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Religious Freedom Toolkit

Part III | Expanded Analysis

Category A | Frameworks

Topic 2 | Constitutional space

A primary goal of principled pluralism is to create “constitutional space” for diverse communities to live in peace and harmony. “Constitutional space” is a metaphor to illustrate the principled application of constitutional protections afforded religious freedom and other fundamental rights as they converge in the public square.26

Introduction

Religion or its equivalent has appeared in every known society, often as a dominating force or major contributor to a social vision.27 Ideally, religion serves several functions: giving meaning and purpose to life, promoting a defined moral code, reinforcing social unity, and motivating individuals to come together to promote positive social change.28 However, religion historically has also been a source of contention and violence. As religious studies scholar Charles Kimball states, “more wars have been waged, more people killed, and more evil perpetrated in the name of religion than by any other institutional force in human history.”29

Because of religion’s dominant role in society, religion almost always plays a formative role in pre-constitutional division and allocation of power.30 For this reason, many states drafted their foundational documents with “baked-in” provisions both reflecting and establishing the relationship between religion and state. In the eighteenth century, the rise of secular liberal ideas replaced theocratic states and contributed to “our modern conviction that faith and politics should never mix.”31 Despite—or perhaps in light of—such skepticism, “every constitution on earth deals with religion” in some facet.32 In any given state, religion may be viewed as a societal good that contributes to morality and social unity, a negative force that requires liberation to escape from, and/or a complex mixture of ideals and perspectives that must be considered in shaping constitutional protections of fundamental rights.

In today’s context of increasing contention and politicization surrounding religion, principled pluralism is a governance framework for living together with our deep (religious and other) differences, without requiring anyone to modify or limit their manifestations of belief more than is necessary for living together peacefully. A primary goal of principled pluralism is to create constitutional space for diverse communities to live in peace and harmony. Constitutional space is the principled application of constitutional protections afforded religious freedom and other fundamental rights as they converge in the public square. As Professors Cole Durham and Carolyn Evans explain,

"One role constitutions play is to define the extent to which the rights and structures of pre-existing religious and belief communities will be respected and/or limited within the legal order created by a constitution. Such considerations shape the constitutional framework for religious and belief communities, and the believing individuals [who] actually live under a constitutional order once it is adopted . . . ." 33

Constitutional space allows conflicting ideas to coexist in the public square, preventing various groups from laying sole claim to constitutional or legislative protections to silence their opponents.

Constitutional state-religion relationships  

Constitutional provisions shape the way religious organizations fit into society and interact with state governments. A constitution also determines how much space is available within any given legal system for conflicting ideas to coexist in the public square.34

Varying forms of state-religion relations can be thought of as comprising a spectrum or continuum, ranging from positive to negative state-religion identification.35 On one end is theocracy, where religion and state are intertwined and mutually reinforcing. On the other end is abolition, where the state prohibits religion entirely. Between is a range of regimes that exhibit increasingly greater space between religion and state36:

  • theocratic regimes,
  • established religion(s),
  • religious status regimes,37
  • endorsed or preferred religion(s) regimes,
  • cooperationist regimes,
  • accommodationist regimes,
  • separationist regimes,
  • secularist regimes, and
  • abolitionist regimes.38

Careful analysis of each type of legal system is useful in determining exactly how much constitutional space is available for conflicting ideas to coexist and be explored in the public square.39

Comparative analysis of constitutional space for freedom of religion or belief  

The scope of this Toolkit does not allow for detailed analysis or examples of every type of religion-state relationship embodied in constitutions throughout the world; however, a few notable examples are discussed below, to demonstrate varieties in the constitutional space created through national constitutions and state adherence to their provisions.

Iran is representative of a purely theocratic state. Following the 1979 Iranian Islamic revolution, which overthrew a millennium-long monarchy, Iran has been governed by an Islamic theocracy.40 The Preamble to the Islamic Republic of Iran’s Constitution reads in part,

"In the view of Islam, government does not derive from the interests of a class, nor does it serve the domination of an individual or a group. It represents rather the crystallization of the political ideal of a people who bear a common faith and common outlook . . . . Our nation, in the course of its revolutionary developments, has cleansed itself of the dust and impurities that accumulated during the taghuti [idol-worshiping] 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."41

Unsurprisingly, the constitutional provisions governing religious freedoms in Iran have laid the groundwork for an extremely hostile and suppressive environment for religious freedom.

