matter of somehow ensuring that the ideals and precepts of Judaism would be incorporated into the proposed constitution of the Jewish state. The Constituent Assembly could not agree on a comprehensive written constitutional document, mostly because of concerns that a constitution could unleash a divisive conflict between religious and state authorities. How would one protect the rights of the various non-Jewish communities and the rights of those Jews who were “secular” (i.e., non-Orthodox) in their approach to religious observance while still permitting those of an Orthodox Jewish background to pursue their own approach to religious life? After a lengthy discussion, the Knesset decided, on June 13, 1950, that in the interim period (until they were ready for the final written document) there would not be a formal and comprehensive document. There was accord on several related matters, including a state based on “Jewish” principles and concepts and, significantly, the “ingathering of the exiles”—that is, the return of the Jewish people scattered throughout the world in the Diaspora to the historic Jewish homeland—the Land of Israel.

Law o f Retur n Zionism (Jewish nationalism) as a political solution to anti-Semitism was enshrined in Israel’s Declaration of Independence: The catastrophe which recently befell the Jewish people—the massacre of millions of Jews in Europe—was another clear demonstration of the urgency of solving the problem of its homelessness by reestablishing in Israel the Jewish State, which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the community of nations.

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Survivors of the Nazi Holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Israel, undaunted by difficulties, restrictions and dangers, and they never ceased to assert their right to a life of dignity, freedom, and honest toil in their national homeland. That led to the practical problem of what might be done about the remnants of the Jewish communities in Europe after the Holocaust (in addition to entire Jewish communities forced from their homes and properties in Arab countries by anti-Zionist rioting around the time of Israel’s founding).1 Israel’s response was the Law of Return—a Jewish solution to a Jewish problem. Those who were Jews would be given special status should they choose to immigrate to the Jewish state. Identifying who was a Jew became another element of the situation. Traditional Jewish law was applied by government ministers and ministries, placing the government as an agent of implementing halacha. The Law of Return 5710–1950, adopted by the First Knesset on July 5, 1950, declared, 1. Every Jew has the right to come to this country as an oleh (immigrant). 2. (a) Aliya (Immigration) shall be by oleh’s visa. (b) An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration is satisfied that the applicant (1) is engaged in an activity directed against the Jewish people; or (2) is likely to endanger public health or the security of the State. 3. (a) A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate.

The Law of Return (Amendment 5714–1954) adopted by the Second Knesset on August 23, 1954, transferred responsibility for the implementation of the Law of Return from the Minister of Immigration to the Minister of the Interior. The Law of Return (Amendment 5730–1970) adopted by the Seventh Knesset on March 10, 1970, in addressing the “rights of members of family,” entrenched the Orthodox principles of matrilineal descent and conversion through the Orthodox stream as the exclusive bases for defining a “Jew”: 4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712–1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew, and the

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spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion . . . . 4B. For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. 5. Regulations for the purposes of sections 4A and 4B require the approval of the Constitution, Legislation, and Juridical Committee of the Knesset.

The Population Registry Law 5725–1965 was simultaneously amended by the Seventh Knesset on March 10, 1970 to address the “definition” of immigrants (olim) under the amended Law of Return: 3A. (a) A person shall not be registered as a Jew by ethnic affiliation or religion if a notification under this Law or another entry in the Registry or a public document indicates that he is not a Jew. . . . (b) For the purposes of this Law and of any registration or document thereunder, “Jew” has the same meaning as in section 4B of the Law of Return, 5710–1950.

The definition of a “Jew” for purposes of immigration to Israel under the Law of Return, as well as for marriage, has stood at the center of many of the debates over religion and state in Israel, as has the dominance of the Orthodox stream of Judaism over such issues—and over most other aspects of Israeli culture and society.

D ebates over Reli g i on and the State Throughout the development of modern political Zionism, during the prestate period when the yishuv governed in Palestine, and in the postindependence period there were continued discussions and debates about the relationship of Israeli democracy and Jewish religious tenets and perspectives. There were significant rifts on politics and ideology and the role of religion in the state. Socialist-oriented Zionists generally envisioned a socialist and democratic state with a flourishing secular Jewish culture while religious institutions and religious concepts and tenets would be fully protected by law. Religious Zionists thought about a more theocratic state in the land promised by God to the Jewish people (and recorded in the Bible and other Jewish texts and related in Jewish traditions) where Jews could live full religious lives guided by Jewish religious leaders with substantial power to ensure this approach.

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“Who Is a Jew?” The religion-state debate in Israel rotates on the issue of who among those seeking access to the country under the Law of Return meets the criteria to be defined as a “Jew.” The issue is actually multilayered. There is the issue of the state serving as an agent of determining and implementing questions of halacha. There is the extent to which the government ministries responsible for such matters—immigration, interior, and religious affairs—were the private reserves of the religious parties for most of Israel’s first fifty years, thereby ensuring an Orthodox application of the Law of Return. And, finally, there is the way in which the force of events over the past one and onehalf decades—especially Israel’s absorption under the Law of Return of more than one million immigrants from the former Soviet Union and Eastern Europe and from Ethiopia—have tested the limits of the existing definition, in law and in practice, of “who is a Jew.” Israel has had to come to terms with the reality of hundreds of thousands of new immigrants who, upon closer examination, did not meet the definition of a “Jew” according to the Orthodox interpretation of halacha. In 1988, Ya’acov Ne’eman, then Benjamin Netanyahu’s finance minister, was appointed to head a committee to address this dilemma. One result of the deliberations of the Ne’eman committee was the establishment of “conversion institutes” in which new immigrants seeking conversion to Judaism would receive training from rabbis and teachers representing the three major streams of Judaism (Orthodoxy, Conservatism, and Progressive/Reform), although the final conversion would still be according to Orthodox standards. While there remains considerable Orthodox resistance to non-Orthodox or civil marriages, the “conversion institutes” experiment represents one small effort on the part of representative segments of Israeli society to reconcile the religious debate. Status Quo Agreement Israel’s religious structure stems partly from a controversial compromise to obviate clashes that took the form of a so-called status quo agreement worked out by Israel’s first prime minister David Ben-Gurion with Orthodox and some ultra-Orthodox religious leaders and religious parties on the eve of Israel’s independence. The agreement proposed to retain the situation as it had existed upon independence, whereby individuals would be free to pursue their religious practices in private as they saw fit, while in the public domain there would be no

