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Freedom of Religion or Belief - An International Law Commentary by Bielefeldt, Prof Heiner; Ghanea, Nazila, Dr; Wiener, Michael, Dr (21st January 2016)

The Underlying Principles of Freedom of Religion or Belief—Towards a Holistic Conceptualization

Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

From: Freedom of Religion or Belief: An International Law Commentary

Prof Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

Subject(s):
Religion — Freedom of association — Freedom of expression — Freedom of thought, conscience, and religion — Human rights remedies

(p. 1) The Underlying Principles of Freedom of Religion or Belief—Towards a Holistic Conceptualization

  1. I.  Complementary Fears 1

    1. 1.  Fear of Freedom 2

    2. 2.  Fear of Religion 3

    3. 3.  Human Rights and Transcendent Beliefs 3

  2. II.  Alternative Visions 5

    1. 1.  The Politics of Tolerance and Its Limits 5

    2. 2.  Projects of Post-Traditional Religious Unification 7

  3. III.  The Human Rights Approach: Empowering Human Beings 9

    1. 1.  Human Agency as the Basis of Religious Pluralism 9

    2. 2.  Believers and Beliefs 11

    3. 3.  Anthropocentrism? 12

  4. IV.  Respect for Human Dignity 13

    1. 1.  The Unconditioned Normative Status of Human Dignity 13

    2. 2.  A Particular Religious Heritage? 14

    3. 3.  Entry Point for Moral Perfectionism? 16

  5. V.  Towards a Universalistic Conceptualization 18

    1. 1.  Tendencies of Particularization 18

    2. 2.  Inclusive Application 18

    3. 3.  The Search for a Defining Line 19

  6. VI.  Freedom 21

    1. 1.  Dimensions of Freedom and Criteria for Limitations 21

    2. 2.  Individuals and Communities 22

    3. 3.  Freedom of ‘Choice’—an Inappropriate Term? 23

  7. VII.  Equality 24

    1. 1.  Diversity-Friendly Equality 24

    2. 2.  Formal and Substantive Equality 26

    3. 3.  Egalitarian Justification of Accommodation 27

  8. VIII.  Positive Interrelatedness with Other Human Rights 29

    1. 1.  The Holistic Understanding of Human Rights 29

    2. 2.  Neighbouring Rights: Freedom of Religion and Freedom of Expression 29

    3. 3.  Freedom of Religion or Belief and Gender Issues: Synergies and Conflicts 31

  9. IX.  The Role of the State 33

    1. 1.  Respecting, Protecting, and Promoting Freedom of Religion or Belief 33

    2. 2.  Disentangling State and Religion 34

    3. 3.  Conflicting Understandings of Secularity and Neutrality 35

  10. X.  Conclusion 38

I.  Complementary Fears

Human rights challenge legal privileges, monopolies of power, traditional gender roles, and cultural or religious hegemonies. No wonder that they often meet with opposition and at times fierce resistance. The right to freedom of thought, conscience, religion or belief is no (p. 2) exception. After its formal recognition in article 18 of the UDHR (1948), article 18 of the ICCPR (1966), and other documents, it continues to be exposed to controversies, political objections, and open or concealed attempts to thwart its consistent implementation.

1.  Fear of Freedom

How can religious issues, traditionally associated with notions of destiny and calling, become a matter of legally guaranteed personal choices? Should legal entitlements held by human beings actually trump religious duties that derive from a higher, divine source? Would this not mean to turn the natural order of things upside down? This type of question indicates a conservative reservation against freedom of religion or belief possibly based on fears of spiritual and moral decline. This may give rise to questions like the following: Will the modern priority of individual rights in the long run destroy all deeper sentiments of religious loyalty and respect for sacred values? Is freedom of religion or belief the driving force behind a process of thorough secularization, with the result that religious convictions cease to play a role in public life? Will modern rights finally steer us into Max Weber’s ‘iron cage’,1 i.e. a rationalized society administered by a professional bureaucracy but devoid of any profound commitment, meaning, and imagination? Weber himself feared that modern disenchantment would culminate in ‘a polar night of icy darkness’.2

To call freedom of religion or belief a challenge can be an understatement. For many traditional believers, this human right presents a provocation, which can cause anxiety, feelings of loss, and concomitant resistance. It is well known that the Roman Catholic Church, for more than a century, officially rejected religious freedom, a human right which Pope Pius IX condemned in his Syllabus Errorum as one of the errors of modern liberalism and a way ‘to corrupt the morals and minds of the people, and to propagate the pest of indifferentism’.3 The Catholic position changed thoroughly during the Second Vatican Council when the Church endorsed freedom of religion or belief in the Council’s declaration Dignitatis Humanae (1965).4 However, to assume that religious freedom has lost its provocative potential may be premature.

Although religious communities today display a broad variety of different attitudes towards freedom of religion or belief, ranging from full endorsement to reluctant accommodation to formal rejection, the idea that issues of faith become a matter of personal decisions in human rights remains disquieting for many believers. A practical test case is the treatment of converts and missionaries. Even communities which themselves engage in missionary activities frequently denounce those converting away from their own group as ‘apostates’ or demand State protection against ‘proselytism’, which in many countries is considered a punishable offence.5

(p. 3) 2.  Fear of Religion

While human rights have, from the very beginning, been exposed to scepticism in the name of ‘tradition’, attacks on freedom of religion or belief have increasingly also come from within liberal milieus. Mary Ann Glendon sees a ‘more subtle erosion of religious freedom in the liberal democracies of the west’,6 which she finds highly surprising. Objections against freedom of religion or belief may be based on the fear that this peculiar right could pave the way to ‘la revanche de dieu’,7 i.e. the re-emergence of religion as a powerful factor of public and political life. Even individuals generally committed to human rights sometimes voice mixed feelings when it comes to appreciating freedom of religion or belief, a human right perceived by some as a potential new entry point for obscurantism, bigotry, and fanaticism. Is it not a paradox to accommodate in the midst of a liberal society religious communities that preach obedience to divine commands? How can an egalitarian legal order tolerate religious communities which preserve a hierarchy between clerics and laypeople? And given the fact that religious traditions often support patriarchal values, does religious freedom not undermine precious accomplishments of gender equality and respect for diverse sexual orientations? Could this right in the long run perhaps become a pretext for destroying the ‘secular’ character of the State?

