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date: 27 February 2024

Religion in 21st-Century Political Philosophyfree

Religion in 21st-Century Political Philosophyfree

  • Sune LægaardSune LægaardDepartment of Communication and Arts, Roskilde University

Summary

Discussions of religion in political philosophy concern normative questions such as whether religious reasons can be appealed to in political justification, whether the state can support the church, how the state should regulate religious symbols in public space, and how freedom of religion and religious discrimination should be understood. Debates about religion in political philosophy can be separated into two different main framings. One framing represents the issues in terms of a relation between different spheres, such as religion and politics. Another framing represents the issues in terms of the regulation of specific acts and activities, such as observing religious beliefs by wearing religious dress. All these issues, however framed, raise questions about what counts as religion and why it is normatively relevant. However, religion can denote quite different things which are normatively relevant for different reasons in different respects.

Subjects

  • Political Philosophy

Introduction

Religion has been a topic of much political interest for several decades. The 9/11 attacks elevated religion as a central category for understanding world politics. Religion also plays a central role in domestic politics. This has been the case in specific cases such as debate over abortion in the United States, which gained renewed prominence with the overturning by the Supreme Court in 2022 of the 1973 landmark decision in Roe v. Wade regarding a constitutional right to abortion. But religion has increasingly also been invoked in relation to more general debates about how to understand the political community and the nation. This has often happened in response to increased diversity due to immigration. This is evident in Donald Trump supporters’ calls to “make America great again,” where America is often understood as White and Christian; in Indian Hindu nationalism; and in European debates about how to respond to multiculturalism, where appeals have been made to ideas about Christian Leitkultur and where the compatibility of Islam and liberal democracy have repeatedly been debated.

The salience of religion as a category of political interest has accordingly been studied both in empirical social science, where the aim is to describe and explain these societal and political developments, and in normative political philosophy, where the aim is to assess and justify normative claims made in terms of religion. In political philosophy about religion, questions include whether appeals to religious claims can legitimately be invoked to justify political views (e.g., about abortion); whether and when states can permissibly limit religious practices, such as the wearing of Islamic headscarves by Muslim women; and whether the state can be linked to religion. This article surveys some of the most prominent debates about such normative issues involving religion within political philosophy in the 21st century (for more empirically and explanatory discussions of such issues, see Fox, 2018; Friesen, 2019; Hoffman, 2018).

The Understanding of Religion

A natural way to approach normative issues about religion is to first ask for a definition of religion and then discuss the normative salience of religion thus defined for the specific question at hand. It seems obvious that how one should answer the noted kinds of questions—for example, whether the state can limit the presence of religious symbols in public spaces or whether free speech should be limited out of respect for religion—depends on what is understood by “religion.” There are some clear examples of what one take to be religion—for example, that the relation between the Church of England and the state is an example of religious establishment or that exemption from requirement of animal stunning before kosher or halal butchering is a religious exemption. But in virtue of what do these cases involve religion? The answer to this question is important because there are other cases in which it is not as clear whether religion is at stake. This makes a normative difference if the presence of religion is normatively salient. For instance, if there is a right to freedom of religion, then it matters for what people can do whether it can be described in terms of religion or not. If religious convictions should be protected, it makes a difference whether conscientious objections are based on religious beliefs or not. If religious organizations are protected in virtue of being religious, it makes a difference whether Scientology is recognized as a religion or not, which has been an object of controversy in several European countries.

It seems that a definition of religion is needed that explains why clear examples are cases of religion and which can be used to determine in new cases whether religion is at stake or not. Robert Audi (2011) denies that a definition is needed but nevertheless proceeds to offer nine important criteria for constituting a religion, which he takes to be

conceptually relevant to, though not strictly necessary for, a social institution’s constituting a religion or (as applied to individuals) to an individual’s having a religion: (1) appropriately internalized belief in one or more supernatural beings (gods); (2) observance of a distinction between sacred and profane objects; (3) ritual acts focused on those objects; (4) a moral code believed to be sanctioned by the god(s); (5) religious feelings (awe, mystery, etc.) that tend to be aroused by the sacred objects and during rituals; (6) prayer and other communicative forms concerning the god(s); (7) a worldview according the individual a significant place in the universe; (8) a more or less comprehensive organization of life based on the worldview; and (9) a social organization bound together by (1)–(8). (pp. 72–73)

The problem with such a list of criteria is that if one takes them not to be necessary, but merely sufficient, then all kinds of things that are usually not considered as religious will qualify. Adherents of the philosophy of Ayn Rand will qualify as constituting a religion according to item 7. If, on the other hand, we take the criteria to be necessary, then many cases that are usually taken to involve religion will not qualify. Buddhism, for instance, does not involve belief in one or more supernatural beings. So, such definitions will either be over- or underinclusive (for further discussion, see Laborde, 2017). If it makes a normative difference whether something qualifies as religious, both possibilities seem problematic because they imply that either too many or too few groups and related practices will enjoy the special status of religion.

Not only is it problematic to provide a definition—or even a looser characterization—of religion but also it is unclear why religion as defined or characterized in any specific way should have the normative salience usually ascribed to it. Why does belief in supernatural beings mean that acts and practices based on such beliefs should enjoy special protection? It is a fact that religion is treated as having a special status in law. The question is whether this special status is justifiable and, if so, on what grounds. Any answer to this question furthermore must provide a justification that does not simply assume what is to be shown—that is, that religion has special status. So even if many people have religious beliefs and take them to be of fundamental importance and as requiring special respect and protection, one cannot appeal to this belief to justify this special status.

There have been many attempts to provide such justifications for why religion is special. But most such attempts run afoul of the requirement not to presuppose what must be shown. This has led some to reject the very idea that religion should is normatively salient. One might thus think that there is no need for a right to freedom of religion because rights to free speech, privacy, and association should offer all the protection needed without having to take religion to be special. This is a very radical and revisionist view, however, because it implies, for instance, that many established legal rights that assign importance to the category of religion are not justified. An alternative view is what Cécile Laborde (2017) has called the liberal egalitarian theory of religion, exemplified by theorists such as John Rawls, Ronald Dworkin, and Charles Taylor, according to which religion is specially protected but only because it counts as a subset of a larger normatively salient category, namely “conceptions of the good.” Such an egalitarian theory of religion is able to both explain the normative salience of religion and avoid having to state that religion is uniquely special.

Laborde (2017) argues that the egalitarian theory of religion must be further developed. Some of the same problems that can be raised regarding the category of religion can be raised again regarding the category of conceptions of the good, and this category in any case does not adequately capture all the different ways in which religion is often taken to be normatively salient. Laborde therefore proposes a disaggregation approach, which does not view religion as one thing that can be either captured in a semantic definition or neatly subsumed under one more general category such as conceptions of the good. Laborde rather proposes to view religion as what she calls an interpretive concept, which means that we should start out from considerations about what the applicable normative principles are and then consider what should count as religion on that basis rather than the other way round. This interpretive approach implies a disaggregation approach, in which religion means several different things related to several different normative issues.