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changes in the prevailing situation. This arrangement thus continued the Ottoman millet system, which allowed each religious community a high degree of local autonomy. The status quo agreement allowed the Orthodox community to maintain and expand its efforts to assert control over various aspects of life among Jewish Israelis, periodically engendering public conflict and discussion. Military Deferments A particularly controversial dimension of the status quo agreement related to the granting of deferments from service in the Israel Defense Forces (IDF) for men studying in ultra-Orthodox rabbinical institutions. To the minds of most observers, this was an obvious example of systemic inequality. In December 1998, Israel’s Supreme Court ruled that the agreement between Ben-Gurion and the Orthodox community to grant military exemptions to yeshiva students was unconstitutional; the court gave the Knesset one year in which to formulate new legislation effecting such deferrals. During the Fourteenth Knesset (1996–99), Israeli Labor Party leader Ehud Barak pledged to introduce legislation that would effectively end most exemptions from military duty on religious grounds. The challenge of actualizing this promise was a key element of Barak’s coalition negotiations with the religious parties after his 1999 election. In the end, Barak was forced to back down. In mid-December 2005, legislation was adopted to introduce a form of “national service” for those segments of Israeli society, including Orthodox rabbinical students, who felt unable or unwilling to serve in military units on religious or ethical grounds. On May 11, 2006, the Supreme Court determined that the legislation (known as the Tal Law) permitting most exemptions from military service for what is now an estimated 50,000 haredi rabbinical students contravenes the human dignity of those who serve in the Israeli military. But the court determined that the law should be left untouched for an additional eighteen months in order to examine if its application would improve. On July 18, 2007, the Knesset decided on an extension of the Tal Law for another five years until 2012. This effectively left in abeyance efforts to breach the large societal chasm caused by religious military exemptions. Hesder Yeshivot A creation of Israel’s dati (national religious) community, the Hesder yeshiva system effectively bridges the societal chasm by combining

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Orthodox rabbinical studies with military service in the IDF. Hesder service normally lasts five years, during which time participants are officially soldiers in the IDF. Through those five years, sixteen months are dedicated to actual military service, comprising both training and active duty. Almost all Hesder yeshiva students serve in the army as combat soldiers, with a growing number reaching officer rank. The first Hesder yeshiva was founded in 1953; today there are forty-one spread throughout Israel. In 1991, the Hesder yeshivot system was awarded the Israel Prize for its exceptional contribution to the nation.

Th e R el igio us Poli ti c al Parti es The religious-secular debate in Israel has increasingly been played out in the electoral process and expressed in the formation and dissolution of political parties and electoral coalitions. Only in 1999, in the election to the Fifteenth Knesset, was there a secular party that explicitly targeted only the secular factor in the debate. And that party, Shinui, disappeared in the 2006 election to the Seventeenth Knesset, largely because the shrillness of its attack on the haredi parties was considered too extreme and too divisive by an Israeli electorate seeking points of national consensus in the aftermath of the traumatic 2005 disengagement of Israel from Gaza. Parties with a religious orientation have always played a major role in the electoral process and, hence, in Israel’s political life. Many of these religious political parties arose as a direct response to the emergence of political Zionism at the end of the nineteenth century, and a point of difference among them has been their perspectives on Zionism. In the ultra-Orthodox camp were those parties who denied the basic validity of the Zionist idea on the grounds that it contradicted the traditional conception of divine, Messianic redemption of the Jewish people. Nevertheless, some who opposed Zionism as a secular nationalism encouraged Jews to settle in Israel as a means of fulfilling a religious obligation for Jews to “return to” and reside in the Holy Land. As historical developments2 made the idea of a modern Jewish state more logical, more of the ultra-Orthodox who continued to oppose Zionism began to recognize the importance of both Jewish settlement in Israel and of the State of Israel itself to the survival of the Jewish people. The religious Zionists took an alternative approach. Guided by the religious-nationalist philosophy of Rabbi Avraham Yitzhak Kook (the first Chief Ashkenazi Rabbi of Palestine), the religious Zionists tended

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to see Zionism as a solution to the problems faced by Jews in the Diaspora and the first stage in the messianic process. Thus Israel’s formation was, in their view, the beginning of redemption, and the process became religiously significant. The above approach was reinforced by Israel’s victory in the 1967 Six Day War and spawned movements such as Gush Emunim (Bloc of the Faithful), which (under the spiritual guidance of Rabbi Zvi Yehuda Kook, who modified his father’s philosophy) linked Israel’s military accomplishments with both religious concepts and Zionist ideals. During the first four decades of Israel’s statehood, the religious political scene was dominated by two political parties: Miflaga Datit Leumit (MAFDAL, the National Religious Party, or NRP) and Agudat Yisrael (or Agudat Israel, Association of Israel). Their centrality has been overtaken in recent years by a relative political newcomer, Sephardi Torah Guardians (SHAS). Although the religious parties drew support from parallel constituencies, only once, in the election to the First Knesset in 1949, did they run as a single bloc (the United Religious Front), which won sixteen seats. In contrast to the ultra-Orthodox Agudat Israel, the NRP has participated within the mainstream of Jewish life and the activities of the state since Israel’s independence. The NRP was founded in 1956 as a religious party seeking to combine religious concerns and a moderate socialist orientation in economic matters within a Zionist framework. The NRP’s origins lie in the prestate period. Its founders did not see a contradiction between Judaism and Zionism. After independence, the NRP became a significant partner in Israel’s governments, securing concessions on religious matters in exchange for support on matters of greater importance to the government, such as foreign and defense issues. Consequently, it wielded substantial political power. This power, combined with the pragmatism of many of its political leaders, made the NRP a natural partner for virtually every Israeli coalition government until the 1990s, in exchange for NRP control of such influential domestic affairs portfolios as the interior ministry, education, culture, and religious affairs. However, the party’s political options narrowed by the late 1980s as it increasingly adopted a hardline nationalist stance in support of its constituency among the Jewish settlers in the territories occupied since the 1967 Six Day War. Agudat Israel (Aguda) focuses its attention on the religious nature of the Jewish state and seeks to have Israel function in accordance with the principle of the Torah. It is a religiously oriented political party representing the interests of a section of Orthodox Jewry living both within and outside the Jewish state. Established in 1912 in Kattowitz