Such questions likewise reveal a sceptical view of freedom of religion or belief, a right which does not seem to fit easily into liberal emancipation and secular anti-discrimination agendas. Indeed, freedom of religion or belief is sometimes perceived as being ‘less liberal’ and ‘less egalitarian’ than other human rights.8 Assuming that human rights per definition are rights of equal freedom for everyone, some critics even question that freedom of religion or belief can legitimately claim the status of a human right in the first place. Do we actually need this specific right? Would it not suffice to rely on a combination of freedom of expression, freedom of peaceful assembly, and respect for privacy? Why should we not go back to the 1789 Declaration of the French Revolution which only marginally refers to religious freedom as a subcategory of freedom of opinion? Article 10 of the Declaration of Human and Civic Rights states that ‘[n]o one may be disturbed on account of his opinions, even religious ones’.9

3.  Human Rights and Transcendent Beliefs

While the two fears just sketched out obviously contradict each other, they share a number of characteristics. What they have in common, firstly, is that they both regard freedom of religion or belief with suspicion. Whereas traditionalists are typically concerned about the future status of religious values and norms in public life, liberals sometimes fear for the consistency of the secular legal order in religiously pluralistic (p. 4) modern societies.10 Sceptics from both camps may therefore wish to restrict the consistent application of freedom of religion or belief, which is a second common characteristic. Some may even try to replace the right to freedom of religion or belief by alternative concepts, which is a third common element. While traditionalists might prefer the fuzzy language of ‘tolerance’ which allows them to preserve existing religious hegemonies, followers of ‘fighting secularism’ may wish to go back to the 1789 Declaration in which freedom of religion or belief merely figures as a subcategory of freedom of opinion.

In order not to exaggerate the practical relevance of the challenges posed by the two positions one should add a fourth common characteristic: they both represent extreme positions to which only a minority of ‘religious traditionalists’ and ‘liberal secularists’ would subscribe. This is an important clarification. Apart from its formal recognition in legal documents ratified by the vast majority of States, freedom of religion or belief is actually widely appreciated by religious communities and faith-based organizations as well as by secular institutions and international NGOs.11 Quite a number of religious and belief communities, traditional and non-traditional ones, have endorsed religious freedom as an important modern accomplishment. At the same time, ‘secular’ civil society organizations likewise promote freedom of religion or belief, a human right often celebrated as the gateway to other freedoms, in particular freedom of expression, freedom of peaceful assembly, and freedom of association. Indeed, faith-based, humanist, and secular human rights organizations often cooperate hand in hand in promoting freedom of religion or belief alongside other human rights.

And yet, the complementary anxieties just sketched out deserve to be taken seriously. While coming from opposite angles, they jointly point to the complex nature of a fundamental right which opens up the human rights agenda for the articulation of profound convictions, doctrines, rules, rituals, and practices many (certainly not all) of which claim a transcendent (and in that sense ‘trans-human’)12 source. Are we confronted with insoluble contradictions in this field, or can we find ways of solving or at least mitigating possible contradictions and concomitant conflicts?

Due to the complexities involved, freedom of religion or belief is a complicated human right, exposed to many misunderstandings, controversies, and emotional conflicts. But this also makes it a fascinating subject. Beyond the practical significance which freedom of religion or belief has for combating discrimination, indoctrination, negative stereotypes, harassment of minorities, and persecution of dissidents, this human right also presents an opportunity to reflect on the meaning of crucial political terms like humanism, Enlightenment, modernity, liberalism, secularity, equality, and diversity. All these concepts remain controversial. Discussing them from the vantage point of freedom of religion or belief will not necessarily lead to a new consensus but can certainly contribute to an enhanced awareness of what is at stake in conflicting interpretations.

(p. 5) II.  Alternative Visions

Freedom of religion or belief is a systematic response—but not the only historical response—to atrocities such as expulsion of religious minorities, indoctrination and forced conversions, censorship and intimidation. In order to better understand the specific normative profile of freedom of religion or belief, it may be useful to compare the human rights approach to two alternative responses to violent atrocities in the area of religion and belief: the politics of tolerance and projects of creating a new, post-traditional religious unity.

1.  The Politics of Tolerance and Its Limits

Freedom of religion or belief should not be confused with pre-modern concepts of tolerance which usually operated within the framework of one hegemonic religion while at the same time accommodating some religious minorities.13 Already ancient empires, like the Persian, the Macedonian, and the Roman empires, showed a high degree of tolerance as part of their governance strategies to integrate subjected peoples by leaving them their traditional deities, saints, and rituals. Religious diversity could more or less freely unfold as long as it did not challenge the existing political power. Besides such pragmatic tolerance in handling pluralism, there may also be examples of more principled tolerance. For instance, the Buddhist king Ashoka is said to have practised a far-reaching tolerance based on his appreciation of the diverse paths to spiritual redemption.14

Later in history, Islamic empires generally tolerated pre-Islamic monotheistic religions whose followers enjoyed different degrees of collective religious and legal autonomy. At the same time, the priority of Islam was clearly maintained. The frequently cited Qur’anic verse ‘there is no compulsion in religion’ (Sura 2:256), which today serves as a reference point for Muslim reformers advocating a comprehensive understanding of freedom of religion or belief for everyone, traditionally was interpreted in a more restricted sense.15 While no one could be forced to adopt the Islamic creed against their will, those who had become Muslims for whatever reasons—birth, education, or conversion—did not have the option to abandon their religion. Moreover, the politics of limited tolerance typically did not include polytheists, atheists, and—least of all—post-Islamic religious communities often branded as ‘heretics’.

