The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe (Center for Citizenship and Constitutional Government Series) - Softcover

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John Witte Jr. is Robert W. Woodruff Professor of Law, McDonald Distinguished Professor of Religion, and Faculty Director of the Center for the Study of Law and Religion at Emory University. He is the author of The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition and co-author of Religion and the American Constitutional Experiment.

Andrea Pin is professor of comparative law at the University of Padova, Italy. He is the author of The Legal Treatment of Muslim Minorities in Italy: Islam and the Neutral State and Religious Freedom without the Rule of Law: The Constitutional Odysseys of Afghanistan, Egypt, and Iraq and the Fate of the Middle East.

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Religious freedom protections have come a long way in the West. European countries that used to discriminate against or even to persecute religious minorities have embraced bold understandings of religious freedom. States with established churches, concordats, or neutral postures have similarly developed a significant awareness of the need that everyone’s religion is respected and protected. In the United States, the strong protection enshrined in the First Amendment of the Constitution has given life to a strand of cases that have enforced the two clauses of the Amendment throughout the States. As the First Amendment does not apply to private parties, the Congress as well as state legislative bodies have stepped in to protect religious freedom within private relationships.

The past three decades, however, have shaken these strong foundations. Increasingly religious and ideological pluralism has questioned the equilibrium that both Europe and the United States had reached. Alternative human rights and religious freedom agendas have triggered several cultural and legal clashes; the political and legal responses to these challenges, however, have not settled these disputes, but exacerbated them. The crisis of globalization and internationalism in the new millennium has both caused and reinforced nationalism, nativism, and state- or culture-centered narratives, which have fueled identitarian rhetoric and overlooked the needs of religious minorities. In Europe, international and supranational institutions also have often prioritized economic rights, the logic of neutrality, and shown some inclination to second-guess religious groups’ internal policies.

It is essential, in our view, that the core principles of religious freedom remain vital parts of Western constitutional life and are not diluted into neutrality or equality norms alone, and not weakened by too low standards of judicial review. It is essential that American courts address the glaring blind spots in their religious liberty jurisprudence—particularly the long and shameful treatment of Native American Indian claims. It is essential that European legislatures and courts take a deeper look at the consequences of facially neutral policies that unduly burden religious minorities. Both Europe and the United States should consider the growing repression of Muslims and other minorities at the local level more carefully than they often do.

It is also essential in our view to balance religious freedom with other fundamental freedoms, including sexual and same-sex freedoms, and find responsible ways of living together with all our neighbors. Europe and the United States have been dealing with the needs of religious minorities for a long time, and have only gradually come to a still imperfect modus vivendi. They will have to develop a comparable modus vivendi to deal with the needs of sexual, cultural, and linguistic minorities, as well as new immigrants, refugees, and other vulnerable parties. The increasing tribalism, xenophobia, and hostility among rival groups is particularly perverse, feeding mutually destructive strategies of defaming, demonizing, and destroying those who hold other viewpoints and lifestyles. In a rule of law liberal state, rival groups need to learn to live together as good neighbors, sometimes putting up high fences between them as needed.

(excerpted from chapter 20)