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(Katowice), Poland, Aguda was to be a Torah movement directed by Moetzet Gedolei Hatorah (Council of Torah Sages), a group of rabbinical scholars who represent the various factions of the Aguda movement and are chosen for their scholarly merit and prestige in the realm of Orthodox Jewry. Moetzet Gedolei Hatorah continues to be the supreme decision-making body for Aguda adherents and its decisions are sovereign in all questions affecting the membership, including religious and political matters such as joining or remaining in a government coalition. Even though Aguda initially opposed Zionism as religiously unacceptable, in the 1930s and 1940s it cooperated with the Jewish Agency and other bodies of the yishuv in several clearly and specifically defined areas based on pragmatic considerations relating to the need to try to save the persecuted Jews of Europe. Ultimately, Aguda gave partial backing to the Zionist endeavor when it supported the establishment of Israel and was represented in Israel’s first cabinet. The decision to move into the mainstream of Israeli politics led to a split within Aguda, with its more conservative elements rallying around the Satmar Rebbe who opposed Zionism and formed the splinter Naturei Karta. Aguda did not participate in any Israeli government from 1952 to 1977. During that period it neither displayed overt hostility to Israel nor consistently opposed the state, though it generally did not concur with the government. The Aguda supports the state and participates in its institutions without necessarily accepting all of its policies. It does not link Israel with the biblical promise of redemption. Rather, it supports Israel because of a pragmatic perspective that sees the state as vitally important to the survival of the Jewish people because of worldwide conditions. Thus it respects the role performed by the IDF in securing the defense of the Jewish state and the survival of the Jewish people, even as it insists that men studying in Orthodox yeshivot must be exempted from military service, lest their religious values and sensitivities be tainted by coming in contact with the IDF’s secular practices. At the same time, Jewish immigration to Israel (aliya) must be encouraged for religious and practical reasons, though no “holy” attributes are assigned to the state. Throughout its political involvement, Aguda has been motivated by its desire to ensure that no legislation would harm Orthodox interests and that its religious and educational institutions would receive maximum support from the government. It has sought to secure expansion of Torah institutions and Jewish law within the political system and has focused its attention on such issues as financial support for various religious institutions, education, and schools. Also, it has

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worked on extending the religious perspective into essentially secular realms such as military service for females and the question of “who is a Jew,” which gets to the core of the Orthodox viewpoint and perspective. Furthermore, since the 1980s, Aguda has become strident in its support for the Jewish settlers in the territories occupied in the 1967 war and in opposition to territorial concessions to the Palestinians. To achieve its goals, the Aguda has been prepared to support governing coalitions and to have members of the Knesset (MKs) serve as deputy ministers, despite often uneasy alliances.3 The NRP and Aguda each have experienced internal divisions that have become pronounced in recent years. Numerous factions, each with its own leadership and agenda, compete to secure loyalty, votes, programs, and political patronage. In the 1981 election to the Tenth Knesset, the issue of ethnic representation in Israeli politics led to the creation of Tenuah LeMassoret Yisrael (Movement for Jewish Tradition, or TAMI), an offshoot of the NRP that was formed as a North African–oriented religious political party. The new list won three seats, drawing support from the Oriental community. TAMI’s success appeared to have a major impact on the NRP, which saw its Knesset strength cut in half from twelve to six seats. The NRP further splintered in 1984, when the party’s right-wing Matzad faction broke away and joined with two independent right-wing Knesset members to form the Morasha (Heritage Party). Morasha won two seats in the 1984 election; the NRP again lost ground, falling to four Knesset seats. Morasha, however, collapsed in 1988 when Matzad left to rejoin the NRP. The reintegration of the right-wing Matzad faction strengthened the nationalist tendencies within the NRP; changes within the party leadership also contributed to the NRP’s rightward shift. The NRP’s new leadership was committed to retaining the occupied territories and also took a less conciliatory position on domestic religious issues, particularly the question of changing the Law of Return to recognize only Orthodox conversions. In response to the NRP’s rightward trend, party doves left in 1988 and formed the Meimad (Dimension Party) under the leadership of Rabbi Yehuda Amital, the respected head of the hesder yeshivot movement. While Meimad promotes the incorporation of Orthodox religious practices in Israeli life, it believes that this objective should be accomplished through education and mutual accommodation rather than the “coercive” measures used by the other religious parties. The NRP has experienced several crises of conscience in recent years. It was badly shaken by the fact that Yigal Amir, the assassin of Prime