This traditional Islamic interpretation—which still resonates in the legal structures and political agendas in quite a number of Islamic countries today—shows a striking (p. 6) resemblance to medieval ideas of Christian tolerance as elaborated for example by Thomas Aquinas. Whereas the acceptance of the Christian faith by an individual should be a ‘matter of liberty’ Aquinas insisted that, once adopted, preserving the true faith would become a ‘matter of necessity’.16 He invoked the analogy of contracting a marriage or joining a religious order, which should be acts of freedom. Yet once these acts have been taken, he said, there are no legitimate ways of dissolving a valid marriage or leaving a monastery.17 The similarity to traditional Islamic thinking is obvious. To a certain degree Aquinas furthermore accommodated coexistence with adherents of other religions while clearly advocating the use of force against the influence of apostates and heretics on society. He thus demarcated the limits of the traditional Christian understanding of tolerance. Even after the Reformation, this attitude prevailed for a considerable time in Europe and was largely shared by mainstream Protestant churches many of which also disciplined dissidents and heretics.18

In the wake of uprisings, wars, and civil wars between Catholics and Protestants in early modern Europe, tolerance became more and more a question of physical survival.19 The peace conferences in Augsburg (1555) and Münster/Osnabrück (1648) established a modus vivendi between the conflicting religious parties within the broader framework of the German-Roman Empire, while at the same time corroborating the traditional connection between territory and hegemonic belief at the level of individual States. Pragmatic policies of religious tolerance embraced by ‘enlightened’ early modern rulers merely modified the unity between territory and dominant religion without moving away from the concept of an official State religion. This was true for the Edict of Nantes (1598) which, to a limited degree, accommodated Protestantism in France, as well as for the proverbial politics of tolerance in eighteenth-century Prussia which was largely driven by demographic, economic, and other utilitarian motives. Even the Patent of Tolerance issued in 1781 by Habsburg’s Emperor Joseph II, an ardent supporter of the ideas of the European Enlightenment, preserved the official status of the Roman Catholic Church which continued to hold the monopoly of public worship, whereas the followers of other denominations could practise their faith only in private.20

In the face of growing religious, philosophical, and ethical pluralism and concomitant tensions, however, critics of the politics of tolerance began to expose the problems of this concept. It was obvious that the politics of tolerance fell short of according equal respect to everyone across different religious or philosophical convictions. Even the more generous versions of tolerance reinforced an essential inequality between those following the official religion and those just being tolerated. Critics furthermore pointed out that rulers deciding on the acceptability or non-acceptability of religious or philosophical beliefs were guilty of arrogance. For instance, Thomas Paine attacked the politics of tolerance as (p. 7) an illegitimate intervention into a realm that should be strictly kept outside of any Government influence. What is wrong, he wrote, is that the politics of tolerance ‘by the same act of assumed authority by which it tolerates man to pay his worship, […] presumptuously and blasphemously sets itself up to tolerate the Almighty to receive it’.21 In his essay What Is Enlightenment? Kant ironically praised the Prussian King Frederic II for having declined ‘the arrogant name of tolerance’.22 During the deliberations of the revolutionary French National Assembly, Comte de Mirabeau made the following statement: ‘I have not come to preach tolerance.’ ‘The very word tolerance’, he went on, ‘strikes me as somehow despotic, because the existence of an authority which wields the power to tolerate infringes on freedom of thought, since those in power may decide to tolerate or not to tolerate.’23

2.  Projects of Post-Traditional Religious Unification

The most obvious shortcoming of the politics of tolerance was that it reinforced an inequality between the followers of the hegemonic denomination and those just being tolerated, a divide typically connected with different status positions, rights, and opportunities. The politics of tolerance was essentially anti-egalitarian. Projects striving for a post-traditional unification presented an alternative to this model. The purpose was to overcome the divide between religious communities by seeking for common denominators between the various denominations and giving priority to what they all seemed to have in common over any remaining differences.

An early example of a post-traditional theological unification project was Nicolaus Cusanus’ treatise De pace fidei, written shortly after the Fall of Constantinople in 1453. Cusanus envisaged a heavenly Council in which representatives of all major nations and religions, wisely guided by their spiritual authorities, discovered that they could agree on all important religious questions, such as God’s existence and unity, the divine creation of the world, the final destiny of humankind, and the promise of eternal life in the hereafter. Cusanus assumed that remaining differences stemmed from diverse customs and habits. Moreover, they usually concerned mere marginal issues. Thus, the Archangel presiding over the heavenly Council predicted that in the end all nations would find a consensus, because they would realize that ‘within the variety of rites, there is only one religion’.24 The peace project imagined by Cusanus thus basically depended on the marginalization of religious and denominational diversity. All those traditional elements which could trigger conflicts between communities were pushed aside in favour of a predominant harmony which was less inter-religious than intra-religious.25 Given the universal consensus on all substantial articles of faith, the plurality of religions and denominations was reduced to a merely external appearance.

(p. 8) The search for a new, post-traditional religious unity became much more pronounced in various philosophies of the European Enlightenment. Protagonists of the Enlightenment jointly pursued a programme of eradicating denominational conflicts by claiming priority for what they called the ‘natural religion’ over the traditional religions of revelation, sometimes termed ‘positive religions’. The purpose was to promote a reasonable knowledge of God, worship without superstitious ceremonies, a faith independent of miracles and revelation, and a universal community of believers without clerical hierarchies. This reasonable ‘natural religion’ could furthermore be used to unmask remaining denominational differences as mere relics of the past which, it was hoped, would gradually disappear.

