Blog of the International Journal of Constitutional Law

Free Exercise and State Establishment Redux

I have already received a number of interesting e-mails related to my earlier post, from those writing about religious freedom more generally as well as those who know about Morocco more specifically. Before I turn to the next series of posts, I wanted to address some lingering issues related to my first post:

(1) One of the bloggers on our blog, Ran Hirschl, has a new book forthcoming in the fall on this and related topics. I have followed it with great interest during its creation and so it should be a wonderful book.

(2) I did not mean to (as several commentators noted) give a full-throated endorsement of the liberty/state establishment duality, even though my first post can certainly be read that way. I do not know enough about this topic to have that strong of a normative position. In my post, when I write about how “successful” this duality has been, I mean something more basic: that the prevelance of this duality has surely increased in the past generation. It seems to be much more common and “successful” as tested by the market of constitutional ideas and transplants. I am not as sure if it is normatively desirable.

(3) Of course, much of the evaluation of this duality has to do with the demographic composition of a country. When countries are religiously homogeneous–as the overwhelming majority of countries are not–then there might be opposition to the formal establishment of a religion because the minority religious group will be more numerous, potentially more powerful, and more able to voice objections. At the same time, of course, one has to wonder in those instances if the objection to the formal establishment of religion has much to do with the formal establishment of the religion by the state or simply being a sociological minority.

It was very clear in Morocco, for instance, that there was a Jewish minority, and it was relatively small and powerless. In two towns, I saw the “mella” (the Jewish quarter of town), which was both small and very poor even for a poor country. Even in large cities like Marrakech (with a population of over a million), there were only about 300 or so Jews remaining, and by and large they were the Jews too poor or powerless to leave early. If the mella was larger and somehow more powerful, the duality might be evaluated differently. At the same time, I am not sure that the state establishment of Islam in Morocco was of anywhere near the relevance to the Jews in the mella in Morocco as was the fact that the country was 99 percent Muslim.

Which leads me to point (4) below….

(4) This leads me to a larger point, one I have wanted to make for a while and have made in discussing these topics with various colleagues: it is hard to have a universal theory of religon and constitutional law without taking into account state-society relations in a particular country or at a particular time. We can talk about “brining the state back in,” but how far back in the state is might matter quite a bit for any evaluation of religious liberty. The establishment of religion by the government–particularly in small amounts–might not that matter much in the United States because of the relatively smaller role the state plays in regulating society. In the United States, many key social functions have been delegated not just to private instiutions in general, but to religious institution in particular. Religious institutions have enormous control over marriage, over the provision of social welfare services, and so on. You can try and try to protect religious liberty by focusing on dis-establishing religion as practiced by the state, but unless you bring the state back in, dis-establishing religion as practiced by the state does not mean as much. By contrast, with a larger and more potent state (e.g. Western Europe), the degree of state establishment might matter a lot. Small differences in establishment matter more there because the state is so powerful.

Also, the legitimacy of the state might affect one’s evaluation of the establishment of religion. If the state is particularly respected, then state decisions have an outsized impact. In the United States, the state is not as respected or important as a symbol independent of its coercive and resouce capacity, so its messaging and expressive power is less. The reverse might be more true in places like Western Europe.

In this way, the United States might be very much like Morocco. In both places, the state does not matter that much. From my reading, the state in Morocco matters much more than in neighboring places, like Algeria or Mauritania, but not as much as in Western Europe. There surely is a state in Morocco, and it has a national presence that you would not see elsewhere. Even in remote villages in Morocco, I could see the new, notable and nice government buildings (with their signs often in French, indicators of the role that the French had in establishing the state in Morocco).

Because of these similarities between the United States and Morocco in terms of the power of the state, the decision to establish religion is of symbolic but not much practical importance because the state is less powerful. Also, the state has less reputational power, so its decisions might not have the outsized impact in the United States and Morocco that they might have, for instance, in Germany.



Leave a Reply

Your email address will not be published. Required fields are marked *