The Messy State of Religious Freedom
Canada’s Office of Religious Freedom (ORF) has launched at a time when the right it seeks to promote and protect is under intense scrutiny. It has been suggested that Ambassador Andrew Bennett, the inaugural head of the office, will need to very carefully measure his words given the diverse interests housed in the Department of Foreign Affairs and International Trade that oversees the ORF. One concern appears to be the possibility that ORF criticism of religious freedom violations abroad might alienate key trading partners for Canada. Even more troubling, though, are fears that trade relations or other matters of diplomacy might cause Ambassador Bennett to temper his voice in a way that could undercut the credibility of the office itself.
The establishment of the ORF has also been decried as unnecessarily and unwisely draining resources from conventional Foreign Service work in an attempt to “pander to domestic faith groups” who pine for a close relationship between religion and the state. Rather than defaulting to such an outmoded position, by seeking to amplify religious freedom, this argument suggests that the promotion and protection of a robust secularism would instead provide a more certain way to ensure that believers of all stripes enjoy maximum liberty.
What these critical perspectives do not question, however, is the significance that religion holds for Canadians in the formulation of laws and policies related to both domestic and foreign affairs. Perhaps leaning on Arnold Toynbee’s proclamation that religion “is the serious business of the human race” would be to press this point too far. However, even a cursory glance at the thick history of Supreme Court of Canada cases dealing with religion shows that religious matters hold clear public consequences, even if difficult to navigate as such. The recently proposed Charter of Values in Québec would appear poised to become another significant case in point.
Religion clearly matters to public life in Canada.
Furthermore, practical concerns about the impact of the ORF on Canadian trade interests abroad and theoretical concerns about the application of secularist theory to foreign affairs discourse suggest that religion also matters to the way we think about Canada’s role in international politics. José Casanova appears to agree in his essay “Public Religions Revisited” where he contends that the meaningful interactions to be found between world religions “in the global present” simply could not occur if religion itself was a truly private matter. Religion is public, and its significance to human beings reverberates on the international political stage just as it does domestically.
So if religion matters to public life both within Canada and abroad, why should one be sceptical of an office mandated with the promotion and protection of religious freedom?
Elizabeth Shakman Hurdwarns that religious freedom “is not something that can be imposed in a top-down fashion” by governmental authority. It instead needs to be “reimagined as a site of resistance against powerful authorities” by the grassroots campaigns of people attempting to live their everyday lives according to their religious convictions. Furthermore, she maintains that religion is a notoriously difficult term to define and relying on state authority to determine what counts as legitimate religious expression only exacerbates the issue. That is, under circumstances where the state officially engages religious actors as the ORF is mandated to do, the foreseeable outcome is that the state will then set standards that bolster those groups seen to be favorable to it and marginalize those that are not.
This issue is further problematized by Saba Mahmood who, in her essay “Religious Freedom the Minority Question, and Geopolitics in the Middle East,” looks at the legal codification of religious liberty as a “technology of modern governance” used to maintain “geopolitical and international legal order” under the unequal power relations that exist between Western and non-Western states. More than simply being afforded “a space of freedom and immunity” through the institutionalization of religious freedom as a principle, Mahmood argues that religious minorities are actually produced by this act of statecraft. As a result, those like minority groups who are “supposed to benefit most from the modern principle of religious freedom… are not merely protected from abuses of state power but are also transformed by virtue of their subjection to the calculus of state and geopolitical power in unique and unpredictable ways.” Religious freedom, in this sense, becomes a coercive tool of state power wielded abroad through foreign policies. According to Mahmood, codifying religious freedom in international law actually produces subjugated and marginalized groups by “suture[ing] religious identity to other forms of difference” and thereby destabilizing them through state action.
There are serious concerns, then, about promoting and protecting religious freedom as a human right and institutionalizing it in foreign policy initiatives and international legal instruments. But do these concerns outweigh anything that could be said in favor of institutionalizing religious freedom? Is there really nothing positive to be said about this beleaguered right and its institutionalized promotion and protection?