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Minister Yitzhak Rabin, was a graduate of the national religious yeshiva system. There was then the controversy that arose when a small but prominent group of national religious rabbis called on religious soldiers within the Israel Defense Forces, among them a growing number of officers, to disobey orders from their commanders to participate in the evacuation of settlers in the 2005 Gaza disengagement. While the mass disobedience among religious soldiers did not materialize, the very existence of the threat caused many critics to raise serious questions about the future of the NRP in preserving Jewish values in Israeli politics and society. Were the NRP and the national religious Zionist philosophy that it had represented for almost a hundred years still relevant to twenty-first-century Israelis? And had its progressive nationalist drift since the 1980s placed the NRP outside of mainstream Israeli popular opinion? The ultra-Orthodox Aguda also underwent splintering and soulsearching. In 1984, the former Sephardi Chief Rabbi Ovadia Yosef and other Sephardi rabbis dramatically left the Ashkenazi-dominated Aguda and established the Sephardi Torah Guardians (SHAS) after Aguda leaders refused to place enough Sephardi candidates in safe slots on Aguda’s list for the election to the Eleventh Knesset. Eliezer Schach, a Lithuanian-born (and Ashkenazi) rabbi and leader of misnagdim (non-Hasidic elements) within Aguda, helped to engineer the creation of SHAS. Schach was primarily troubled by the influence of Aguda’s Hasidic trends over its Sephardic followers and thought the formation of a separate Sephardi ultra-Orthodox political party would force Aguda’s Hasidic leadership to pay more attention to the party’s non-Hasidic members. SHAS’s rapid rise and growth in influence was impressive; the party took four seats in the 1984 Knesset election, only months after its formation, and moved to seventeen seats in the 1999 election. Analysts attributed the party’s success to Machiavellian resourcefulness combined with the charismatic, populist appeal of its spiritual leader, Rabbi Ovadia Yosef. By participating in the 1984–88 Government of National Unity, SHAS controlled the interior ministry—traditionally the bastion of the National Religious Party—which enabled it to channel funds through local governments in providing services to its constituency of haredi Sephardi Jews and, as a result, win additional electoral support in subsequent elections. Also, SHAS exploited the Sephardi-Ashkenazi ethnic split, stressing in its platform the restoration of Oriental culture to a position of prominence in Israeli society. Furthermore, the party benefited from having Rabbi Ovadia Yosef as its mentor, a man who was popular even among non-Orthodox

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Oriental Jews. Moreover, by opening its network of subsidized fullday daycare centers, with hot lunches, to all Israelis, SHAS began to gain the political support of religiously “traditional” Ashkenazi families. Finally, critical to SHAS’s success has been Ovadia Yosef’s legendary political wisdom, often reflected in his refusal to publicly endorse any of the leading political parties or candidates for prime minister in order to give SHAS maximum flexibility in postelection coalition negotiations. What has also distinguished SHAS from the other religious parties is its relative pragmatism with regard to foreign policy. In the 1990s Ovadia Yosef declared his readiness, in principle, to sanction Israeli territorial compromise if such actions would save lives (based on the religious precept of pikuah nefesh). Aguda was again split in 1988. This time, Eliezer Schach, the Ashkenazi rabbi who had helped to engineer the creation of SHAS four years earlier, left Aguda with his followers over what he saw was the growing influence within the party of the Lubavitch Hasidic sect and its leader, Brooklyn-based Rabbi Menachem Mendel Schneerson. On the eve of the 1988 election to the Twelfth Knesset, Schach formed the rival ultra-Orthodox party Degel HaTorah (Flag of the Torah). This development led Schneerson to mobilize his followers to vote en masse for Aguda, resulting in Aguda winning five Knesset seats, whereas Degel HaTorah took only two. Prior to the June 1992 election, Schach agreed to Degel HaTorah joining Aguda in a unified electoral list called United Torah Judaism. But the relationship between the two segments of the Ashkenazi haredi party remained tenuous, at best. Despite their areas of discord, Israel’s religious political parties have a common denominator: the effort to represent the interests of Israel’s Orthodox and ultra-Orthodox communities. They share a loyalty to traditional religious Judaism and realize the need to mobilize the religious community to prevent secular intrusion in the religious domain. Also, they are determined to ensure the perpetuation of religious values and lifestyles in Israel and to retrench Orthodox domination over non-Orthodox streams of Jewish religious practice. Partly because of these concerns, the religious parties have created communal and educational frameworks to draw together those Jews who are faithful to the Orthodox perspective. They may differ in their approaches to the non-Orthodox society and views of Zionism, but they agree that there must be no contradiction of halacha, and that Orthodox religious interests must be preserved and enhanced. The permanence of the religious parties and their continued participation in Israel’s political process skews the religious-secular debate.

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It also reflects the extent to which Israel does not fit the Jeffersonian conception of the separation between religion and state.

Th e 2006 Pa r l iamentary (K nes set) Electi on Significant aspects of the religious debate in Israeli society, culture, and politics were vividly displayed in the campaign for the March 2006 election to the Seventeenth Knesset and in the results of the ballots. For instance, the avowedly secularist Shinui party collapsed largely because of internal discord over religious issues. A pragmatic faction called for tempering Shinui’s divisive anticlericalism to make the party more attractive to the large body of centrist “undecided” Israeli voters, whereas Shinui stalwarts remained committed to a firmly ideological platform that attacked the legitimacy of the Orthodox and ultra-Orthodox parties. In the end the party could not sustain such internal discord and Shinui failed to cross the threshold for winning seats in the Seventeenth Knesset and disappeared from the political landscape. In the election, the religious parties were motivated by a desire to retake ground lost to the secularists in the perpetual struggle to define the character and soul of the Jewish state. All sought increased state funding for Orthodox educational institutions and yeshivot, the reversal of previous cutbacks on funding to large families (an issue of particular and growing concern to the Orthodox and ultra-Orthodox communities) in addition to the creation of a special “welfare payment” for large families, and the maintenance of the status quo affecting deferments from military service for students in ultra-Orthodox yeshivot and the Orthodox interpretation of halacha concerning marriage and defining “who is a Jew.” They also sought tacit or explicit commitments from the Olmert administration with regard to two Israeli government institutions. First, they demanded measures to rein in the Supreme Court that had—leaders of the Orthodox and haredi communities contended—become increasingly assertive in interpreting laws and establishing social values in ways that were contrary to the interests of the Jewish state and the survival of the Jewish people. Second, the religious parties sought to have control over religious affairs, which had been devolved to various government ministries and municipal authorities by a Labor-led coalition in the late 1990s (in what the harediim viewed as an assault on their influence), again consolidated in a reestablished ministry of religious affairs. It was with respect to foreign policy that differences emerged among the religious parties after the 2006 election.