This article follows Laborde’s (2017) interpretive and disaggregated approach in the sense that it does not proceed on the basis of a settled definition of religion. The article rather presents some of the most prominent debates about religion in recent political philosophy and discusses which conception of religion is relevant to each of the debates in question. The article thus illustrates a disaggregated approach.

The Framing of Debates About Religion: Spheres or Acts?

It is worth noting some structural features of debates concerning religion that seem to group them into different categories, which may in turn have significance for what is normatively at stake in them and hence, according to the interpretative approach, for what counts as religion in these debates. There are two main ways of framing the debates concerning religion. One conceptualizes such debates in terms of a relationship between religion as a sphere and something else than religion as a contrasting sphere. The other conceptualizes such debates in terms of religious acts or activities by individuals or groups.

At the most abstract level, we can characterize the first relation-between-spheres-framing as being about the relation between politics and religion. But this characterization already makes several important assumptions, namely that religion is something else than politics and that there is a potential conflict between the two. This is not at all a given thing but, rather, a product of historical political struggles. There are different narratives of this historical development. Mark Lilla (2008), for instance, articulates it as the “Great Separation” between private claims to revelation and the public arbitration of politics by appeal to reason. On Lila’s account, the Great Separation can be traced to early modern political thinkers such as Thomas Hobbes and, following him, John Locke and David Hume, who exemplify a move from “political theology” in which there is precisely no distinction—and hence no possible conflict—between politics and religion to a secular worldview in which these are two distinct spheres. A somewhat similar historical narrative is presented by Charles Taylor (2007), who describes modernity as process toward a disenchanted world, increasingly understood in terms of modern science, where religion is no longer an assumed and inevitable frame of reference and meaning but becomes a possible and optional mode of understanding—what Taylor calls a move from transcendence to “the immanent frame.” Narratives such as those of Taylor and Lila are of course not uncontroversial, neither as historical accounts nor in terms of their political implications. The point of mentioning them here is not to endorse them in any specific respect, although they both certainly capture very widespread ways of understanding religion, but to note how they both show that the very category of religion is not a given. This means that any categorization of debates in terms of a relationship between politics and religion already—implicitly or explicitly—assumes such a narrative in one form or another. This in turn means that if we adopt such a categorization, as most participants in debates about religion do, it is crucial to keep in mind that neither the category of religion nor the category to which it is related or contrasted—be it the category of the political, the public, the scientific, or something else—is a neutral or given thing but, rather, itself an object of political disagreement and struggles.

Despite these caveats and reservations, it is striking how many debates about religion do adopt such a figure of relation between spheres. Furthermore, they do this despite quite marked differences in terms of what the debates are specifically about, which testifies to the appeal of this figure. There are three main subcategories of the relations-between-spheres framing (for a more detailed overview, see Perez, 2023), which differ in terms of what they understand the spheres as being about:

The relation between public and religious reasons in political justification

The relation between the state and the church (or, more generally, religious communities or organizations) as institutions

The relation between public and religious spaces, including issues about the presence of religious monuments or symbols in public spaces and the political regulation of religious sites

At each of these levels, major debates in political philosophy take place. The entire public reason debate following the ideas set out by John Rawls (1993) as well as Jürgen Habermas’ (2008) ideas of the postsecular are prime examples of the first type of debate. Debates about establishment are prime examples of the second type of institutional debate. And several more specific debates about everything from minarets to religious dress and the regulation of access to and use and ownership of contested religious sites are examples of the third type of debate. It is evident that reasons, institutions, and spaces are quite different things. Nevertheless, debates such as the ones just mentioned all make use of the relation-between-spheres figure to conceptualize the debates and what is at stake in them.

Another way of framing debates about religion is in terms of normative claims concerning specific acts or activities. Rather than viewing religion as one sphere contrasted with another (whether in turn understood as reasons, institutions, or spaces), the second acts-or-activities framing views religion as a characteristic of acts or activities by individuals or communities. This is the case, for instance, in discussions about religious observance (i.e., acts by individuals understood as motivated by compliance with perceived religious duties, such as praying at designated times or eating certain foods) or religious manifestation (e.g., displaying signs of religious faith or engaging in conscientious objections to military service or other acts prohibited by some understanding of religious commitment). The reason for discussing such religious acts or activities is that religious observance or manifestation can be problematic. This can either be relative to the attitudes of other people, who might object to certain religious acts or the religious beliefs supposedly informing them (whether because other people believe these to be the wrong religious beliefs or because they are religious as such), or relative to laws or policies, which might limit activities of a given kind (e.g., religious forms of ritual slaughter). So, the second framing of debates about religion concerns religion understood as certain acts or activities and the normative claims regarding these, in terms of both reasons for objecting to and for limiting them and reasons for allowing them despite such reasons.

There are two main versions of the acts-or-activities framing of debates over religion, depending on the types of normative claims in relation to religious acts or activities. One is in terms of religious freedom and the other is in terms of religious discrimination. Roughly, religious freedom is concerned with normative claims that specific acts or activities should be exempt from or immune to constraints because the act or activity is religious—as well as what the limits of such exemptions or immunities are, beyond which constraints are legitimate. Religious freedom is thus understood to be about a relation between reasons for limiting an act or activity and reasons for not doing so that depend on the act or activity being religious. Religious discrimination, on the other hand, is concerned with how the acts or activities of specific individuals or groups of individuals are treated relative to the acts or activities of other individuals or groups of individuals. Religious discrimination is thus understood as being about relations between how different individuals or groups are treated, where the acts or activities in question are religious or where one or both groups being compared are religious.

The distinction between religious freedom and religious discrimination is based both on the fact that there are distinct legal mechanisms regulating such matters and on more principled considerations. The legal mechanisms in question are rights to religious freedom, on the one hand, and rules against discrimination, on the other hand. Such legal mechanisms are in force in most jurisdiction and are set out both at the level of human rights, as constitutional rights, and at the level of specific legislation. The fact that such legal mechanisms are already in place generates debates about how religious freedom and religious discrimination should be understood (e.g., Jones, 2020). But even if such debates are contingent on existing types of legal rules, which might in principle be different and might not track fundamental moral principles, there is also a principled reason for distinguishing between religious freedom and religious discrimination. This has to do with the structural difference between the questions each addresses. Whereas religious freedom involves the relation between an act or activity by an individual or group and the reasons of the surrounding society or the state for wanting to regulate and limit this act or activity, religious discrimination is rather comparative in that it is associated with how one individual or group is treated compared to how another individual or group is treated. Any given act or activity can be discussed in either way, or in both at once, but the focus is different and therefore the relevant normative considerations might also differ. The focus in this article is on these two versions of the acts-and-activities framing because they relate to these legal mechanisms. But it is worth noting that religious acts and activities are also sometimes discussed under the heading of toleration, which sometimes concerns the attitudes and acts of people and groups toward other people and groups, rather than the legal regulation hereof (see Lægaard, 2020b).