Voltaire imagined a society in which people unanimously would practise an enlightened worship of the one God. When visiting the fantasy country of Eldora, the hero of his novel Candide wishes to know which specific religion the country has embraced. Exposing the stupidity of this question his host points out: ‘Could there be two religions? […] We have, I believe, everyone’s religion. We adore God from the evening to the morning.’26 Rousseau, otherwise Voltaire’s most ardent opponent, subscribed to exactly the same idea. In his novel Emile, a vicar from Savoy, a simple man unspoiled by the corruptions of urban life, lays down the significant articles of his faith. He professes: ‘The worship which God demands is worship of the heart, and if it is sincere, it will also be uniform.’27 Kant was likewise convinced that ‘the concept of a divine will, determined merely according to purely moral laws, allows us to think of only one religion which is purely moral, just as only one God.’28

It seemed natural to assume that with the future universal embrace of the one natural and reasonable religion, the space for preserving confessional particularities would gradually shrink and eventually disappear. Indeed, this was exactly what many philosophers of the Enlightenment aspired to. In his treatise on the Education of Humanity, Lessing described Judaism and Christianity as mere transitional phases in the process of humanity’s maturation which would culminate in a post-denominational future era of reason.29 Kant espoused the same vision. In his Religion within the Boundaries of Mere Reason he predicted: ‘The leading-string of holy tradition, with its appendages, its statutes and observances, which in its time did good service, became bit by bit dispensable […].’30 Beginning with the nineteenth century, unification projects became increasingly influenced by the new impact of the natural sciences. George Holyoake, founder of the British ‘Secular Society’, believed that modern science and technology would forge a new unanimity in humankind. His motto ‘science is the available providence of man’31 revealed that the emerging consensus he envisaged was not merely a post-traditional, but also a post-religious one, centred on the expected blessings of the natural sciences.

(p. 9) The obvious problem of the various post-traditional unification projects was that they did not leave much, if any, space for diversity. While the politics of tolerance was basically anti-egalitarian, post-traditional religious or ideological unification projects generally betrayed an anti-pluralistic tendency. Moses Mendelssohn, father of the Jewish Enlightenment (the ‘haskala’), was one of the first to diagnose this danger. In his book Jerusalem (1783) he had already analysed what later would be termed the ‘dialectic of Enlightenment’,32 i.e. the risk that modern accomplishments can turn into the breeding ground for new forms of repression and discrimination. Stemming from a minority charged with a long history of persecution, Mendelssohn was particularly sensitized to the dangers of forced assimilation, a danger disproportionately affecting minorities. He therefore warned against those ‘who want to persuade you that if only all of us had one and the same faith we would no longer hate one another for reasons of faith’.33

Instead of working for a post-traditional union of faiths, Mendelssohn called upon the intellectuals of his day to acknowledge diversity in the sphere of religions: ‘Brothers, if you care for true piety, let us not feign agreement where diversity is evidently the plan and purpose of Providence. None of us thinks and feels exactly like his fellow man; why then do we wish to deceive each other with delusive words? […] Why should we make ourselves unrecognizable to each other in the most important concerns of our life by masquerading, since God has stamped everyone, not without reason, with his own facial features? Does this not amount to doing our very best to resist Providence, to frustrate, if it be possible, the purpose of creation? Is this not deliberately to contravene our calling, our destiny in this life and the next?’34 Mendelssohn’s chief concern was not that the Enlightenment project of religious unification would remain a utopian dream. Much worse, it could actually become a reality. ‘At bottom, a union of faiths, should it ever come about, could have but the most unfortunate consequences for reason and liberty of conscience.’35

III.  The Human Rights Approach: Empowering Human Beings

1.  Human Agency as the Basis of Religious Pluralism

Can freedom of religion or belief offer a way out of the predicament of an anti-egalitarian politics of tolerance and anti-pluralistic unification projects?36 The new approach in dealing with issues of religion or belief aspires to establish a consensus on the basis of a full embrace of diversity, which itself should be acknowledged as an expression of human dignity. In order to better understand the paradigm shift that this entails, it may be useful to define this new approach step by step.

The first step is to accept the sheer fact that people hold irreconcilably different views on the ultimate meaning of life, on the existence or non-existence of a divine being, on how (p. 10) to achieve a good life for themselves and for their fellow humans, and on countless other questions. Such pluralism in religious or philosophical positions typically goes together with a broad variety of individual and communitarian practices. Pluralism both at the level of convictions as well as the level of practices constitutes an undeniable and irreversible reality, perhaps even more so in modern societies in which people of different orientations often live side by side. The more we experience pluralism on a daily basis and even within our immediate neighbourhoods or families, the more obvious becomes the necessity of learning to civilize the concomitant differences by developing appropriate ways of coping with ongoing disagreements, rivalries, and conflicts.

However, apart from representing an undeniable reality, pluralism concerning issues of religion and belief can and should be appreciated as something meaningful. In other words, the vast diversity in this area embodies a wealth of human possibilities which deserve to be cherished as a positive accomplishment. This insight constitutes the second step towards understanding freedom of religion or belief. Any attempt to build a unified humanity on the basis of a unified creed may not merely sound utopian; if it were successful it would seriously impoverish humanity. This exactly was Moses Mendelssohn’s concern who therefore urged his co-philosophers to abandon the search for the one universal ‘natural religion’ as a dangerous and anti-liberal endeavour.

Moreover, rather than presenting an obstacle to a unified humanity, diversity can even become the entry point for developing a more refined understanding of the unity among human beings. For this to be possible we need an element of overarching commonality in order to overcome the mere ‘abstract’ otherness to which no one can positively relate. This element of commonality is human agency in the area of religion or belief as well as in other areas of human life. However different the various religious or non-religious convictions may look, they are always held by human beings who may claim respect for the way they think, believe, and profess. The same is true for religious rituals, ceremonies, or forms of worship and meditation, all of which are practised by human beings, as individuals and in community with others. Even if we ultimately fail to understand what makes a particular faith or belief attractive, we should still be able to appreciate the significance that any deeply held conviction has for the identity of those holding it. By empowering human beings through universal rights of freedom and equality the human rights approach brings to bear the full potential of human agency in this area. This insight is the third step towards understanding freedom of religion or belief as a human right.