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A member of all coalitions since the 1990s, the ultra-Orthodox SHAS party had experienced a decline in its political fortunes after having been left out of Ariel Sharon’s government in 2003—a direct result of the strident refusal of the anticlerical Shinui, holder of fifteen seats and the balance of power in the Sixteenth Knesset, to sit in the same cabinet with ultra-Orthodox members of Knesset. Without access to the funds and patronage that typically accrued to it through cabinet appointments, SHAS’s popular support threatened to fray at the margins. SHAS’s leaders, headed by revered spiritual mentor Rabbi Ovadia Yosef and party chairman Eliyahu (Eli) Yishai, were not willing to risk further slippage by being excluded from the new coalition formed by Prime Minister Ehud Olmert. Emboldened by the addition of one more seat than the eleven it held in the incumbent Knesset (as well as by the self-destruction of its arch-rival Shinui), SHAS immediately entered into coalition negotiations. Its demands on domestic religious and social affairs were balanced by a relatively pragmatic approach toward foreign policy. During the election campaign, Ovadia Yosef had expressed his opposition to any further Israeli unilateral territorial concessions along the lines of the 2005 Gaza disengagement. At the same time, Eli Yishai acknowledged that retaining all of the Jewish settlements in the West Bank in the framework of a peace agreement with the Palestinians is unrealistic: “Talk about holding onto all our settlements was relevant twenty years ago. . . . Today it is outdated.” Both statements, reflecting broad-based Israeli national consensus positions à la 2006, typified the flexibility that permitted SHAS to enter the Olmert-led coalition government and to support the general parameters of Olmert’s diplomatic initiative with the Palestinians, in exchange for significant government concessions to SHAS’s domestic agenda. The National Religious Party approached the 2006 election weakened and uncertain about its future. Its contingent of six seats in the incumbent Knesset was reduced to four when party chairman Efraim (“Effie”) Eitam and former leader Yitzhak Levy seceded in a dispute about the party’s policy response to the Gaza disengagement. Opinion poll data consistently suggested that, running on its own, the NRP might fail to pass the 2 percent threshold for winning seats in the next Knesset. At the last moment, the NRP entered a joint list headed by the right-wing National Union Party. The National Union campaign was focused exclusively on protecting the interests of the West Bank settler community and blocking any further territorial concessions; the platform was devoid of any religious content. This hard right-wing orientation, combined with the fact that the

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joint National Union–NRP list won only nine seats in the 120-seat Knesset, eliminated it from participation in coalition talks with the Olmert administration, thus further diminishing the NRP’s capacity to influence religious and social affairs and leaving very much in abeyance the future of the NRP as a meaningful participant in Israeli politics, society, and culture. Facing the prospect of electoral failure if they ran independently, the ultra-Orthodox Agudat Israel, representing the various Hasidic movements inside and outside Israel, and Degel HaTorah, representing the non-Hasidic ultra-Orthodox community, agreed to again submit a joint slate for the 2006 election under the United Torah Judaism banner, and won six seats (an increase of one from the five they held together in the preceding Knesset). The party’s collective leadership was motivated by the same basic domestic considerations in coalition negotiations with the Olmert administration. Discord emerged about foreign policy. While Aguda was stridently supportive of the settlers and firmly opposed to Ehud Olmert’s diplomatic initiative with the Palestinians, Degel HaTorah indicated a general readiness to provide Olmert with a Knesset safety net for aspects of the initiative in exchange for concessions to its religious and social policy agenda. Initially, this safety net was provided from outside the coalition, a situation that appeared generally satisfactory for both Olmert and the Degel HaTorah leadership. The dynamic of this relationship shifted, seemingly in Degel HaTorah’s favor, after the eleven-member Israel Beiteinu, another right-wing party, withdrew its support for the Olmert government in mid-January 2008 in a dispute over negotiations with the Palestinians. However, Degel HaTorah (along with SHAS) claimed to “draw the line” in supporting the Olmert government on the issue of negotiations with the Palestinians over the future of the Temple Mount in Jerusalem’s old city. In adopting this red line, they appeared to be operating well within the national consensus as it prevailed among Jewish Israelis in 2008. That consensus declared that Jerusalem should never be redivided and that the Western Wall and other Jewish holy places should remain under Israeli sovereignty. Support for those positions was virtually unanimous, as strong among secularists as among the Orthodox. The notion of retaining Jerusalem had bridged the religious divide among Jewish Israelis.

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C o nclusi on Sixty years of history have provided numerous examples of the tensions between state and religion within the modern Jewish State of Israel. While the Declaration of Independence provided specific concepts for the relationship, the functioning of the political system and the activities of daily life led to numerous controversies, not all of which have been resolved. The practical politics of the Jewish state have led to the blurring of lines in the wall of separation between synagogue and state. And the dynamics of the relationship continue to be modified by actors on both sides of the wall. Despite six decades of practice and of debate among and between an ever-changing Jewish (and nonJewish population), no clear parameters have been established for the roles of the secular and religious elements and no written constitution articulates the precise role of church and state in relations with each other, nor for the precise powers and limitations of each concerning the other. Although all religious groups are free to practice their religious beliefs as they see fit and deem proper, and there is no established religion, the guarantees are built of practice and the workings of the political system, not because of a constitutionally or ideologically constructed “wall of separation” envisaged by Thomas Jefferson.

Notes 1. Estimates vary, but anywhere from 650,000 to 800,000 Jews left Arab and Muslim countries in the Persian Gulf or North Africa in the period beginning around 1948 and continuing into the early 1960s. The vast majority were resettled in Israel. See Itamar Levin, Locked Doors: The Seizure of Jewish Property in Arab Countries (New York: Greenwood Press, 2001). 2. These historical developments were the Balfour Declaration, the Holocaust, growing anti-Semitism, and Jewish assimilation that threatened many of the great centers and institutions for the study of the Torah. 3. Moetzet Gedolei Hatorah declines to permit Aguda MKs to hold ministerial portfolios in Israeli coalition governments, for to do so would be to imply full concurrence with the state’s secular orientation.