The acts-or-activities framing of debates about religion can also be formulated at the level of collectives or organizations. This is the case when the act or activity is carried out by an organized body such as a church, congregation, faith school, religious service provider, or even private for-profit company. Acts or activities by such religious organizations can also clash with attitudes of outsiders or laws and policies. One well-known example is how employment practices of religious organizations can be informed by religious beliefs or commitments in ways that clash with rules against discrimination—for example, only hiring men for positions as preachers, firing employees or denying service to people not considered to live up to religious requirements, or denying insurance coverage for certain services considered as prohibited on religious grounds. Acts or activities by religious communities or organizations can also clash with public health concerns (e.g., religious gatherings for worship or prayer during COVID-19 lockdowns) or other applicable rules (e.g., regarding the content of school curricula for subjects such as biology).

In summary, there are two main framings of debates about religion, one as a matter of relations between spheres and the other as a matter of normative claims regarding acts or activities. But whether religion is seen as a sphere or a type of activity, what counts as religion is not given is but itself a matter of discussion. The difference between the two framings is primarily a matter of focus and the kind of considerations they make central. The relation-between-spheres framing focuses on what is supposed to characterize the kind of sphere, whether it is the kind of justification for which reasons are appealed to, the types of institutions, or the specific types of spaces at stake. The acts-or-activities framing rather focuses on the type of acts and the reasons for and against them. The two framings are not mutually exclusive. There are even cases in which the same discussion can be framed in either way, or the two ways of framing the debate compete with each other. Debates about religious symbols, for instance, can easily be framed both as a matter of the role of religious symbols in specific public spaces and as a matter of the religious freedom of individuals to manifest their religious beliefs. But even in such cases, the framings will direct attention to different aspects and considerations. If a debate is cast as one about religion in public space, the central consideration will be what is meant by public space and what are the other considerations relevant to regulating public spaces. If the debate is rather cast in terms of religious freedom, the main focus will be on how displaying a given religious symbol is a religious act, how it relates to the beliefs of the individual in question, and what the legitimate limits are for the individual’s freedom to manifest their religion.

The remainder of this article sketches some of the main debates exemplifying different versions of the two framings. The discussion is inevitably selective and far from exhaustive. It focuses on the issues specific to debates about religion, including how they raise the issue of what counts as religion. Debates covered extensively elsewhere are given less space here. This is the case for the first debate, namely the public reason debate, which is nevertheless included because it provides a good illustration of how the issue of what counts as religion is presented and can be addressed.

Religious Reasons in Political Justification

John Rawls (1993) famously articulated the idea that the legitimacy of political coercion requires that the state acts on the basis of reasons which are public. The basic idea is a liberal one, according to which persons are free and equal, and state coercion, in the form of any laws or rules imposed by the state, therefore should be justifiable to them. The question, then, is what justifiability means here. One part of this question concerns what counts as legitimate reasons for the purpose of political justifiability. Rawls’ idea was that because persons are free and equal, they are bound to disagree on a number of issues, including questions about values. Such reasonable disagreement means that state coercion cannot be justified with reference to values. Rather, justification has to appeal to what Rawls called a political conception of justice, which comprises principles that reasonable persons can agree on despite their disagreements about values. Reasons appealing to such a political conception are public reasons, which means that all reasonable persons can recognize them as legitimate reasons.

For present purposes, the interesting thing about the public reason debate is that religious reasons are often considered the prime examples of non-public reasons, which are therefore inadmissible as part of political justification. A clear example of this is Robert Audi’s (2011) version of the doctrine, which simply distinguishes between religious reasons and secular reasons. Rawls’ (1993) version of the doctrine is more nuanced because he is clear that there are many non-public reasons that are not religious—for instance, reasons that appeal to controversial ethical views such as Mill’s utilitarianism or Kant’s metaphysics of morals. But Rawls is clear that appeals to religious reasons, whether in the form of appeal to scripture, revelation, or other religious authorities, are non-public.

The public reason debate has developed in important ways since these early statements, including whether public reason requires a kind of consensus or whether it is sufficient that different people converge on the same rule or principle for different reasons (for an overview, see Wall, 2022; for a general discussion, see Billingham & Taylor, 2023). In relation to the issue of religion, Cécile Laborde’s (2017) discussion is the most relevant development. She argues that “when the state appeals to the authority of a particular God, non-adherents are coerced in the name of reasons that they do not understand and cannot engage with: They are not respected as democratic reasoners” (p. 112). This is a kind of epistemic wrong. When justifying state coercion, state officials therefore cannot appeal to reasons that are not generally accessible. In adopting an accessibility requirement, Laborde disagrees with both inclusivist theorists such as Gerald Gaus and Kevin Vallier, who advocate an intelligibility condition according to which reasons for laws should merely be understandable in relation to the specific doctrine or epistemic standards of the speaker, and exclusivist theorists who adopt a more exacting shareability condition according to which reasons for laws must be endorsed according to common standards.

Although one can disagree with Laborde’s (2017) specific way of cashing out the publicity requirement (for discussion, see Billingham, 2023; Lægaard, 2020a), what is interesting here is that it is an open question whether religious reasons pass or run afoul of this requirement. If publicity only requires accessibility, it seems that some religious reasons might be public—for example, appeals to the dignity and equality of all human beings whether or not such appeals are in turn based on an idea of creation or divine grace. At the same time, it seems clear that some nonreligious reasons, such as deep ecological ideas about the biosphere or appeals to White supremacy based on some understanding of race, might be inaccessible and hence non-public (however, for a case for why public reason should be understood in exclusivist terms, see Bardon, 2018). This is thus an illustration of Laborde’s general disaggregation approach, according to which it is not the category of religion as such that marks the relevant difference. Rather, in this case in relation to the issue of political justifiability, it is the distinction between accessible and non-accessible reasons, and this distinction is orthogonal to ordinary distinctions between religious and non-religious reasons. This in turn implies that one does not need a definition of religion to assess whether a reason is public.

The public reason discussion is a clear example of the relation-between-spheres framing of debates about religion. Whereas early versions of the debate took the relevant spheres to be religious and secular reasons, Laborde’s (2017) developed version of the public reason view is that the relevant spheres are accessible and non-accessible reasons and that these two spheres of reasons are not co-extensive with secular and religious reasons. It is nevertheless clear that many religious reasons will be inaccessible and hence non-public. The view thus provides a constraint on appeals to religious reasons in political justification, but one that is not premised on religious reasons being special in any unique way. It is furthermore important to note that the relation-between-spheres framing of this debate is not accidental. This debate about religious reasons in political justification cannot easily be framed in terms of religious freedom or discrimination. This is because it is not concerned with a specific religious type of act or activity. The activity in question is the general one involved in providing reasons for political action. The considerations relevant to political justification furthermore concern general views of what it means to respect persons as free and equal and how political coercion can be compatible with such respect, rather than concerns specific to the manifestation of religious beliefs.