So in a way, the right to freedom of religion or belief does amount to a unification project. But the unity it aspires to is a unity that, instead of replacing diversity by one superior religion or ideology, aims at facilitating peaceful coexistence in diversity. What binds human beings together is not an analogy to the one ‘natural and reasonable religion’ of the philosophers of the Enlightenment; rather it is the universal recognition of human agency that cuts across irreconcilably different belief systems. Moreover, recognizing the potential for human agency as an overarching commonality does not in any sense reduce existing differences. Instead, it facilitates their free manifestation, as long as this does not violate the rights of others. By ensuring respect for human agency through binding rights of freedom and equality for everyone, the human rights approach also goes beyond the politics of limited tolerance, since freedom of religion or belief is not a privilege for those whose convictions happen to fit into the pattern of a hegemonic belief system; it is a right to freedom and equality for all.

(p. 11) 2.  Believers and Beliefs

It may seem natural to assume that freedom of religion or belief protects religious or belief-related traditions, practices, and identities, since this is what the title of the right appears to promise. However, this assumption is misleading. In keeping with the human rights approach in general, freedom of religion or belief always protects human beings who are the only rights holders in the framework of human rights.37 To use a shorthand: freedom of religion or belief protects ‘believers rather than beliefs’. Of course, both aspects are necessarily intertwined in that no one can earnestly speak about believers without considering their beliefs and vice versa. And yet it remains true that human rights tackle that interrelatedness between believers and beliefs consistently from the angle of the human being. Hence it is only indirectly that religions or beliefs—i.e. their truth claims, sacred scriptures, normative rules, rituals and ceremonies, organizations and hierarchies—come into the focus of human rights. They can only become legally relevant through demands for recognition brought forward by human beings, i.e. by individuals and in community with others. It is important to understand this peculiar indirectness by which human rights relate to beliefs, i.e. by consistently approaching them through the lens of human beings.

For many (certainly not all) people, religious convictions, spiritual values, norms, and practices constitute a most important part of their daily lives and the backbone of their personal and communitarian identities. Working on behalf of freedom of religion or belief means not only to encounter an abundance of faiths, convictions, doctrines, ceremonies, rituals, practices, communities, institutions, and organizations; it also presupposes openness for the deep emotional attachment which many believers feel for their belief as well the profound sense of loyalty that typically accompanies it. However, to take religions and beliefs in all their dimensions seriously also implies taking pluralism seriously, including sometimes irreconcilable differences in world-views and practices. While some religions are based on holy books transmitted through divinely chosen prophets, other religions do not have the notions of prophecy, revelation or even God. What is sacred for one community may remain opaque to another community, and the values that one group holds in high esteem may simply be incomprehensible to others or even irreconcilable with their own convictions. Contentious issues, as highlighted by Special Rapporteur Jahangir, include the following theological questions: ‘Who was the last prophet? Did God have a son? Are religious leaders infallible? What are you supposed to eat or not to? Is there reincarnation?’38

In view of irreconcilable differences concerning these and other questions, legal recognition in the framework of human rights cannot immediately be accorded to the particular contents of religions or beliefs—their truth claims, holy persons, scriptures, practices etc.—but only to human beings as the responsible agents who hold, cherish, develop, and try to live up to their convictions. Thus, freedom of religion or belief does not protect religious traditions per se, but instead facilitates the free search and development of faith-related identities in the broadest sense of the word.

(p. 12) 3.  Anthropocentrism?

The focus on the human person as rights holder may invite the objection that freedom of religion or belief, at the end of the day, privileges one particular world-view in which ‘man is the measure of all things’,39 to quote a famous motto ascribed to the ancient sophist, Protagoras. It was this kind of anxiety that caused the pre-Vatican II Catholic Church to reject religious freedom for far more than a century. Even today religious traditionalists from different backgrounds often show reluctance when it comes to recognizing freedom of religion or belief as an empowerment right held by human beings.

However, taking human agency as the common denominator of all belief systems does not presuppose the adoption of a particular anthropocentric ideology. It does not mean, for instance, to subscribe to Ludwig Feuerbach’s position that God is a mere product of human imagination and the projection of unfulfilled mundane yearnings.40 Freedom of religion or belief can well serve as a normative reference for positions that claim to originate from a divine source. The notion of ‘human agency’ when used in the context of freedom of religion or belief covers a broad range of convictions and practices. It also includes voluntary acts of surrendering oneself to God, i.e. positions which stand in the starkest possible contrast to an anthropocentric attitude. A person may well believe that personhood is a mere illusion which should be overcome as an obstacle on the path to higher wisdom. However, even in such clear cases of non-anthropocentric (or trans-anthropocentric) views, it remains the human being who professes the respective view and will be held accountable for any practical acts that follow from such a conviction.

And yet there is one indisputable element of anthropocentrism in human rights. It specifically relates to the level of the law. Far from representing a comprehensive anthropocentric world-view or ideology, human rights obviously are entitlements held by human beings and in that sense anthropocentric rights. While not necessarily assuming that the human being is ‘the measure of all things’, the human rights approach does place the human being in the centre of the order of rights, as it were. From this it follows that human rights doubtlessly have a critical barb against all kinds of theocratic aspirations. Whereas people are free to adopt doctrines and norms that claim a trans-human origin, no one can legitimately expect that norms embodying a trans-human authority should become legally binding on others against their will. It is this more specific legal anthropocentrism of human rights that lies at the bottom of many serious political conflicts around freedom of religion or belief.