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Index

Please note that page numbers appearing in italics indicate endnotes. Abbas, Ferhat, 159 Abbas, Mahmoud, 160, 167 Accommodationism, 129, 135 Act of Toleration (1689), 39 Adams, John, 22, 26, 76 admiration for ideals/experience, 86 admiration for influential individuals, 86 Ahmadinejad, Mahmoud, 164 Albania, 122, 124–25 Anglican Church, 40, 54, 63, 93, 124, 142, 143, 148 See also Church of England antidiscrimination legislation, 109–10, 132 antidisestablishmentarianism, 131 Arafat, Yasir, 160, 166 Ataturk, Kemal, 156–59, 165 Audi, Robert, 127 Australia, 6, 61, 64, 66–68, 147 Section 116 of Constitution, 64, 66–68 Aziz, Abd al, 162 Badie, Bertrand, 111 BarbéMarbois, Marquis de, 73 Barrett, David, 123, 125, 128 Barro, Robert, 128 Basic Law of 1949, 80, 86, 88, 122 Belgium, 124, 146–47 Bella, Ahmed Ben, 159 Bellah, Robert, 118–19, 131 Besancon, Alain, 104

Beveridge, Albert, 80 bin Laden, Osama, 162 Birnbaum, Pierre, 111 Boumediene, Hourari, 159 Bourguiba, Habib, 158–59 Boyd, Julian, 40 Brennan, William, 57 Brown, Nathan, 12 Bryan, William Jennings, 80 Bulgarian Orthodox Church, 124 Bush, George W., 3, 5 Calvinism Amsterdam and, 139–40 democracy and, 142, 143 Jefferson, Thomas, and, 21–22, 26, 30 Carter, Jimmy, 3 Casanova, Jos&ewithline;, 110, 112 Catholicism Australia and, 67 Austria and, 63 Belgium and, 124, 146 concordants and, 121 confessionalization and, 113–17 democracy and, 142–43, 146–48, 150–51 France and, 119, 138 Ireland and, 62 Italy and, 62, 104 Locke, John, and, 38, 45 Peace of Westphalia and, 133, 142 secularization and, 110–11

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Catholicism (continued) U.K. and, 109–10, 132 United States and, 96 Vatican Council II, 9 Charlemagne, 111, 118 Church of England, 38–39, 63, 101, 137 See also Anglican Church Church of Scientology, 127 civil society constitutional transference and, 87 Islam and, 151, 167 Madison, James on, 45–46, 49 Martin, David on, 9 Rémond on, 127 Civil War (Lebanese), 167 Civil War (Spanish). See Spanish Civil War Civil War (U.S.), 17–18, 20, 30–31 Clermont-Tonnerre, Count Stanislav de, 102 colonialism, 86, 158, 159 Condorcet, Marquis de, 75 confessionalization process, 113–14 conformity to international documents or norms, constitutions and, 87 consensus fidelium, 8–9, 141–42 Cooper, Anthony Ashley. See Shaftesbury, Earl of Cooper, Thomas, 28 Cooperationism, 129, 130 Custos, Dominique, 64–65 Czechoslovakia/Czech Republic birth of, 82–83 collapse of communism and, 125 Declaration of Independence, 83 democracy and, 147–48 Masaryk, Thomas, and, 82–83, 87 Peace of Westphalia and, 133 religious freedom and, 147–48 secularization and, 125–26 Wilson, Woodrow, and, 82–83

Danbury Baptist Association, 3, 35, 42 Davie, Grace, 114 Declaration of Independence (Czech), 83 Declaration of Independence (U.S.) France and, 75 freedom of religion and, 118–19 Jefferson, Thomas, and, 37, 61 natural rights and, 20 Declaration of Rights, 37–40, 74–76 de facto philosophy, 123–26 Defence of the Constitutions . . . of the United States (Adams), 76 de jure philosophy, 123–25 Démeunier, Jean Nicole, 73 Democracy in America (Tocqueville), 79 diffusion, 19, 32 disestablishment France and, 138, 146 Jefferson, Thomas, and, 5, 31, 38–40, 42–43, 50, 54 Madison, James, and, 38–40 Sweden and, 126 Turkey and, 11, 157 Dream of the Rood, The, 139 Dreyfus Affair, 104 dual guarantees of religious freedom domestic perspective, 54–60 international perspective, 60–70 due process, 85 Durham, Cole, 129, 135–36 Eastern Orthodox Church, 113–14, 149 Edict of Nantes (1685), 44 Egypt current state-religion relationship, 167–68 Islam and, 12, 165–66 nationalism and, 158–61 secularization and, 158–61 Ellul, Jacques, 104

Index Ely, Ezra Stiles, 21 Embarrassment of Riches, The (Schama), 139–40 England. See Great Britain English Bill of Rights (1689), 77, 97 Enlightenment, 18–20, 24, 28–29, 31–32, 39, 73–75, 77, 146–48, 151 Erbakan, Necmettin, 157 esprit, 147 Esprit des Lois, L’ (Montesquieu), 77 Establishment Clause (First Amendment, U.S. Constitution) Section 116 of Australian Constitution and, 66–67 secularization and, 118, 131 Supreme Court rulings on, 41, 55–59, 136 taxation and, 53 European Convention on Human Rights and Fundamental Freedoms (1950), 62, 63, 87, 121 evangelical Christianity, 25–27, 29–30 Fallaci, Oriana, 104 Fanon, Frantz, 159 Fatah, 166–67 Fatton, Robert, Jr., 1–13 Federalist Papers, The, 79, 100 Ferrari, Silvio, 126–29 First Amendment (U.S. Constitution) Declaration of Rights and, 43 Establishment Clause, 41, 53, 55–56, 118, 121, 131, 136, 143 Free Exercise Clause, 55–56, 64–68, 70 Section 116 of Australian Constitution and, 66–68