The Relation Between Church and State

The second type of debate within the relation-between-spheres framing concerns religion in relation to institutions. The central distinction here is accordingly between religious institutions and the state. The classical version of this debate is about state and church and whether there can be an established church. Establishment denotes institutional links between state and church (Lægaard, 2017), such as state support for the church or secured places for representatives of the church in state functions (e.g., the British House of Lords).

To say that debates about establishment are about institutions means that they are concerned with systems of rules that are recognized by and regulate both how people behave and how they understand themselves. This can be at an explicit and formal level, such as statements about state support for a specific religion in a constitution or in legislation assigning roles to religious organizations, or it can be more informal, such as practices of involving religious organizations or their representatives in state policies. Establishment can furthermore have both material and symbolic aspects and effects (Lægaard, 2017; Modood & Thompson, 2023). Material establishment denotes financial state support for a church or similar tangible beneficial links between state and church. Symbolic establishment denotes the other forms of links, including statements giving special status to a specific church and its religion; inclusion of symbols of this religion in state institutions; performance of religious ceremonies as part of state events such as coronations, opening of parliaments, and the like; or the presence of representatives of the church in state organs. Material establishment can have distributional effects (e.g., if the state funds or subsidizes the church) or other types of material effects (e.g., if the state legislates in ways that provide opportunities to the church that are denied to other religious communities or to nonreligious groups). Symbolic establishment can have symbolic effects by virtue of the message it sends about the status of the religion of the established church (for an empirical study of possible effects of establishment, see Perez et al., 2017).

There are many debates about establishment in political philosophy. At the most general level, the question is whether establishment is legitimate at all or whether there should rather be a strict separation of church and state (e.g., Audi, 2011; Eisgruber & Sager, 2010). A more nuanced discussion has emerged that seeks to distinguish between different forms and degrees of establishment in order to argue that liberal or moderate forms of establishment might be permissible (Bonotti, 2012; Brudney, 2005; Laborde, 2013) or even positively justified (Miller, 2021; Modood, 2016), whereas more comprehensive forms might not. One version of such a view is that although material establishment is likely to be illegitimate, mostly symbolic forms of establishment might be permissible (e.g., Laborde, 2013; Taylor & Maclure, 2011).

Another aspect of the establishment debate concerns whether establishment is of one religion, as in classic examples such as the Church of England, or several religions. This debate concerns both the theoretical understanding of what establishment is (i.e., whether it only denotes the assignment of special status and privileges to one religion above all others or whether it can encompass special status to several religions) and the normative question about whether some forms of establishment might be preferable to others. There are several possible models of establishment for more than one religion. One model is a multifaith establishment in which several religions have special status. The question then becomes whether all the religions granted special status have the same status or whether the privileging of religion by the state can take different forms for different religions—for example, what Tariq Modood (2013) calls multiplex privileging, which can take the form of multidimensional recognition of religion (Thompson & Modood, 2022). Another possible model of establishment is one of rotating establishment (De Vries, 2021a, 2021b) in which different religions are given special status at different times (for discussion, see Levey, 2021; Seglow, 2021).

The normative debate about establishment, and about the institutional relationship between the state and organized religion more broadly, concerns what reasons speak for or against institutional links. Because there has been a strong assumption in the liberal tradition in political philosophy that state legitimacy requires religious neutrality—an assumption supported by the idea of separation in the First Amendment to the U.S. Constitution and the French 1905 laïcite law—the main focus in these normative debates has been on reasons why establishment might be wrong. There is a general agreement in liberal political philosophy broadly speaking that forms of establishment involving limitation of religious freedom, differential treatment on religious grounds, or coercive enforcement of religiously based laws would be wrong. But such strong forms of establishment are in any case not in play in most liberal democracies. In Europe, the relevant questions about institutional links between state and religion rather concern whether the state can grant quasi-public status to organized religions to provide welfare services, as in corporate systems such as in Germany, or whether an established church with more symbolic roles can be justified, such as in England or Denmark. The question therefore is whether more moderate and limited forms of establishment that respect religious freedom and do not involve religious discrimination are permissible, or whether there might be normative objections even to purely symbolic establishment.

In debates about this question, the focus has been on what kind of wrong might be involved (i.e., what the normatively relevant aspects of establishment are) and then whether actual or possible forms of moderate establishment are wrong or might be permissible according to the relevant normative criterion. Laborde’s work again informs this discussion, both with the argument that classic positions in liberal political philosophy, such as Rawlsian political liberalism, are in fact indeterminate—that is, they do not provide a normative criterion for judging the permissibility of more moderate forms of establishment (Laborde, 2013; although see Seglow, 2017, who maintains a public reason argument against establishment)—and with the disaggregation of different aspects of religion, which makes it possible to focus on which of these might be relevant to the question about establishment (Laborde, 2017). Laborde’s view is that the relevant aspect of religion is how it functions as a social identity analogous to race, which might be a marker of vulnerability and single out groups for forms of discrimination or domination. Laborde (2017) argues that

symbolic religious establishment is wrong when it communicates that religious identity is a component of civic identity—of what it means to be a citizen of that state—and thereby deny civic status to those who do not endorse that identity, who are then treated as second-class citizens. (p. 129)

This is a version of a symbolic equality account (Lægaard, 2017; Seglow, 2017) that focuses on how establishment might involve an expressive harm in virtue of the message it sends about the status of citizens depending on their religious identity (classic statements of expressivist views are Eisgruber & Sager, 2010; Nussbaum, 2008). If this is the possible wrong-making feature of even symbolic establishment, then it is an objective account in the sense that establishment might be wrong even if members of a given religious group do not feel demeaned by establishment. The question facing such accounts is how one determines what an instance of establishment expresses (for proposals for operationalization of symbolic equality accounts, see Bardon, 2022; Farrah, 2022). It is then a further—and open—question whether specific forms of establishment are permissible or not according to such accounts; for instance, Laborde and Lægaard (2020) suggest that so-called vestigial establishment might be permissible, whereas neo-establishment will generally not be.

The contrast to such an expressivist and objectivist symbolic equality account is an alienation account (Lægaard, 2017), which rather views the normatively relevant feature of establishment as how it affects the ability of members of religious minorities to feel a sense of belonging to and identify with their polity. Such alienation accounts have been suggested by Brudney (2005) and Ahdar and Leigh (2013) and defended by Tariq Modood and Simon Thompson (2022). Modood and Thompson understand alienation as a form of othering, which is a social–psychological construction of identities as negative or inferior that is neither purely subjective nor purely objective. According to Modood and Thompson, alienation is the appropriate normative standard for assessing forms of establishment—that is, a normative standard according to which what matters is people’s ability to identify with their polity, rather than the one suggested by Laborde and Lægaard (2020), according to which what matters is that the state should treat all citizens as having equal civic status. This makes a difference for which kind of evidence is relevant to assessments of establishment. Modood and Thompson further argue that although alienation is the right normative standard for assessing establishment, the argument that establishment is wrong on this basis is empirically wrong, at least in the case of the United Kingdom because Muslims are in fact not alienated by Anglican establishment.