We have emphasized above that freedom of religion or belief presupposes the full embrace of diversity. Now we have to add an important clarification. The full embrace of diversity in the context of freedom of religion or belief cannot be unqualified. In particular, it cannot give carte blanche for violating the rights of others, even if such violations are committed in the name of religion.41 As elaborated above, the right to (p. 13) freedom of religion or belief only indirectly relates to religions or beliefs as such. This indirectness implies a general caveat in that it must be ensured that human beings—indeed all of them—can act freely in the area of religion or belief as well as in other areas of human life. Human rights law spells out this general caveat by defining the scope of freedom of religion or belief and establishing criteria for possible limitations.

IV.  Respect for Human Dignity

So far we have only loosely circumscribed the human rights approach and its general appreciation of human agency. However, why is it that human agency merits recognition and protection? This question brings us to respect for everyone’s human dignity.

1.  The Unconditioned Normative Status of Human Dignity

Respect for human dignity is not just a normative principle within a series of other normative principles. It would not even suffice to place it on the top of a hierarchy of principles. Human dignity has an axiomatic status, above all principles, because it underlies any meaningful normative interaction among human beings whatsoever, in the sphere of morality as well as in the sphere of law. Binding promises, contracts, normative standards or normative institutions from the local to the global level would be inconceivable without the assumption that human beings have the potential of responsible agency for which they—and indeed all of them—deserve respect. This is what the notion of human dignity signifies in the context of human rights.42 Even if individuals fail to live up to legitimate normative expectations, they are still generally held accountable for their actions or omissions, which again implies respecting their potential of responsible agency.

The preamble of the UDHR begins by proclaiming ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’. The term ‘recognition’, which literally constitutes the first word of the Declaration, can mean an act or an insight. Within the preamble of the UDHR the second interpretation clearly makes more sense, because recognition refers to a quality conceived as being ‘inherent’ in all humans.43 Respect for human dignity cannot be the mere product of a negotiation process or a mutual promise. It is the other way around in that any negotiations, promises, or contracts, in order to become normatively meaningful, already presuppose the basic respect for everyone’s human dignity. As the preceding condition of any meaningful normative interaction among human beings, respect for human dignity itself has an unconditioned status.

Representing the unconditioned condition of normative interaction, human dignity can be conceived only in a strictly universalistic manner, i.e. as a quality to be respected in each and every individual, regardless of their societal positions, personal merits, or other characteristics. Human dignity thus represents the ultimate foundation of normative (p. 14) universalism, including universal rights.44 The UDHR renders this connection explicit when linking the inherent dignity of all to their ‘equal and inalienable rights’. The adjectives used here are well chosen. Human rights, which institutionalize respect for everyone’s dignity, can only be conceptualized as equal rights for all.45 At the same time, it is this very relatedness to human dignity that also gives human rights their elevated status as ‘inalienable rights’ by which they essentially differ from the various other legal entitlements that a person may or may not possess. Whereas individuals can gain or lose many rights, for instance by signing a labour contract or by selling their copyrights, human rights constitute a different category in that they can neither be bought nor sold and neither be improved nor be forfeited. In the words of Immanuel Kant, ‘every human being still has his inalienable rights, which he can never give up even if he wanted to’.46

2.  A Particular Religious Heritage?

The idea of human dignity has a long history—or even prehistory—in different religious, philosophical, and cultural traditions.47 Traces of this idea can be found in proverbs, narratives, metaphors, parables, and theological or philosophical treatises across cultural divides. For instance, according to the book of Genesis, the human being has been created ‘in the image of God’ and thus been elevated above all other creatures.48 In Psalm 8 the singer, overwhelmed by the sublime beauty of the nightly skies, turns to God wondering why He has placed the frail and tiny human person in an almost godlike position.49 The Stoic philosopher, Marcus Aurelius envisages a fundamental unity of humanity all of whose members share sparks of the divine logos.50 The Qur’an tells the story that at the beginning of time the human person accepted from God a peculiar trust (‘amana’) which the mountains and the heavens, representing the most powerful cosmic elements, had previously rejected.51 Moreover, scholars have connected human dignity with the ‘golden rule’ (‘treat others the way you would like to be treated by them’), which, albeit in different formulations, has its roots in many traditions.52

Given such traces within the foundational documents of various religions and cultures, the concept of human dignity can help to build bridges between religious or cultural traditions, on the one hand, and the modern concept of human rights, on the other.53 (p. 15) At the same time, it is exactly this bridge-building role between religious traditions and modernity that has also triggered objections. Critics see a danger that the concept of dignity may become the entry point for particularistic religious or cultural ownership claims which, it is feared, would undermine the universalistic nature of human rights.

This problem was already thoroughly debated during the drafting of the UDHR. Brazil proposed to amend article 1 by inserting a reference to the biblical idea of the human being as ‘created in the image and likeness of God’.54 The representative of Brazil, Mr de Athayde explained that ‘a reference to God as the absolute origin of the rights of man and of all rights’ should strengthen the Declaration.55 Dr Peng Chun Chang, a Confucian philosopher representing China, objected that this would de facto exclude his own country, whose population ‘had ideals and traditions different from those of the Christian West’.56 He furthermore expressed his hope that ‘his colleagues would […] withdraw some of the amendments to article 1 which raised metaphysical problems’.57 As a result of the discussion, in which many delegates sided with the Chinese representative, Brazil withdrew its proposal.58 When referring to human dignity, the text of the UDHR thus does not invoke any particular religious concepts or metaphors but sticks to a religiously neutral—and in this sense purely ‘secular’—language. Likewise, the United Nations as a whole is a secular organization, but as former UN Secretary-General, Kofi Annan stressed, literally on the eve of 9/11, in a speech delivered on 10 September 2001: ‘[The United Nations] is not anti-religious. Quite the opposite. It needs the support of all religions.’59