Annual U.S. State Department Human Rights Reports42 and Religious Freedom Reports43 consistently confirm this, and the State Department has designated Iran a “Country of Particular Concern,” meaning Iran’s government allows or engages in “particularly severe” religious freedom violations.44

India has been a secular state since gaining independence in 1947. Its constitution does not grant special status to any one religion and provides all individuals and communities the freedom to profess and practice any religion, or to abstain from following any religion.45 The constitution also specifically prohibits discrimination on the grounds of religion.46 State legislation such as the Citizenship Amendment Act (CAA) and other provisions, however, have carved away the constitutional space in which religion and other fundamental rights converge in the public square in India.47 Thirteen of twenty-eight states have laws restricting conversion for all faiths, some states impose penalties for conversion, and some high courts dismiss challenges brought under these laws.48 Moreover, despite the constitutional attempt to separate church from state, numerous reports evince that government officials and police officers often engage in—or turn a blind eye to—acts of violence against members of religious minorities.49

India’s religious composition also refutes a long-held assertion that religious solidarity or homogeneity contributes to societal stability.50 Despite India’s religious homogeneity—with Hindus representing roughly 80% of the population51—religious freedom continues to worsen. In 2024, the U.S. Commission on International Religious Freedom (USCIRF) recommended that the United States designate India a “Country of Particular Concern.”52

From 1939 to 1975, Spain maintained “a very strong and exclusive established church” system, under General Franco’s authoritarian regime.53 Following the Second Vatican Council, however, Catholic leadership began pressuring Franco and his successor, King Juan Carlos, for greater religious freedom. In 1978, as part of its transition to a constitutional monarchy, Spain enacted a new constitution that officially disestablished the Catholic Church as the state church and guaranteed religious freedom, religious equality, and state cooperation “with the Catholic Church and other confessions.”54 Spain’s efficient, peaceful transition from an authoritarian establishment to a cooperationist religion-state regime within a relatively short span was a remarkable feat. While Spain’s new constitution and subsequent legislation have equalized the constitutional space among religious communities, minority religions continue to experience unequal treatment by the state relative to religious education in public schools, state economic cooperation, and other areas of concern.55

Creating constitutional space  

The scope and outer boundaries of freedom of religion or belief depend on constitutional language and interpretation. And in most societies, determining the extent of religious freedom is a major issue. No legal system gives people the unrestrained freedom to behave in “full compliance with their religious beliefs regardless of the harm this may cause.”56 Religious freedom typically collides with other fundamental rights, such as individual rights to nondiscrimination and government rights/authority to regulate land acquisition and use. Legislative and judicial response to these conflicts is crucial in determining whether and under what circumstances exemptions or contours should be crafted to protect religious freedom.

Critics of the constitutional space theory assert that written constitutions may be intentionally vague or imprecise, leaving legislators to fill in the gaps or judiciaries to piece together the meaning of the framers. This places fundamental rights at the mercy of popular politics or—perhaps worse—under the interpretation of unelected representatives.

However, the intentional use of broad terms ensures longevity and applicability over time. Additionally, the use of broad terms aligns with the principle of expressio unius57 in legal interpretation. This principle suggests that when specific items are enumerated, the resulting “list” of items is presumed to be exhaustive. When general terms are used and items are not explicitly enumerated, the list is understood to be expansive and inclusive of related, unmentioned items. Thus, the use of broad terms in constitutions suggests that the protection afforded religious freedom should be interpreted expansively.

Where manifestations of religion or belief would infringe other fundamental rights, limitations on manifestations should be narrow and principled. The International Covenant on Civil and Political Rights58 suggests that the following elements constitute a threshold in determining whether restrictions are warranted59:

First, a state must demonstrate that a proposed limitation is prescribed by law. This has come to mean not only that the limitation is firmly grounded in legal principles but also that it is consistent with the rule of law and is not arbitrarily motivated.

Second, a state must demonstrate that the proposed limitation serves a compelling state interest and is not motivated purely by animus. Typically, this is demonstrated when a limitation furthers a narrow set of legitimating objectives (e.g., public safety, public order, public health, or public morals, and the rights and freedom of others).

Third, and perhaps most importantly as a matter of application, a state must demonstrate that the proposed limitation is genuinely necessary and not merely convenient. If a less restrictive means is available to obtain the same end, the limitation is not appropriate.

Conclusion

Constitutional space creates a framework for pluralism, a set of political and legal norms that create space for people and communities to work out their beliefs and their moral and religious ways of living their lives. As U.S. founding figure James Madison observed,

"Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord by proscribing all difference in Religious opinions. Time has at length revealed the true remedy [to conflict]. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat [sic] liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State."60

Affording individuals of all religious influences and affiliations equal space and opportunities to voice their opinions and exchange ideas in the public square is the most promising solution for creating a peaceful and self-governing society.

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References

26. Toolkit Topic 2 (Constitutional space) was originally drafted by McKell McIntyre, 2023 ICLRS Summer Fellow.

27. ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW (Mark Tushnet, Thomas Fleiner & Cheryl Saunders eds., 2012), https://ebookcentral.proquest.com/lib/byu/reader.action?docID=1244632&ppg=1 (BYU Library link).

28. WILLIAM A. MIROLA, MICHAEL O. EMERSON & SUSANNE C. MONAHAN, RELIGION MATTERS: WHAT SOCIOLOGY TEACHES US ABOUT RELIGION IN OUR WORLD (2011).

29. CHARLES KIMBALL, WHEN RELIGION BECOMES EVIL: FIVE WARNING SIGNS 1 (2008).

30. ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW, supra.