There are, then, several different accounts in play about what the relevant normative standard is for assessing establishment. But according to leading examples of both the symbolic equality account and the alienation account, some instances of establishment might turn out not to be wrong. Even if this is the case—that is, if some forms of establishment are permissible—there is still the further question of whether there are positive reasons in favor of establishment. The assumption in much of the debate has been that such positive reasons will be based on belief in a specific religion as the right one and accordingly will fail according to standards of public reason (e.g., Seglow, 2017). But David Miller (2021) has suggested a different kind of positive argument, according to which there might be secular and public reasons in favor of establishment. Miller notes that religion is potentially a dangerous and destructive force that can tear a society apart and argues that establishment can help guard against this because a state-sponsored religion is less likely to be radical and politically active. Miller accordingly proposes to view establishment as a possible way for the state to provide a public good, namely the public good of moderating the political role of religion in general. Laborde (2021) has acknowledged that there is some evidence for such an empirical argument, although there are also many possible counterexamples, ranging from Poland to Turkey and India, where closer relations between state and organized religion have had the opposite effect.

It is worth noting how the sense of religion at play in debates about establishment is different from that in other debates. Where religion in the debate about politics and religion is understood as a certain class of beliefs expressed in propositional statements that can then function as reasons in political justification, religion in the sense relevant to the debate on establishment is something else. Because establishment is about institutional links, the relevant sense of religion here is one of religion as an institutional fact (i.e., as a subclass of institutions). If one adopts either the symbolic equality or the alienation account, religion is further relevant as a social identity marker linked to such institutions. This means that there can be differences at the dogmatic level concerned with beliefs and reasons that do not register at all at the institutional and social level relevant to establishment debates, and vice versa. What matters for discussions of establishment is the categorization of some organizations as religious and the role this plays for the social identities of members as well as nonmembers. In many cases, dogmatic differences at the level of beliefs matter relatively little to institutions and social identities. This is also the case for Miller’s positive argument for establishment, which is concerned with the empirical effects of linking religion to the state rather than with the dogmatic content of religion.

It is also worth noting why establishment is a version of the relation-between-spheres framing. This is because the issue at stake is precisely one about which kinds of relations there should be between different types of institutions. One might wonder whether this issue could not be addressed on the basis of the right to religious freedom or the right against discrimination on religious grounds. The issue of establishment has sometimes been framed like this because this is how cases can best be understood from a legal perspective (e.g., the Lautsi case at the European Court of Human Rights, which was concerned with objections against mandatory crucifixes in Italian public schools; for a discussion of this case, see Pierik, 2022). But the issues at stake in the noted debates about establishment cannot be captured by appeal to the individual right to religious freedom or against discrimination. This is because the forms of establishment under discussion are precisely those moderate or liberal forms in which freedom of religion is assumed to be secure. So, if there is a potential problem with these forms of establishment, it cannot be captured in terms of freedom of religion (Laborde, 2017, p. 134; Miller, 2021). Furthermore, because establishment is about institutional links, it only has an indirect connection to acts and practices of religious observance that are protected by the right to freedom of religion. So, the institutional nature of establishment is, once again, about religion in a different sense than the one at stake in relation to freedom of religion and nondiscrimination to be discussed under the acts-or-activities framing.

Religion and Public Space

The third type of debate within the relation-between-spheres framing concerns the relation between religion and public spaces. One might immediately qualify this by distinguishing between two different issues, both involving religion and public space. One concerns manifestations of religion in public space, and the other concerns cases in which a space itself is religious and the question concerns how to publicly regulate this. There are several high-profile examples of both kinds of debates. These can in turn be divided into different types, depending on which sense of public space they involve.

As Simon Thompson (2019b, 2023) has noted, a pertinent distinction here is between two senses of public space distinguished by Chiodelli and Moroni (2014), namely “stricto sensu public spaces,” which are public spaces for general use such as public squares and streets, and “special public spaces,” which are spaces in which more specific public activities take place, such as public schools and hospitals. Debates about religion in stricto sensu public spaces furthermore divide into debates about religious dress and symbols worn by private individuals and debates about religious buildings and monuments. The classical debate about Islamic headscarves (Galeotti, 2002; Joppke, 2009; Laborde, 2008) is the most profiled example of a debate about individual religious dress in public space. The original version of this concerned the wearing of Islamic headscarves in French public schools (i.e., in a type of special public space), which according to an interpretation of the republican principle of laïcite should be free from religious symbols. A later development of this debate concerned the so-called burqa ban introduced by a 2010 French law, which banned the wearing of face-covering clothes in all public spaces—that is, also in stricto sensu public spaces. This law was the object of the case S.A.S. v. France, which went before the European Court of Human Rights in 2014. One highly discussed example of a debate about religious buildings in public space concerns the 2009 Swiss ban on the building of minarets (Laborde, 2022; Miller, 2016; Zellentin, 2014). One might finally point to debates about the presence of religious symbols in public spaces in the special sense—that is, where these are part of the official environment in a public institution. A famous example of this concerns the Lautsi case about mandatory crucifixes in Italian public schools, which went before the European Court of Human Rights in 2011.

The difference between cases concerning religious dress and individually worn religious symbols in stricto sensu public spaces and in special public spaces turns on whether the nature of the special public space makes a difference for the permissibility of religious manifestations. If the special public space has a function or purpose that would be undermined or inhibited by the presence of religious symbols, then there might be a reason for limiting religious symbols in such space, which does not carry over to a general reason also holding in stricto sensu public spaces. It is noteworthy how the reasoning in the original French debate on hijabs in public schools turned on how such schools were understood by some to be places for the formation of the republican citizen, which supposedly meant that it was necessary to ban religious dress because its religious nature would be divisive and thus undermine the creation of a shared identity as citizen. In this case, it was therefore the ostentatious religious nature of the hijab that was central. In the debate about the burqa ban, on the other hand, the arguments about the religious nature of burqas and niqab that initially dominated were excluded because a ban on such grounds would constitute a form of religious discrimination and violation of freedom of religion. The 2010 French law was instead framed as a ban on face-covering clothing, and it was justified not in any way involving reference to religion but, rather, with appeal to a principle of “living together,” which supposedly requires that one can see the faces of others (Lægaard, 2015). This means that the 2010 French law is not directly a ban on religious clothing as such. But even if one accepts this framing of the law, it can still be considered a potential violation of religious freedom or a form of indirect religious discrimination because it predominantly affects Muslim women.