Indeed, the secular terminology used in the UDHR and other international human rights documents does not preclude the possibility for people to make reference to their specific religious or philosophical readings of human dignity when appreciating international human rights. Jewish or Christian human rights organizations may well understand their advocacy work in the light of the book of Genesis, Muslims may refer to the Qur’anic idea of the human person acting as God’s representative (khalifa) on earth,60 and other traditions of understanding human dignity can also come into play. However, it remains important not simply to amalgamate human rights terminology with the more specific notions and metaphors of human dignity as they exist in various religious or cultural traditions. Some scholars have therefore proposed a ‘dual track approach’ in the understanding of human rights.61 Such an approach would give space to various non-legal readings of the basic principles of human rights, including religious or philosophical in-depth interpretations of human dignity, while at the same time upholding a practical consensus on how to understand and implement the existing normative standards. Both tracks are important, but should certainly be kept distinct. For legally binding standards of (p. 16) human rights not to get lost in the diversity of religious, philosophical, or cultural interpretations, they must stand on their own feet, as it were. Making sense of human rights also in the languages of religious metaphors and various cultural narratives at the same time facilitates a broad interreligious and intercultural ownership of human rights beyond the sphere of positive law.62

3.  Entry Point for Moral Perfectionism?

Another objection levelled against too much emphasis on human dignity invokes the danger of moral perfectionism.63 Could the morally charged notion of dignity not undermine the liberal rights approach? Some critics assume that there is a general antagonism between a ‘rights based approach’ and a ‘dignity based approach’. While the rights based approach respects everyone’s rights, regardless of their moral or less moral behaviour,64 the dignity based approach allegedly subordinates rights to the actual moral standing of an individual. From this perspective, dignity could justify patronizing moralistic attitudes. In short, while the rights based approach represents liberal achievements of personal autonomy and societal emancipation, the dignity based approach might indicate a moralistic roll-back—or so it is perceived.

Maybe this danger exists. The semantic field of ‘dignity’ is broad and harbours conflicting notions. In ancient Rome, the term dignity was mostly used to mark the enhanced position of particular dignitaries; it had an aristocratic or meritocratic connotation which to a certain degree has survived to this day. The semantics of dignity can thus come close to that of ‘honour’, i.e. a concept designed to single out certain persons based on their birth, societal status, or personal merits. As Peter Berger has demonstrated, the concept of honour links the person to particular role expectations, which is the reason why the term honour often carries additional attributes, like knightly honour, soldier’s honour, various professional codes of honour or—most suspiciously—gender-related ideas of honour.65 Although Berger proposes a clear conceptual distinction between ‘honour’ and ‘dignity’, in the sense that the former relates to particular role expectations while the latter does not, in the daily use of those terms things may easily get mixed up.

Such ambiguities also occur in the context of human rights. One example is the Cairo Declaration of Human Rights in Islam (5 August 1990) which was developed under the auspices of the Organization of the Islamic Conference.66 After proclaiming in article 1(a) that all men are equal in terms of basic human dignity, the Declaration adds that ‘[t]rue faith is the guarantee for enhancing such dignity along the path to human perfection’. Here dignity slides into a meritocratic concept linked to acts of piety and religious compliance. A document on human dignity and human rights issued by the Russian Orthodox (p. 17) Church in 2008 includes a similar ambiguity. On the one hand, the Moscow Patriarchate underlines the firm theological basis of everyone’s dignity which constitutes a divine gift prior to any moral action of the individual. On the other hand, the Russian Orthodox Church also speaks about the need of ‘restoring a person to his appropriate dignity’, given the reality of sin.67 Again, dignity seems to assume an anti-egalitarian, meritocratic, or even patronizing meaning.

Against this background, it is understandable that the notion of dignity can evoke mixed feelings. In particular, feminists have warned that dignity could open the floodgates for re-installing gender-related patriarchal values.68 Nonetheless, to discard this concept altogether would be a wrong conclusion. Instead of pushing dignity to the margins of human rights debate, thereby risking to obfuscate their moral foundations, it seems more useful to strive for conceptual clarity. The language of the UDHR is a good starting point, because it confirms a universalistic and egalitarian understanding. As mentioned earlier, the UDHR recognizes human dignity as an inherent quality of ‘all members of the human family’ and further connects it with everyone’s ‘equal and inalienable rights’. Article 1 of the UDHR corroborates this structure by proclaiming that ‘all human beings are born free and equal in dignity and rights’, thus unequivocally distinguishing human dignity from any role-related or meritocratic notions. Indeed, in the context of human rights, dignity cannot remain reserved to a particular class of ‘dignitaries’ but must be ascribed to all humans in a strictly egalitarian manner. And rather than rendering dignity dependent on a person’s ‘dignified’ behaviour (whatever that may mean), it is exactly the other way around in that everyone deserves to be treated in a dignified way because of their inherent dignity.

Respect for human dignity is unconditioned. Prior to any positive legislation, human rights find their justification in the respect for everyone’s potential of moral agency as the axiomatic precondition of any normative interaction whatsoever. This potential is not something that a person first has to demonstrate before being entitled to respect. It is the other way around in that respect for human dignity normatively precedes any concrete moral actions. Accordingly, respect of dignity is also due to those fellow humans who apparently fail to live up to the requirements of morality and law, and human dignity must equally include those who, as a consequence of mental or other impairments, are unable (or seem to be unable) to fully exercise their moral faculties in practice. As a universalistic concept, and indeed the very foundation of normative universalism, respect for human dignity can only be conceived as an inclusive notion.69 For all the difficulties (p. 18) that may arise in interpreting dignity, the concept has an indispensable function in reminding us that human rights have the status of inalienable rights that command an unconditional respect that is equally due to each and every human being.

