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Whose Crisis? Secular Liberalism, the Theocratic State and the Political Consequences of Privileging Religion for Multi-Religious States
Larry Catá Backer
Abstract: Religion has returned to the secular state; does crisis result? Conflating "godless communism" of the 20th century with the Westphalia state that sought to avoid sectarian conflict by separating the institutional state from the apparatus of religion, modern critics have long problematized the role of religion in modern "secular" states. This paper considers the issue of the "return" of religion from a comparative constitutional perspective. Its central premise is that where institutional religion is both protected and engaged in political life through which it seeks to harmonize institutional state and religious government, it tends to advantage a privileged religion in political life over its political rivals. It looks to the ways that blasphemy and apostasy laws and the incorporation of religious values skew the nature and application of the rule of law, the nature and limits of direct democracy, the relationship between apostasy and treason, the language of interpretation and the power to participate in that dialogue, and the role of the foreign or minority. The effect is especially pronounced in states formally organized on global secular liberal principles of neutral and tolerant process and values neutrality. It suggests a context for the insight, at the center of secular liberalism’s solicitude for religion, that where the apparatus of institutional religion seeks to enter into the political life of a state its religious beliefs ought not to be accorded any particular deference. It will suggest the nature of the shocks to the constitutional settlement of the U.S. constitution and its now misunderstood model of secularism, which touches on the It will conclude that for secular liberalism the price of preserving the privileging of the practices and autonomy of religion by the state is the disbarring of institutional religion (though not religious values) from organized political life. The alternative, privileging (institutional) religion and permitting it a broad institutional right to participate in politics, is very much in evidence abroad.
Once upon a time the relationship between religion and politics easy and well settled. While the religious establishment was formally distinct from the political apparatus of government, each organized according to its own logic, it was undisputed that every political unity was expected to have and could be legitimated only through an official religious establishment. But all that changed with the great wars of religion in Europe and accelerated with the establishment of the United States and Republican France in the late 18th century. “The result of this disestablishment is a deep and enduring deprivileging of Religion as a normative basis for decision making. Religion is relegated to object. As such, it is inconceivable to think of Religion as part of the grammar of law. “If an unspoken and irregular but nonetheless powerful prohibition excluding religion from public and especially legal discourse has been in effect for some time, then those of us who are interested in ‘law and religion’ need to pay attention to that phenomenon.”” Today, Western style democratic republics pride themselves on a normative structure for political organization grounded in the formal disestablishment of religion and protection of religious belief, practices, sensibilities and institutions within these democratic polities. In one form or another, this forms the basic template for national and international human rights, whether in national constitutions or in international instruments.
Yet the disestablishment-privileging project of secular liberalism is breaking down. There has been tremendous efforts over the last half century to re-privilege religion and religious values as an integral part of democratic discourse, while privileging the institutions of religions and religious belief within the organization of the state and its political life. Conflating "godless communism" of the 20th century with the Westphalia state that sought to avoid sectarian conflict by separating the institutional state from the apparatus of religion, modern critics have long problematized the role of religion in modern "secular" states. In addition, even as the last half millennium has seen the progressive detachment of religion from politics, it has also seen the rise of democratic states (and non-democratic theocracies) in which the core political and substantive values are grounded in the religious beliefs and practices of religion—that is of a dominant religion, and a growing movement to permit active participation of institutional religion in politics. Simultaneously, in both democratic Western style states and theocratic democracies, an equally strong movement has emerged that means to extend the traditional protection of religion against attack, even when religious institutions directly participate in political debate. Grounded in the West on the horrors of religious persecution of Jews in Europe, it has now become an instrument to protect usually majority religions in the political activities in many states. In the West it has been used more and more to insulate religion from criticism even as it more aggressively participates in political life as religion.
And thus a version of the existential crisis of secular liberalism, its angst, and the emergence of transitions away form the model. On the one hand Western elites continue to cultivate a broad solicitude for religion—not merely as individual belief but as an organized force with institutional life. On the other, it is increasingly willing to admit (or unable to prevent) the participation of religion in political life—but protected by the privilege of religion against broad in the give and take of political contests. At the international level this is evidenced in the continuing efforts to develop a consensus among the community of states that would constitutionalize religious solicitude in the form of prohibitions against insulting or blaspheming religion and its sacred objects and habits. At the domestic level, it is evidenced by a greater willingness to permit the secular state to be organized within frameworks of religious values.