I want to briefly suggest that there just might be something positive to say, even if it is mostly to say that religious freedom is a positively messy right. Without dismissing the serious concerns raised by Hurd, Mahmood and others, my point here is to nevertheless press against an overly negative view of the institutionalization of religious freedom in both national and international human rights instruments or governmental policies.
To begin with, religion – while admittedly difficult (but not necessarily impossible) to define – provides alternative ways of thinking about freedom to those that dominate contemporary liberalism and the language of rights. The dominant view, it seems fair to say, is that freedom means the raw power to act. Oliver O’Donovan, an Anglican theologian from the United Kingdom, challenges this view in his book The Ways of Judgment by arguing that freedom should not only be conceived of in terms of the power to do what one wants, but also as the capacity to realize a social form (67-69). Contrary to typical Western or liberal notions of freedom, then, this might suggest that the wearing of niqab is in fact a form of freedom because it allows the Muslim women who wear it the freedom to actualize an expression of specifically female piety. To ignore this practice as an expression of freedom is, then, to submit to a monolithic and liberalizing view of freedom as the raw power to act rather than recognizing diverse understandings of this concept that contribute to an intentionally pluralist society. Without the promotion and protection of religious freedom in Canadian society, freedom itself is conceived (inaccurately) in homogenous terms and human society is, unquestionably, less diverse and multicultural than our national policies would suggest.
Second, protecting and promoting religious freedom understood more broadly is actually a way of protecting and promoting the exercise of freedom itself. If religious freedom helps us open up the concept of liberty to include the capacity to fill particular social forms as well as the power to act, then society has a broader basis of freedom than what appears to be a comprehensively liberal perspective that dominates today. This is what at least appears to be a primary concern of John Rawls when in “The Idea of Public Reason Revisited” he seeks to understand how a multiplicity of people with diverse and often conflicting perspectives can get along in a liberal society. To be sure, Rawls’s view of religion itself appears to have a deeply and comprehensively liberal perspective. But if his theory of liberalism is truly a political one, then viewing freedom as the raw power to act should be seen as one way of conceiving freedom that is supported by a theory and a community, which exists alongside at least another, if not a plurality, of other conceptions. Interpreting freedom solely as the raw power to act is simply unsustainable as a comprehensive position for a democratic society, even for essentially liberal ones.
This leads, finally, to agreement with the idea that the promotion and protection of religious freedom is itself a messy business, and one that might result in scenarios of unjust discrimination perpetuated by power differentials generated by both religious hierarchies and/or state power. What is less clear after considering various criticisms of the institutionalization of religious freedom, however, is how these scenarios are substantively different from adjudications between most other rights. Sexual freedom, for instance, has proven to be a messy right to promote and protect but there appears to be little traction to the idea that other human rights cover it sufficiently. In fact, the trajectory in Canadian law has been to not merely read sexual freedom into the Charter on analogous grounds, but to actually enshrine sexual freedom into the legal definition of marriage in Canada.
Likewise, if the “serious business” of religious freedom were to be somehow read as a “dead letter” in human rights instruments today, I think it would reflect poorly on Canadian legal culture. Religious freedom surely is as messy of a business as it is a serious one. As such, attempting to set it aside is likely to prove futile as future generations of Canadians will no doubt find a way to read it into the Charter out of sheer necessity.
Perhaps it is here that we find potential value in both Canada’s new Office of Religious Freedom and in the institutionalization of religious freedom into international human rights legal instruments. It helps us recognize that the implementation and adjudication of rights are indeed a messy business. Furthermore, this is not only okay, but crucial if we are to have a rich understanding of freedom itself in a world of such diverse peoples, devoted to or at least impacted by a variety of religious traditions. As John Courtney Murray contended in his twentieth-century analysis of American democracy, conflict is not absent from a well-ordered society, but it does have a particular characteristic. Rather than the clashes of the uninformed, a truly civil society is marked by individuals who are “locked together in argument in the full light of a new dialectical day” (24). The ORF is just one way of keeping the often messy dialogue about religious and cultural difference in this full light that Murray mentions; the more important matter is to keep that dialogue open and full of light. Hopefully the ORF, and Canadian society as a whole, is up to that task.