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Supreme Court rulings on, 57–60 Fox, Jonathan, 128–30, 135 France, 6, 44, 61, 63–66, 73–80 in Age of Revolution, 75–77 revolutions of 1848, 77–80 Franco, Francisco, 138 Franklin, Benjamin, 73, 74, 86 freedom of conscience, 3, 5, 40–43, 45–50, 63, 94, 97, 100, 102, 106, 126, 138 free exercise, 6, 28, 37–51, 54–58, 61–62, 64–66, 74, 118, 155 Free Exercise Clause, 41, 55–58, 64–65 Front de Libération Nationale (FLN), 158–60 Germany Basic Law of 1949, 86, 88, 122 cooperationism and, 129 democracy and, 148–49, 150 Enlightenment, 146 nationalism and, 77–80 Paulskirche Constitution, 79–80 secularization and, 93, 125 World War II and, 84, 120, 138 Goldberg, David, 12–13 Great Britain Anglican Church and, 63, 93, 101, 137 antidiscrimination legislation, 109, 132 Christianity and, 25–26 democracy and, 142 English Bill of Rights (1689), 77 Israel and, 148 Locke, John, and, 37–39, 44 religious freedom and, 122 Revolutionary War and, 48 secularization and, 4, 101, 142 See also Anglican Church; Church of England Greece, 93, 114, 126, 150, 156 Greek Orthodox Church, 124

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Habash, George, 160 Habeas Corpus Act (1679), 97 Hale, Salma, 26 Hamas, 160, 166–67 Haniyah, Ismail, 167 Haraldsson, Olaf, 139 Harlan, John Marshall, 57 head scarves, 64–65, 70, 104, 157–58 See also religious dress Hegel, G.W.H., 103 Hemings, Sally, 42 Herder, Johann Gottfried von, 77 Hezbollah, 167 High Federalists, 24, 28, 30 Hofstadter, Richard, 45 Holmes, John, 18 Holy Roman Empire, 111 Howard, A. E. Dick, 6, 73–89 Howard, John, 68 Hungary, 148 Iceland, 114 Ignatieff, Michael, 106 Inglehart, Ronald, 3, 7 Iran, 10–11, 156, 157, 161, 163–68 Iraq, 5, 137, 161–62, 165, 167 Ireland, 3, 62, 124, 135 Islam Algeria and, 159–60 anti-Islamic movement, 8, 104 authoritarianism and, 11–12 Catholicism compared to, 9 Egypt and, 167–68 Europe and, 124–25 head scarves and, 138 Iran and, 163–65 Islamist movement, 165–67 Jordan and, 162 liberalism and, 151 Morocco and, 162 Saudi Arabia and, 161–62 secular culture and, 95 secularization and, 156–61 state and, 4, 8–12, 156–68 Turkey and, 156–59

Israel, 12–13, 158, 160, 166–67 Israel, Jonathan, 44 Italy, 62, 93, 104, 142, 146–47 Japan, 6, 81, 84–85, 86 Jefferson, Thomas anticlericalism, 29–32 Christianity and, 17–32 domestic perspective, 54–60 dual guarantees of religious freedom France and, 73–74, 86 international norms and, 87 international perspective, 60–70 legacy, 53–70, 89 Locke, John, and, 37–45, 47, 50–51 republicanism and, 20–24 unitarianism and, 24–29 Virginia Statute for Religious Freedom, 100 vision of Americans as “chosen,” 18–20 wall of separation, 1–3, 5–6, 9, 11, 13, 122, 131–32, 137–38, 146, 150, 155, 168 Jellinek, Georg, 97, 99–100 Johnson, Paul, 111 Jordan, 162 Judaism Christianity and, 104, 139, 143–45 democracy and, 4 European culture and, 104, 148 France and, 120 freedom of conscience and, 45 Israel and, 12–13 Jefferson, Thomas, and, 21 “Jewish Question” and, 102 Middle East and, 158–59 secularization and, 94–95 U.S. Supreme Court and, 65 kairos, 145 Kennedy, John F., 3 Kercheval, Samuel, 21

Index Khamenei, Ayatollah Ali, 163–64 Khatami, Mohammed, 164–65 Khomeini, Ayatollah Ruhollah, 163–64, 165 Lafayette, Marquis de, 86 Lebanon, 165, 167 Le Pen, Jean-Marie, 104 L’Esprit des Lois, 77 liberalism, 7, 24, 102–7, 120, 146–47, 151, 162 Lincoln, Abraham, 18, 20, 24, 84 Lipset, S. M., 96 Locke, John, 37–51, 75, 77, 99 Luther, Martin, 26, 142, 144 Lutheranism, 62, 124, 148–49 MacArthur, Douglas, 84–85 Madeley, John, 8, 109–32 Madison, James freedom of religion and, 54–56, 58–60 Free Exercise law and, 64–65 Jefferson, Thomas, and, 38–39 Locke, John, and, 45–47, 49–51 Religion Clause (Declaration of Rights), 38–39 Reynolds v. U.S. (1879) and, 41 secularization and, 70, 101 Virginia Statute for Religious Freedom, 41–42 Magna Carta, 77, 88 Marbury v. Madison, 74 Maritain, Jacques, 146 Marshall, John, 74 Martin, David, 8–9, 110, 137–51 Masaryk, Thomas, 83, 87 Mason, George, 75 Matsumoto, Joji, 84 Mayer, Ann Elizabeth, 11 McCleary, Rachel, 128 McKinley, William, 80 Memorial and Remonstrance against Religious Assessments, 45, 46, 49, 54 messianism, 149, 150

237

Mexico, 146 military defeat/occupation, constitutions and, 86–87 Mirabeau, Honoré Gabriel, 76 Mittermaier, Carl, 79 Mohl, Robert von, 78 monotheism, 140 Montesquieu, Baron de, 77 Moonies, 127 moral community, 20–24 Morocco, 162 Mounier, Jean Joseph, 76–77 Mubarak, Hosni, 166, 167 Muslim Brethren (MB), 165–66 Nasrallah, Hassan, 167 Nasser, Gamal Abdel, 158, 160, 165 nationalism Christianity and, 139, 148–50 democracy and, 9 France and, 77 human solidarity and, 141–43 Islam and, 163–68 Middle East and, 156, 158–61 secularization and, 146 United States and, 18 natural rights, 20, 42, 49, 99 Nazism, 104, 138 Neuhaus, Richard, 127 New Religious Movements (NRMs), 114, 127 Norway, 62, 93, 147 Notes on the State of Virginia (Jefferson), 50, 73 O’Neil, Robert, 2, 6, 53–70 Onuf, Peter, 5, 17–32 Orthodox churches Bulgarian Orthodox Church, 124 Eastern Orthodox Church, 113–14, 149 Greek Orthodox Church, 124 Romanian Orthodox Church, 126 Russian Orthodox Church, 124, 143