31. Karen Armstrong, The Myth of Religious Violence, THE GUARDIAN (Sept. 25, 2014), https://www.theguardian.com/world/2014/sep/25/-sp-karen-armstrong-religious-violence-myth-secular.

32. W. Cole Durham, Jr. & Carolyn Evans, Freedom of Religion and Religion-State Relations, in ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW, supra, at 243, 243; see Religion Provisions in World Constitutions, ICLRS, https://www.iclrs.org/11983-2 (providing link to downloadable spreadsheet of religious provisions in world constitutions, which is incomplete and current through 2010).

33. Durham & Evans, supra, at 243.

34. PAUL T. BABIE, NEVILLE G. ROCHOW QC & BRETT G. SCHARFFS, FREEDOM OF RELIGION OR BELIEF: CREATING THE CONSTITUTIONAL SPACE FOR FUNDAMENTAL FREEDOMS 9 (2020).

35. See Durham & Evans, supra, at 246–47.

36. W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 121–29 (2d ed. 2019).

37. Id. at 126 (“In a number of countries, multiple religions have official status in the sense that at least portions of the religious law of different traditions are binding on those belonging to those traditions. For example, in Israel, India, and a number of countries with substantial Muslim populations, [the application of] personal law (typically including laws governing marriage, family, divorce, succession, and related fields) depends on one’s religious status.”).

38. Id. at 121–29.

39. See id. for a more detailed, nuanced discussion of the continuum of religion-state relationships.

40. THOMAS SCHIRRMACHER, IRAN: SUPPRESSION OF RELIGIOUS FREEDOM AND PERSECUTION OF RELIGIOUS MINORITIES 111 (2009).

41. IRAN (ISLAMIC REPUBLIC OF) 1979 CONSTITUTION pmbl. (revised 1989).

42. U.S. Department of State, 2023 Country Reports on Human Rights Practices: Iran, https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/iran.

43. U.S. Department of State, 2023 Report on International Religious Freedom: Iran,
https://www.state.gov/reports/2023-report-on-international-religious-freedom/iran.

44. Countries of Particular Concern, Special Watch List Countries, Entities of Particular Concern, U.S. DEPARTMENT STATE, https://www.state.gov/countries-of-particular-concern-special-watch-list-countries-entities-of-particular- concern (last visited Dec. 2024)

45. INDIA 1949 CONSTITUTION art. 15 (revised 2015).

46. Id. art. 25.

47. Jason Klocek, Combating Religious Discrimination in India and Beyond, U.S. INSTITUTE OF PEACE (May 13, 2020), https://www.usip.org/publications/2020/05/combating-religious-discrimination-india-and-beyond.

48. U.S. Department of State, 2023 Country Reports on Human Rights Practices: India 74, https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/india.

49. Id. at 72; U.S. Department of State, 2023 Report on International Religious Freedom: India (unpaginated), https://www.state.gov/reports/2023-report-on-international-religious-freedom/india.

50. See W. Cole Durham, Jr. & Elizabeth A. Clark, The Place of Religious Freedom in the Structure of Peacebuilding, in THE OXFORD HANDBOOK OF RELIGION, CONFLICT, AND PEACEBUILDING 281, 284 (Atalia Omer, R. Scott Appleby & David Little eds., 2015) (“For much of human history, it was assumed that religious homogeneity was a necessary ingredient of social peace. Religion provided a kind of social glue holding society together, providing legitimacy for social institutions and vital incentives (in the form of eternal rewards or punishments) for voluntary compliance with social norms. Dissenters constituted the ultimate threat to social order, breaching vital standards of loyalty and raising the risk of civil war.”)

51. U.S. Department of State, 2023 Report on International Religious Freedom: India, supra.

52. U.S. Commission on International Religious Freedom, 2024 Annual Report 2 (2024), https://www.uscirf.gov/sites/default/files/2024-05/USCIRF%202024%20Annual%20Report.pdf.

53. DURHAM & SCHARFFS, supra, at 131.

54. SPAIN CONSTITUTION § 16(3) (1978) (revised 2011).

55. Javier Martínez-Torrón, Religious Freedom and Democratic Change in Spain, 2006(3) BYU LAW REVIEW 777, 802– 05 (2006); see also DURHAM & SCHARFFS, supra at 131.

56. ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW, supra, § 19.5.

57. Expressio unius est exclusio alterius (The expression of one thing is the exclusion of the other.).

58. International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 993 U.N.T.S. 3.

59. See id. art. 18(3). These elements are essentially mirrored in Article 9(2) of the European Convention on Human Rights, in European Court of Human Rights jurisprudence interpreting the European Convention, and in U.S. Supreme Court jurisprudence interpreting the U.S. Constitution’s First Amendment.

60. James Madison, Memorial and Remonstrance Against Religious Assessments, [ca. 20 June] 1785, NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Madison/01-08-02-0163 (last visited Dec. 2024).