Wednesday, September 28, 2011
At the Immanent Frame blog, Amanda Kaplan links to Douglas Remy's review and discussion of Winnie Sullivan's (2005) book, The Impossibility of Religious Freedom, and how it relates to the discussions and debates about international religious freedom. The basic challenge, in Sullivan's view -- that is, the reason why "religious freedom" is "impossible" -- comes from the proposed fact that the would-be guarantor of religious freedom, i.e., the secular state, "cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from 'making laws respecting an establishment of religion.' In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion." As many MOJ readers will know, this diagnosis leads Sullivan to conclude that "religious freedom" is best protected simply by protecting equality.
Like my fellow-blogger Tom Berg, I don't think this (i.e., just protecting equality) is enough, and I'm do not agree that the difficulties which certainly attend the necessary task of "defining" (for legal purposes) religion make it "impossible" for the state to meaningfully, even if imperfectly, protect religious freedom. (FWIW, I reviewed Sullivan's book, and some others, in Commonweal a few years ago.)