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Orthodox churches (continued) Serbian Orthodox Church, 125 O’Shaughnessy, Andrew Jackson, vii–x Paine, Thomas, 137 Palestine, 163, 165 Palestine Liberation Organization (PLO), 158, 160 Paulskirche Constitution, 78–80, 87 Peace of Westphalia, 44, 96, 113, 133 Petition of Right, 97 Philippines, 80–81, 86, 138 Pickering, Timothy, 28 Pipes, Richard, 150 Poland, 77, 138, 139, 141, 142, 149 political/economic calculations, constitutions and, 87 Pope Benedict XVI, 63, 150 Pope Gregory VII, 112 Pope Innocent III, 112 Potsdam Declaration, 84 Priestley, Joseph, 26 Protestantism, 7, 9, 23, 30–31, 44– 46, 51, 95–98, 102, 113–17, 121, 124, 139, 142, 146–48, 150–51 Prussia, 79, 84 Puerto Rico, 80 Putin, Vladimir, 150 Quandt, William, 9–10, 155–68 Rafsanjani, Hashemi, 164 Rakove, Jack, 5–6, 37–51 Ramazani, R. K., 1–13 Rehnquist, William, 56, 58, 136 Reich, Bernard, 12–13 Religion Clause (Declaration of Rights), 38, 40–41, 43 religious dress, 64–65, 70, 104, 138, 157–58

See also head scarves Religious Freedom Restoration Act (RFRA), 58 Religious Land-Use and Institutionalized Persons Act (RLUIPA), 58–59 Rémond, Rene, 119, 127 republicanism, 5, 19, 20–24, 25, 30 Reynolds v. U.S. (1879), 41 Robinson, Moses, 22 Roman Catholic Church. See Catholicism Romania, 87, 126, 149 Romanian Orthodox Church, 126 Rousseau, Jean Jacques, 76–77 Rush, Richard, 78 Russia, 84, 121, 124–26, 143, 146, 148–50 See also Soviet Union Russian Orthodox Church, 124, 143 Sadat, Anwar, 158–59, 166 Salazar, António de Oliveira, 138 Saudi Arabia, 161–62 Savigny, Friedrich Karl von, 77 Schama, Simon, 139–40 Second Great Awakening, 23, 25–26, 29–31 secularization Catholicism and, 110–11 Czechoslovakia/Czech Republic and, 125–26 difference and, 100–102 Egypt and, 158–61 Establishment Clause (First Amendment, U.S. Constitution) and, 118, 131 freedom of conscience and, 97 Jellinek, Georg on, 97–100 Judaism and, 94–95 liberalism and, 102–7 Madison, James, and, 70, 101 natural law and, 99

Index Protestant Reformation and, 96–97 religion and, 94–95 Turkey and, 6, 11, 61–62, 121, 156–59 See also wall of separation Seligman, Adam, 7–8, 93–107 Separation Act, 120 Serbia, 125, 139, 149 Serbian Orthodox Church, 125 Shaftesbury, Earl of, 38 Shah, Reza, 157, 163–64 sharia, 12, 44, 156–57 Sieyès, Abbé, 76–77 slavery, 19–20, 31, 35, 140 Smith, James, 29 Soviet Union, 86, 122, 125, 129, 158 See also Russia Spain, 80, 81, 93, 114, 138, 142, 146 Spanish Civil War, 146 Statute for Religious Freedom, 40, 47, 50, 51, 54, 61, 64, 73, 100 Stepan, A., 120 Stevens, John Paul, 58 Story, Joseph, 79 Sweden, 62, 93, 96, 126, 147 Switzerland, 156, 163 Taft, William Howard, 80–81 taxation, 41, 48, 53, 125, 128 Tayyip, Recep, 158 technical advice, constitutional ideas and, 87 Tocqueville, Alexis de, 78–79, 119 transference, constitutional ideas, 85–87 admiration for ideals/experience, 86 admiration for influential individuals, 86 colonialism, 86

239

conformity to international documents/norms, 87 military defeat/occupation, 86–87 political/economic calculations, 87 technical advice, 87 Treaty of Augsburg (1555), 113 Treaty of Westphalia (1648), 142 Trinitarianism, 26, 28 Tunisia, 158–59, 161 Turkey Ataturk, Kemal, and, 156–59 France and, 146 Greece and, 150 influence on Middle East, 157–59, 165, 167 Islam and, 157–58, 161 religious freedom and, 62 secularization and, 6, 11, 61–62, 121, 156–59 Tydings-McDuffle Act (1934), 81 Unitarianism, 24–29, 30 Vatican Council I, 104 velayat i-faqih, 164, 165 Viginia Statute for Religious Freedom. See Statute for Religious Freedom violence, 4, 9, 19, 96, 137–51, 165 Vladimir of Kiev, 139 Wahhabism, 151, 161–62 wall of separation, 1–3, 5–6, 9, 11, 13, 122, 131–32, 137–38, 146, 150, 155, 168 Ward, Keith, 118, 133 Washington, George, 99–100 Waterhouse, Benjamin, 26–28 Weber, Max, 2, 109, 112 Welzel, Christian, 3 Whitney, Courtney, 84 Williams, Elisha, 99

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Williams, Roger, 97 Wilson, Bryan, 132 Wilson, Woodrow, 82–83, 86 World War I, 82, 86, 134, 146, 149

World War II, 87, 104, 120, 147, 149, 157 Yugoslavia, 125