Another variation of the debates about individually worn religious dress and symbols concerns the permissible forms of religious dress and symbols worn by civil servants while performing their public functions. Civil servants include teachers, police officers, and judges. Again, the issue is whether their role as civil servants would be undermined if they wore religious dress or symbols. One view here is that because the state should be religiously neutral and because civil servants represent the state, then civil servants should not wear religious clothing or visible religious symbols. This type of reasoning is analogous to the reasoning related to special public spaces, and for some civil servants, the civil servant role is linked to specific special public spaces, such as a school or a court of law. However, although the reasoning supporting a ban on religious dress or symbols for civil servants seems straightforward, it has been questioned. Levrau and Loobuyck (2020), for instance, argue that political liberalism, which is one of the main positions linked to religious neutrality, is inconclusive in the case of civil servants, and Lægaard (2019) notes how secularism understood as a doctrine of separation of politics and religion can require both exclusion and inclusion of religion in public spaces.

Turning to debates about religious buildings, there has been extensive criticism of the most prominent example, namely the Swiss minaret ban, which has been criticized on several counts, including how it fails to treat Muslims as full citizens and cannot be justified within public reason (e.g., Baycan & Gianni, 2019; Zellentin, 2014). Cases such as the Swiss ban concern stricto sensu public space. Just as in the case of the French burqa ban, to mount an argument why specific religious buildings or monuments should not be allowed, additional assumptions are needed regarding why they should be viewed as potential objects of a ban. David Miller (2016) has articulated such an argument based on a liberal nationalist idea according to which the culture or the historically dominant nation may legitimately be given a predominant place in public space. Part of Miller’s argument is that a ban does not violate any individual right to religious freedom. Therefore, the argument about such cases belongs within the relation-between-spheres framing rather than within the acts-and-activities framing. Miller further claims that the national majority has a right of religious precedence, which is a right to give special public status to the majority religion because its symbols and structures have played a constitutive part in national identity. However, even Miller thinks that an outright constitutional ban such as the Swiss one is not proportionate to the aim of religious precedence, and that it unjustly infringes on the equal status of Muslims.

It is noteworthy that Miller’s (2016) positive argument for religious precedence does not turn on anything specific about religion. The fact that certain religious symbols—in the Swiss case, minarets—allegedly do not fit with the national cultural character of public space is the reason why the state can legitimately limit the presence of such symbols, not the fact that they are religious. This is also evident in the criticism directed at Miller’s argument. Laborde (2022) notes how the Swiss minaret ban is a clear case of arbitrary majority domination turning on the role of religion as an assigned identity, which in these kinds of cases is analogous to race. A different type of criticism of Miller’s argument is presented by Thompson (2019a), who states that the liberal nationalist argument for majority religious precedence for internal reasons linked to the nature of public space must be much more constrained than Miller believes.

The second issue involving religion and public space concerns cases in which a space itself is religious and where the question concerns how to publicly regulate this. Many religious traditions assign special status to specific sites. The Temple Mount in Jerusalem is a particularly pertinent example because several religions hold the site as sacred (Broyde & Zeligman, 2021). This in turn leads to political issues about how the site should be publicly regulated in terms of access and use. As Jobani and Perez (2020) have documented, there are a variety of models for how such contested religious sites can be regulated, which they theorize in terms of different regimes of toleration—namely non-interference, separate and divide, preference, status quo, and closure. Whereas the particular problems concerning access and use related to such religious sites have to do with the beliefs of the members of the religions that consider the sites to be sacred, the models for regulation that can be used by the state to handle contested religious sites and the conflicts that the contestation can generate are in principle not specific to religious conflicts. This is accordingly a clear example of the relation-between-spheres framing, in which the object of regulation and the beliefs that give rise to the need for regulation are religious but the regulation itself comes from another, as it were, nonreligious sphere. This also exemplifies a point made by Laborde (2017), namely that, at least within liberal political philosophy, it is ultimately the state’s political prerogative to determine the boundaries between politics and religion. This contrasts with so-called church autonomy views (e.g., Laycock, 2008), according to which religion is a distinct and independent source of authority so that the relation between religion and nonreligion is a relation between opposed and, in principle, equal authorities, rather than the liberal view, according to which it is the legitimate state that sets the boundaries for religion.

It is evident that reasons, institutions, and spaces are quite different things. Nevertheless, debates such as the ones just mentioned all make use of the relation-between-spheres figure to conceptualize the debates and what is at stake in them. This means that it is the nature of religion, religious institutions, or religious spaces that is at stake in these debates. It also means that these debates are not first and foremost about individual rights or opportunities. This is different from debates that focus on specific religious actions or activities, which is the subject of the section on “The Right to Religious Freedom.”

The Right to Religious Freedom

Many debates about religion concern specific religious acts or activities, and the question is whether such acts or activities can be permitted. Examples include well-known cases such as those concerning religious dress, religious practices of animal slaughter without stunning, or gathering for worship or prayer under pandemic conditions. Such debates are most easily conceptualized in terms of religious freedom.

The terminology of religious freedom can cover different issues and so it is important to define its meaning. Religious freedom can simply denote the extent of opportunities to engage in religious acts or activities. The more religious acts or activities a person or group of persons can engage in, the greater their religious freedom in this sense. Religious freedom thus understood can in principle be measured, and the question is whether religious freedom is more or less limited. But religious freedom can also denote the right to religious freedom. Whereas religious freedom in the first sense is simply a descriptive matter about the extent of opportunities faced by someone, the right to religious freedom is a normative claim that implies duties on others. Whereas religious freedom in the first sense can be limited, the right to religious freedom can be violated, which implies that someone has not acted according to their duties and has wronged the bearer of the right. But not all limitations on opportunities to engage in religious acts or activities constitute a violation of the right to freedom of religion. Religiously motivated acts can, for instance, involve acts that are gender discriminatory and uphold patriarchal norms (Eisenberg & Spinner-Halev, 2005; Okin, 1999), so there can be reasons for limiting religious freedom stemming from other values, such as gender equality. Debates about religious freedom accordingly concern whether specific limits on opportunities to engage in religious acts or activities are legitimate, and thus not wrong, or whether they constitute a violation of the right to religious freedom.

The framing of such debates in terms of the right to religious freedom is unsurprising because there are legal rights to freedom of religion in most national constitutions or rights catalogs, as well as in international human rights conventions. The right to freedom of religion is thus a part of social and legal reality. From the perspective of political philosophy, the question is how one should understand the normative claims being made with reference to the right to religious freedom and whether these claims are justified or not. What is really at stake here is whether it is permissible to limit peoples’ opportunities to engage in specific kinds of religious acts and activities or not. If such claims are made with reference to a right to religious freedom, political philosophy can ask whether there is such a right, how it is then justified, and what the best justification implies for the normative claims at stake.

