Swiss Minarets and Dubious Constructions of Religious Freedom

An interesting aspect of the Swiss ban on minaret construction is the surrounding discourse on the nature and scope of religious liberty rights. This conflict goes to the heart of the question of whether religious liberty is defined from the departure point of the recognised doctrinal requirements of religion itself, or whether it is defined independently of determinate doctrine, and relates instead to the question of whether legal rules incorporate religious criteria. Do lawyers care about the position of minarets within the Islamic religion, and if so, why? This mirrors, to an extent, the debate surrounding the question of various Islamic garments, the question of whether they are in fact a compulsory aspect of Islamic practice, and therefore, one line of argument goes, protected by religious freedom principles. In the Times (London), it was suggested by Taj Hargey last week, for example, that since the construction of minarets is not a compulsory or essential facet of Islamic religious practice, the Swiss ban does not contravene religious freedom principles.

While the response of the ECtHR to such arguments would undoubtedly be interesting, the expression of such views is significant for what it reveals of the prevailing way in which religious freedom is conceived, in intellectual, media, political and popular circles. In one sense, it is a more expansive conception of religious freedom principles than others because it defines religious freedom from the departure point of the requirements of religion itself – hence the term, grating and clumsy, of “religious rights.” On this view, religious freedom means the freedom to act as required by a particular, identifiable religious tradition, a conception which may be used to justify exemptions, legislative or judicially-imposed, from generally-applicable or “neutral” laws which are not directed at religion per se. For example, we might look to the accommodations extended to Sikh men wishing to incorporate turbans within public service uniforms in jurisdictions, such as the United Kingdom and Canada, which vaguely tend towards some conception of normative multiculturalism. Such accommodations of religious objections within the scope of secular, neutral laws, are generally refused in jurisdictions with principles of constitutional secularism.

In another sense, however, this is a restrictive and ideologically conservative construction of religious freedom, because although it extends rights on the basis of religious doctrine, it may limit rights on the same basis. If religious freedom is the freedom to act as prescribed by a determinate or recognised doctrine – rather than freedom, say, from a law which incorporates a plainly religious criterion, such as the religious character of a building or garment – this precludes claims which fall outside the scope of what a public authority, such as a Court, determines as a claim which is sufficiently authentic, from the standpoint of a particular religion, whose doctrines the Court views itself as competent to ascertain and determine. Thus, the question of whether religious freedom encompasses the right to build a minaret, for example, is seen – at least in certain political and popular circles – as turning on whether it is an essential part of Islam, as determined by public authority itself, or some authority deemed as so competent within the particular religion. Similarly, the ubiquitous Tariq Ramadan has recently pointed out in Le Monde that neither the burqa and niqab are an essential requirement of Islam. This is to somewhat miss the point, if religious liberty is conceived as an individual right, which views individuals themselves to determine the truth of religious doctrines. This conception, tending to subsume the religious freedom rights of individuals within those of a group, as defined in some deterministic or quasi-essentialist way, sits uneasily with the idea of individuals themselves as sources of “self-authenticating” claims. Most significantly, it may be used as a pretext upon which to deny the right to the ostentatious manifestation of religious beliefs in public spaces, where these are judged both as unsightly and inconvenient to “social cohesion” – and as not coming within the recognised doctrines of a particular religion (one thinks of the proposal to full Islamic veils in public space in France, as well as the Swiss Minaret ban). Of course, the difficulty is that once religious liberty is moved beyond the axiomatic foundation of religious doctrine itself, there is no obvious means of consistently validating religious liberty claims: it is impossible to verify, never mind validate the content of individual conscience, without relying in some way on some doctrinal authority external to the person in question, thus raising the difficulties outlined above. One possibility is to wholly shift the focus of inquiry to the scope and criteria of the impugned law, and ignore the scope of the claimant’s belief altogether as a determinant criterion. On this view, while the legislator may not incorporate a plainly religious criterion by banning minarets specifically, this turns merely on the specifically religious object of the restraint, rather than on any doctrinal character of the object in question within a particular religion. Conversely, this might be used to argue that minaret construction might merely be made subject to generally applicable planning and construction regulations which do not, themselves, incorporate religious criteria, but with the minaret’s religious character according it no particular status vis-à-vis other edifices. Of course, this brings into play many difficulties surrounding the scope of ideas surrounding general applicability and “neutrality” which I cannot discuss here.

The United States Supreme Court has rather unambiguously  moved away from the conception of religious freedom discussed in this post since Employment Division v Smith 494 U.S. 872, instead insisting on criteria of general applicability and neutrality. However, this conception has arguably prevailed in Ireland, despite its meagre legislation and jurisprudence on religious freedom. An example is provided in the recent legislative regulation of the sale of Mass Cards, currently under challenge in the High Court, with the freedom to issue Mass Cards confined to those deemed as so competent according to the rules of the Church itself. I hope to re-visit this issue in a later post.