‘The Changing Terrain of Religious Freedom’

The following is an excerpt from “The Changing Terrain of Religious Freedom,” a volume of essays edited by Penn professors Heather Sharkey and Jeffrey Green. Copyright ©2021 University of Pennsylvania Press. All rights reserved.

The authors of most recent studies of religious freedom seem split between skeptics and believers; there does not seem to be much middle ground. If some view religious freedom as a posture, an agenda, or a myth, others see it as an incontrovertible human right, a sphere deserving special protection. This book tries to clear ground for discussion between the two camps by gathering essays that grapple with thorny debates and by acknowledging divergent positions.

Part of what makes religious freedom so difficult to grasp and achieve is that religion itself is so murky. What is religion, and what isn’t it? A matter of faith, belief, and inner conviction? A set of practices? A declaration of communal belonging? A connection to place—whether a piece of land, body of water, or site of veneration? Then, too, there is the question of how religion relates to God, gods, or no gods; to intermediaries like angels, bodhisattvas, and bear spirits; perhaps to objects like relics and crystals. Several commentators have noted the tendency in the United States, for example, to project normative Protestant Christian understandings of religion in ways that push other understandings aside. Disagreements and uncertainties about the nature, content, and practice of religion, quite simply, complicate efforts to wrangle with religious freedom.

Nonbelievers and “nones”—people who lack formal community allegiances—complicate discussions of religious freedom. One can belong to no church, for example, and still pray to Jesus; one can avoid eating pork, out of respect for the Jewish culture of one’s forebears, and yet reject the Jewish concept of God. All of these possibilities add subtlety and ambiguity to debates over what it means to have a religion, and to be religious, or not. They also make it harder to know how best to respect religion while also not subordinating the interests and concerns of the irreligious.

View large image

The impossible part of religious freedom may be the prospect of satisfying everyone. “Your rights stop at the tip of my nose,” a common expression goes; but what does that mean in practice? Balancing the claims of individuals, especially when they want exemptions (not baking a cake for gay people, for example, or not vaccinating a child), is hard to achieve when those claims collide with collective interests, run counter to public policies, or challenge the majority’s assumptions about how things should work. Religious freedom is a juggling act made more complicated when the objects being tossed keep changing.

The law looms large in discussions of religious freedom, but it has limits in how much it can do. Laws cannot cover or anticipate all situations. They often fail to make the stretch from the courts to, say, the school bus or classroom— especially when no sympathetic authorities are there to stand watch. Changing laws is one thing, but changing attitudes is another. The French historian Michel Winock appreciates this difference in explaining the persistence of antisemitism in modern France, reasoning that “discrimination [against Jews] disappeared from the law, but not from mentalities” in the century that followed the French Revolution. We can detect a similar disjuncture between changed laws and persistent attitudes by examining, say, the history of atheists in the United States, or the history of Christian, Jewish, and other non-Muslim minorities, such as Yezidis, in Iraq. For this reason, scholars should be careful not to privilege studies of law too much in the sphere of religious freedom: the law (or laws) can be abstractions. Seen in isolation, the existence of laws can mislead observers who want to understand how things are really working on the ground.

When we started the program that gave rise to this volume, we grappled with a question that placed the United States front and center: How exceptional has the United States been, meaning either exemplary in its own record of religious freedom or merely distinctive relative to the rest of the world? In response to this question, we can advance some conclusions.

The United States has been exceptional in the degree of its preoccupation with religious freedom. We can trace this keen interest to the longer history of European settlement by diverse and often nonconformist Christian sects, going back to 1620 when the Pilgrims disembarked from the Mayflower. Key thinkers in U.S. history reflected deeply on the issue, including James Madison, who witnessed the persecution of Baptists by Anglicans (Episcopalians) in Virginia, and Thomas Jefferson, who contemplated the separation of church and state. In the 20th century, U.S. courts waded into debates about the “establishment of religion.” The legal record attests to their efforts. Decisions ranging from West Virginia State Board of Education v. Barnette and Lyng v. Northwest Indian Cemetery Protective Association to Masterpiece Cakeshop v. Colorado Civil Rights Commission have responded to cultural debates over the place of religion in U.S. public life. Finally, in the late 20th century, at a time when immigration was making the U.S. religious landscape increasingly diverse (expanding the number, for example, of Hindus, Buddhists, and Muslims), legislators professed their commitment by framing acts, commonly known by acronyms such as IRFA, AIRFA, and RFRA, to enshrine or promote religious freedoms. These acts inspired state-level analogs across the country from Alaska to Florida.

And yet, while the U.S. government and the American people may have been exceptional in their preoccupation with religious freedom, the United States has not always been exemplary in its record of accommodating dissenters and minority groups. We can look to Philadelphia, the City of Brotherly Love and the hometown of the Andrea Mitchell Center, for illustrative examples. On the one hand, William Penn, who founded the city, welcomed people of various sectarian and religious persuasions. Eighteenth-century Philadelphia became home to a Sephardic Jewish synagogue and a Roman Catholic church, both still flourishing, located little more than a stone’s throw from what later became known as Independence Hall. On the other hand, in the 19th century, as waves of Irish immigrants flooded into the United States (many of them escaping famine), Philadelphia became home to a Protestant “crusade” movement that opposed the growth of Catholic communities. In 1844, in a part of the city that was a quick walk away from where the University of Pennsylvania then had its campus, Protestant agitators rioted against Irish Catholics and targeted the church buildings where they worshipped; scores of people died. The fact that rioters spared two nearby German Catholic churches points to the ethnic dimensions of this conflict. Anti-Catholic protest in the United States did not end with these events. As late as 1927, further to the northeast, in Queens, New York, the Ku Klux Klan led an anti-Catholic parade, which, again, largely targeted Irish people. These cases show how anxieties over immigration—blending nativism, xenophobia, and anxieties about competition for jobs—mixed religion into the brew. By pointing to the history of intra-Christian or Christian sectarian conflict in the United States, these cases also remind us of the need to approach history with nuance, and to question the nature and even existence of religious “majorities.”

Religious freedom is not a final achievement. Religious freedom is not even a concrete or tangible “thing.” Religious freedom is, instead, an idea, a process, and an aspiration. Thinking internationally, the theologian, philosopher, and human rights advocate Heiner Bielefeldt—a contributor to this volume—describes it as a set of options among which people can choose. Religious freedom, he adds, like religious identity for an individual, always amounts to a work in progress. Another of the volume’s contributors, Jolyon Thomas, who approaches his subject as a specialist in Japanese religion and cultural history, describes religious freedom as a set of arguments that are “born in moments of conflict and compromise.” Approaching the subject from the perspective of law, Douglas Laycock observes, in a similar vein, that “religious liberty is not needed when no one disagrees.” Debates over religious freedom are never a done deal. As Thomas remarks, “We invent them over and over again.”

In the autobiography that he wrote toward the end of his life, Thomas Jefferson reflected proudly on the Virginia Statute for Religious Freedom of 1786, which he had drafted. The statute, he observed, was “meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.” Jefferson’s universality remains inspiring for our day, and sets a high standard to follow in its inclusive vision of what religious freedom can mean.

Heather J. Sharkey is a professor in the Department of Near Eastern Languages & Civilizations in the School of Arts & Sciences at the University of Pennsylvania.

Jeffrey Green is a professor in the Political Science Department and director of the Andrea Mitchell Center for the Study of Democracy at Penn.

The text above is excerpted from “The Changing Terrain of Religious Freedom,” edited by Heather Sharkey and Jeffrey Green, copyright ©2021 University of Pennsylvania Press. Used by arrangement with the publisher.