As already noted, there clearly is a legal right to freedom of religion. The philosophical question therefore is, What is the best philosophical understanding of the normative claims made with reference to this legal right? Such a philosophical account can take the form of an account of a moral right to religious freedom, which the legal right might then track more or less well. If the legal right tracks the moral right, then it is justified. If the legal right does not track the moral right, then this is grounds for criticism of the legal right. A philosophical account can alternatively eschew reliance on the idea of independent moral rights against which legal rights should be measured. Even if one rejects or is agnostic about the idea of moral rights, one can still discuss the normative claims raised with reference to legal rights. This can be done without reference to the idea of rights. One might, for instance, appeal to more fundamental philosophical ethical theories (e.g., consequentialist ethical theories) or theories of justice that are not rights-based (e.g., contractualist theories of justice). The question, then, is whether the normative claims at stake can be justified based on such theories. An alternative approach is to provide a philosophical theory of the rights in question that is not based on independent moral rights and that does not take the form of simple application of a general fundamental theory. Examples of such approaches include so-called practice-dependent theories of human rights (Beitz, 2009; Buchanan, 2013; Sangiovanni, 2017). In relation to the legal right to freedom of religion within the European Convention of Human Rights, where cases are often decided with reference to the so-called national margin of appreciation doctrine (Lægaard, 2015; Pierik, 2022), practice dependence approaches will often be better placed to capture the broader range of normative and pragmatic considerations that are in play in such decisions.

Debates about the justification of freedom of religion within political philosophy have focused on this in relation to a specific issue, namely the granting of exemptions (Vallier & Weber, 2018). Exemptions are a special case that requires theoretical guidance. Exemptions range from cases in which the right to freedom of religion is so clear that no limitations can be considered to cases in which the justification for limiting freedom of religion is so strong that it is legitimate to do so. The difficult cases are those in which a general law limiting religious freedom seems clearly justified but the question is whether specific groups should be granted exemptions from the law—for instance, on the grounds that the restrictions on their opportunities to engage in specific religious acts or activities would be disproportional. Such cases fall under what Brian Barry (2001) called the rule-and-exemption approach. They are prima facie difficult because it might seem that either the general law is justified, and then there can be no exemptions, or the case for exemptions shows that the general law is not justified after all. A philosophical theory of religious freedom thus must be able to explain what is at stake and provide normative guidance for how to decide such difficult cases. A theory that can do this will also be able to explain the easier cases—that is, provide guidance about when there can be no limits to religious freedom and when religious freedom can legitimately be limited.

Alan Patten (2017a, 2017b) has provided a helpful mapping of the main types of theoretical positions in these debates. Patten presents two main positions in the existing debates about religious freedom, which differ in terms of the underlying way of understanding and justifying religious freedom. One position is what Patten calls the No Burden view, which denotes views according to which religion is of special importance so that restrictions on religious conduct are pro tanto problematic. There is thus always a presumption against limiting religious freedom. Because this is a pro tanto consideration, the presumption can be overridden, but it is assumed to be weighty. It follows from the No Burden view that the only relevant consideration is the extent of limits on religious conduct. If a general law means that it becomes more expensive for religious believers to comply with their religious duties, this is a problem according to the No Burden view, even if one might think that it should be the responsibility of individual believers to bear the costs of their religious convictions (cf. Jones, 2020). The No Burden view will thus support exemptions but is not responsibility sensitive.

The other position described by Patten is what he calls the No Discrimination view. According to this view, there is no special presumption against restricting religious conduct. Rather, there is a general reason not to target or selectively accommodate any act or practice. This means that religious conduct cannot be restricted if similar conduct, either related to another religion or of a nonreligious kind, is not restricted. But religious conduct can be restricted if this happens by way of a general law that also applies to other religions and to nonreligion. No Discrimination is accordingly an equality principle and one that will tend not to allow exemptions.

Patten proposes an alternative to both the No Burden and the No Discrimination views. His alternative view is called the Fair Opportunity view. It differs from the No Burden view in not assigning special status to religion and in not taking burdens on religious conduct to be necessarily problematic. Rather, Patten suggests that the relevant consideration is whether all persons have what he calls fair opportunity of self-determination. This requires that each person should be given the most extensive opportunity to pursue and fulfill their ends, including engaging in religious conduct, which is justifiable given the reasonable claims of others. Patten believes that the Fair Opportunity view differs from the No Discrimination view in allowing some exemptions and that it differs from the No Burden view in being responsibility sensitive.

Patten’s map of the positions regarding religious freedom is interesting because it presents a picture populated by both special rights positions and equality positions (see also Bardon & Ceva, 2019). One reason for this is that Patten’s discussion seeks to address the issue about whether exemptions are justified and, if so, on what grounds. As such, the positions he identifies provide relevantly different answers. However, this also means that Patten’s description includes both views on exemptions based on a right to freedom of religion and views based on considerations about religious discrimination. The latter is the object of the section on “Religious Discrimination.”

Laborde (2017) has provided another proposal for how to understand freedom of religion and the normative claims at stake in discussions of exemptions. Laborde argues that claims for exemptions should be understood in terms of what she calls integrity-protecting commitments (IPCs), where integrity is an ideal of congruence between one’s ethical commitments and one’s actions. Integrity is a value independent of religion. But religious duties are part of the ethical commitments that can be relevant on such a view. People have a claim that their IPCs be protected if laws and regulations impose a disproportionate burden on their pursuit. Laborde’s integrity-based view is both similar to and different from the No Burden view as described by Patten. It is similar in the sense that it takes burdens on religious freedom to be problematic as such, insofar as they are related to IPCs. But it is different because it is not a special right for religion. It is rather an example of Laborde’s general disaggregation approach, which seeks to pick out what is normatively relevant in discussions about religious exemptions and which views religious commitments as a part of a broader ethically salient class of IPCs. If one believes that integrity is important, this provides a justification for the normative claims at stake in relation to freedom of religion, including claims for exemptions (for discussions of integrity-based views, see Bou-Habib, 2020; May, 2017; Seglow, 2023,).

Both Patten and Laborde offer accounts of freedom of religion and religious exemptions that do not take religion as such to be special. Patten and Laborde both think that there can be justifications for religious exemptions. But neither Patten’s Fair Opportunity view nor Laborde’s integrity-based view take religion to be special in some sense that then justifies exemptions. What matters is, respectively, the fair opportunity for self-determination and protection of integrity. This means that the acts and activities that can enjoy protection, and for which exemptions might be justified, are so irrespective of whether or in precisely what sense they are religious. The approaches of both Patten and Laborde are individualist and refer to the interests of individuals in self-determination or integrity. However, many religious claims for exemptions are now made in the form of corporations, such as in the Hobby Lobby U.S. Supreme Court case, in which a private for-profit company sought and got exemptions from employer payments to health care coverage on religious grounds (Schwartzman et al., 2016). On individualist views such as those of Patten and Laborde, such cases of corporate exemptions are more difficult to justify.