This paper considers the issue of the "return" of religion from a comparative constitutional perspective. Its central premise is that where institutional religion is both protected and engaged in political life through which it seeks to harmonize institutional state and religious government, it tends to advantage a privileged religion in political life over its political rivals. It looks to the ways that blasphemy and apostasy laws and the incorporation of religious values skew the nature and application of the rule of law, the nature and limits of direct democracy, the relationship between apostasy and treason, the language of interpretation and the power to participate in that dialogue, and the role of the foreign or minority. The effect is especially pronounced in states formally organized on global secular liberal principles of neutral and tolerant process and values neutrality. It suggests a context for the insight, at the center of secular liberalism’s solicitude for religion, that where the apparatus of institutional religion seeks to enter into the political life of a state its religious beliefs ought not to be accorded any particular deference.
The interactions of blasphemy, democracy, hierarchy and religion, then, are the subjects of this essay. They serve as expressions of functional effects of privilege, especially in states formally constituted under global constitutionalist principles. At the center is the organized institutional expression of religion rather than individual expressions of religious belief autonomously applied to political participation and on the privilege accorded not to individual belief but to religious belief institutionalized within organized religious communities. Its object is to frame the existential dilemma of secular liberalism within the international normative house it has created by knitting together a series of related vignettes, each of which is meant to serve as a starting point for understanding the way that specific sorts of privilege tend to substantially change the political dynamics between religion and its rivals in a state’s political spaces. These are meant to frame issues rather than suggest answers. Part II considers the effect on rule of law when religion is privileged through the protections of blasphemy laws. The context is Pakistan and the highly controversial efforts to condemn a Christian peasant woman for insulting Islam and its Prophet. Part III then considers the effects of privilege on democratic foundations of Pakistan. Again the context is the blasphemy law and the assassination of a government minister who sought to reduce their privileging effects in Pakistan. Part IV then considers the similar privileging on the relationship between direct political action, the state and foreigners. Now the context moves to the Sudan and its interrelations with foreigners. Part V then considers the way that religious privileging may change the framework within which inclusion and exclusion from a political community is understood by examining the effects of privileging on the relationship between apostasy and treason. The context is Afghanistan and the efforts to condemn a man for conversion to Christianity. This is particularly significant because the Afghani constitution is in part a product of the Western intervention that replaced the Taliban regime with something else. Part VI moves to an examination of the effect of privilege on the ways in which constitutional and legal texts are interpreted and the constraints on those within the polity now legitimately able to engage in such interpretive projects. The context is Iran. Part VII brings the analysis back home to the West buy considering the ways in which these privileging mechanics may be finding their way into the debates over the extent of religious privileging and the use of that privilege by religion when it engages in direct political activity. That, of course, is the context in which one can better understand the crisis of secular liberalism and the contests over the relationship between religion and the state—the discourse moves from the original one, the way ion which the state could protect religion from itself and from other religions, to one in that considers the extent to which religion may keep its privilege and protection against attack even as it inserts itself, as religion, in the political contests central to the operation of Western democracy. Though the focus is on developments in Muslim majority states for the most part, it should be emphasized that this is not a situation unique to Islam. Indeed, other large well organized and dominant religious institutions, institutional Christianity and Buddhism, for example, have also begun to move in similar directions.
I end where I began, with the existential crisis of the West: “we are stuck on the horns of a dilemma of our own creation. We conceived of the separation of Church and State, of the treatment of formal Religion and its values as res at a time when religious consensus made these religious sentiments an unconscious and almost inextricable part of the legal dialogue. We have entered an age when this unconscious acceptance of underlying religious Christian norms is contested. . . . I suggest that this is a dangerous enterprise.” At the international level, it portends the dawn of a new normative framework to succeed that on which the American Republic was founded in the 18th century.
 W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs 2013-14 Immediate Past Chair University Faculty Senate, Pennsylvania State University. This paper was first presented for a panel entitled, “An Existential Crisis for Secular Liberalism at the 2013 Law & Society Association Annual Conference, May 31, 2013, Boston, Massachusetts. My great thanks to Mark Modak Truran, Mississippi College for organizing a great panel and for leading the lively discussion.
 Larry Catá Backer, Religion as Object and the Grammar of Law, 81 Marquette Law Review 229, 229-30 (1998) (citing in part Steven D. Smith, Legal Discourse and the De Facto Disestablishment, 81 Marq. L. Rev. 203, 227 (1998)).
 See, e.g., German Basic LawArts 1-20.
 See, e.g., Universal Declaration of Human Rights.
 Larry Catá Backer, Law: Benedict XVI and the Constitution of Political States Law at the End of the Day, June 30, 2007. Available http://lcbackerblog.blogspot.com/2007/06/law.html.
 Larry Catá Backer, Theocratic Constitutionalism: Buddhist Constitutionalism in Sri Lanka, Law at the End of the Day, June 1, 2008. Available http://lcbackerblog.blogspot.com/2008/06/theocratic-constitutionalism-buddhist.html.
 Id., 254.