The discussion of exemptions is only one part of the debate over limits to religious acts and activities. The focus on exemptions is unsurprising because the question whether to uphold a general rule and then grant some groups exemptions from the rule raises the stakes and makes the issue particularly visible. But exemptions are not the only way in which one can make room for religious acts or activities. Exemptions are a subcategory of the broader category of accommodation. Religious acts or activities can be accommodated by granting exemptions from general rules, but they might also be accommodated by changing the rules so that they are no longer in conflict with the religious act or activity in question (for discussions of accommodation more generally, see Bardon & Ceva, 2019; Jones, 2020). The right to religious freedom is one way to justify exemptions and accommodation more generally, but as noted, there can also be other types of justifications. The most prominent of these other justifications for accommodation is the appeal to nondiscrimination and equality more generally.

Religious Discrimination

Within the religion-as-acts-and-activities framing, another issue concerns religious discrimination. Discrimination in the generic sense is when people in one group are treated differently (and usually worse) because of some property they possess or are thought to possess (Lippert-Rasmussen, 2014, p. 15). Group discrimination occurs when differential treatment is based on the property of being a member of a certain socially salient group, where a group is socially salient if perceived membership of it is important to the structure of social interactions across a wide range of social contexts (Lippert-Rasmussen, 2014, p. 30).

Religion can connect in different ways to discrimination (Lægaard, 2018); religion can be both the object and the subject of discrimination. In the former case, people are discriminated against based on being members of a religious group (e.g., if Muslims are denied jobs because of their religion). In the latter case, people are discriminated against for religious reasons (e.g., if women are denied access to specific jobs because of a religious belief that these are only open to men). Discrimination can be direct or indirect, depending on whether the differential treatment is intended or a side effect of a general rule. Although there are many examples of direct religious discrimination—in the sense of both discrimination against people because of their religion and discrimination against people for religious reasons—the most difficult and theoretically interesting issues about religious discrimination in either sense concern the indirect variety. This is both because indirect discrimination is more complex and because indirect discrimination is involved in many cases of accommodation and exemptions.

Examples of indirect discrimination (Jones, 2020, pp. 191–193) concern cases in which a general and neutral (i.e., not directly discriminatory) law or rule differentially affects different groups. In relation to religion, examples of such rules are requirements that rule out religious forms of dress (e.g., to make employees wear a uniform or conform to sanitary requirements) or animal welfare legislation requiring stunning before slaughter, which rules out religious forms of slaughter such as kosher and halal butchering. The question is then whether the law or rule serves a legitimate aim and whether it is a proportional means to that end or not. Cases such as this can give rise to exemptions if the general rule has a legitimate aim but if the differential impact on some groups is not proportional to this aim.

It might seem that cases such as this are very similar to the cases discussed in the section on “The Right to Religious Freedom.” However, where freedom of religion concerns the freedom to live in accordance with one’s religious beliefs (i.e., a religious good), Peter Jones (2020, p. 177) argues that religious indirect discrimination law protects nonreligious goods such as having a job, which means that the distribuend is not religious. Religion rather enters the picture in relation to indirect discrimination law because a given law or rule affects people with certain religious beliefs differently than other people.

According to Jones (2020, p. 192), although indirect discrimination law is clearly motivated by concerns for fair equality of opportunity, there are limits to the role that equality plays. In cases in which the aim is legitimate and the rule proportionate (e.g., when sanitary requirements that rule out religious forms of dress or facial fair in specific job functions are judged necessary), differential treatment is justified even if it means that religious people do not have the same opportunities as others. And in the assessment of proportionality in the individual case, equality again plays an insignificant role. Patten would view indirect discrimination law differently because it would fall under his proposed Fair Opportunity view (see the section on “The Right to Religious Freedom”). But Jones and Laborde might respond that fair equality of opportunity is not the basis for determining when indirect discrimination is wrongful or not; rather, fair equality of opportunity (and associated judgments about when people should bear the responsibility for their beliefs) is an outcome of assessments of whether a rule is proportional or places a disproportionate burden on what Laborde (2021) calls the integrity-protecting commitments of religious believers.

One interesting aspect of many cases involving potential religious discrimination is that policies which might be forms of indirect religious discrimination are sometimes put in place to combat perceived discrimination for religious reasons. An example of such cases involving both potential indirect discrimination against religion and discrimination for religious reasons is the handshake requirements that have been introduced as part of naturalization ceremonies in some European countries. Such requirements have been justified partly on the basis that members of certain religiously defined immigrant groups, specifically Muslims, are thought to hold religiously motivated discriminatory views according to which men and women should not shake hands. Because such views are thought to be problematic (e.g., to run counter to national values of gender equality), requirements that applicants for naturalization must shake hands with the public official conducting the ceremony, who might be of the opposite sex, have been introduced in countries such as Denmark. Such rules will predictably affect some Muslims, who will be forced either to act against their beliefs or to not comply with the naturalization requirements. They are accordingly potential forms of indirect discrimination against Muslims. But they are justified based on an aim to combat discrimination on religious grounds. In such cases, two kinds of religious discrimination are accordingly set against each other, and either way of resolving such cases will involve allowing some forms of religious discrimination.

Which sense of religion is at play in relation to such discussions of religious discrimination? This is not a simple question. To the extent that Jones is correct that the good at stake in relation to indirect discrimination against religious groups is not a religious good, religion seems to enter these discussions in other ways. Religion can be a social identity, which is the basis for differential treatment. But this is mostly relevant to direct forms of discrimination because indirect forms of discrimination do not involve targeting of a specific religious group. Rather, indirect discrimination concerns cases in which the beliefs and practices of a group interact with general rules and policies in ways that differentially impact members of the group. Religion therefore enters such cases as beliefs motivating acts and as practices. The relevant feature of such religious beliefs and practices is that they make the people who hold the beliefs and act on them vulnerable in ways that others are not. On Laborde’s (2017) disaggregation approach, the relevant normative principle at play is therefore often that of equal treatment and citizenship. On her interpretive understanding of religion, the relevant sense of religion accordingly is an idea of minority status based on vulnerability to domination.

Religious discrimination involves acts and practices, so it is a clear example of the acts-and-practices framing of discussions of religion. But because religious beliefs also play a role in the sense just noted, one might wonder how this framing differs from the relation-between-spheres framing concerned with the role of religious beliefs in political justification. The main difference is that beliefs in the latter case are understood as having propositional content so that they can enter into justifications for and against policies. In relation to religious discrimination, beliefs figure either as direct markers of identity on the basis of which people can be targeted or as indirect elements of structures of vulnerability and minority status. Here, it is not the propositional content of religious doctrine that is relevant but, rather, social structures that are ascriptive and concern the effects of regulations affecting religious groups.

Further Reading

  • Cohen, J., & Laborde, C. (Eds.). (2016). Religion, secularism, and constitutional democracy. Columbia University Press.
  • Laborde, C., & Bardon, A. (Eds.). (2017). Religion in liberal political philosophy. Oxford University Press.
  • Seglow, J., & Shorten, A. (Eds.). (2019). Religion and political theory. Rowman & Littlefield.

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