V.  Towards a Universalistic Conceptualization

1.  Tendencies of Particularization

Freedom of religion or belief cannot legitimately have the status of a human right, unless it shares the universalistic nature which defines the human rights approach in general. This has at times been challenged. Critics have alleged that the right to freedom of religion or belief privileges religious over non-religious views and finally protects the ‘homo religiosus’ rather than each and every human being.

Before responding to this challenge, one has to admit that the constitutions and laws of many countries actually fall far short of normative universalism in that they merely recognize the members of certain pre-selected religions. While in some States only the followers of the monotheistic religions receive recognition, other States refer to concepts like ‘known religions’, ‘normal religious practices’ or ‘traditional religions’, with the typical result that members of less known, new or alternative communities face different forms of exclusion and discrimination.70 The list of recognized religions may be short or may be long. In any case, the problem remains that, based on such an understanding, religious or belief pluralism can only unfold within a set of permissible options defined by the State—a situation incompatible with the spirit and letter of normative universalism. The actual practice of freedom of religion or belief in States thus fails to meet—or even to try to meet—the standards of normative universalism. Furthermore, UN resolutions on the various existing ‘phobias’ related to certain religions, frequently reveal a lack of universalism in spirit and in letter. While usually addressing ‘Islamophobia’ and sometimes ‘Christianophobia’ or ‘Judeophobia’ (a term occasionally used for anti-Semitism or similar phenomena), for instance, the problem of ‘Bahaiophobia’ is totally absent.71 It is all the more important to criticize such tendencies of particularization based on a clear understanding of freedom of religion or belief as a universal human right.

2.  Inclusive Application

The human rights approach in dealing with religious diversity implies a paradigm shift from beliefs to believers and from predefined lists of recognized religions to all human beings as rights holders. One cannot overestimate the far-reaching conceptual and practical challenges that this paradigm shift entails. Conceptualizing freedom of religion or belief as a universal human right means always to respect the self-understanding of all human beings. (p. 19) It falls upon them to declare who they are, how they want to be perceived, which practices they wish to see respected, which support measures they may need etc. It is not that all their claims can always be fulfilled by the State and society, and there may be reasons sometimes to question the self-description of some individuals or groups. And yet, respecting the self-understanding of all human beings must remain the starting point and a guiding principle for any universalistic conceptualization of freedom of religion or belief. It seems obvious that the diverse ways in which human beings position themselves in questions of religion or belief will never fit into any particular canon of predefined religious options. Taking the self-understanding of human beings—and ultimately all of them—as the systematic point of departure means to open up for a broad diversity of convictions and practices.

Such a broad understanding has been corroborated by the UN Human Rights Committee, the expert body in charge of monitoring the implementation of the ICCPR. In its general comment no. 22 (1993) the Committee points out: ‘Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed.’72 These are clear words. The general comment goes on: ‘Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.’ One should add that freedom of religion or belief equally covers the rights of members of large or small communities, minorities as well as minorities within minorities, conservatives as well as liberals, converts or re-converts, dissenters or other critical voices.

3.  The Search for a Defining Line

The open, inclusive understanding of freedom of religion or belief, as confirmed by the Human Rights Committee, typically invites two different kinds of objections. The first objection concerns the fear of negative consequences, ranging from harmful ritual practices to fanaticism, and even religiously motivated terrorism. However, due to its nature as a human right, freedom of religion or belief systematically remains within the overall human rights framework and cannot become the pretext for endangering or abusing the rights and freedoms of others. In cases of collisions with human rights of others, the freedom of religion or belief can—and sometimes even must—be limited by the State. In order to be legitimate, however, such limitations must be enacted in accordance with all the criteria prescribed for such a situation.73

The second objection points to the danger that a broad interpretation could open the floodgates to all sorts of trivial interests.74 For example, a national census conducted in the Czech Republic revealed that more than 15,000 people see themselves as followers of a ‘Star Wars’ religion.75 In addition, a group of people who call themselves ‘Pastafarians’ have created the worship of the ‘big spaghetti monster’. Members of this group have insisted on their (p. 20) right to be photographed with noodle sieves on their heads for official documents.76 Do we have to take this seriously? It is generally wise not to jump to conclusions but rather to assess each case carefully on its own merits. And yet there is no denying that a danger of trivialization exists.

How can we avoid the pitfalls of trivialization without sliding back to essentialist notions of traditionally ‘known religions’ or lists of predefined legitimate religious options?77 The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief gives a hint. Its preamble states that ‘religion or belief, for anyone who professes either, is one of the fundamental elements of his conception of life’.78 This is a fairly open definition which at the same time can help overcome the dangers of inflation and trivialization. It indicates that religions and beliefs in the understanding of the 1981 Declaration have a holistic significance that permeates the entire self-understanding of a person and his or her way of life. Religions and beliefs can shape a person’s identity and create a deep sense of attachment and group loyalty based on shared world-views, symbols, ethical norms, and practices. The European Court of Human Rights has developed a similar line of reasoning. In order for a person’s views to fall within the ambit of the right to freedom of religion or belief, the Court states, these views must attain ‘a certain level of cogency, seriousness, cohesion and importance’.79 Again, this is a helpful clarification. On the one hand, the four criteria remain open for a broad variety of religions and beliefs, including conscience-based views that fall outside of mainstream religions. On the other hand, the Court insists that not any view which someone just happens to have today can claim the status of a serious ‘belief’ or ‘religion’. While the criteria of cogency, seriousness, and importance imply an existential urge based on profound convictions, the element of cohesion requires that the respective view show an impact on a person’s identity and practice in a somewhat coherent and holistic manner.

In a similar vein, Cole Durham and Brett Scharffs have used Paul Tillich’s concept of a person’s ‘ultimate concern’80 as a possible orientation. Tillich’s concept, they argue, can serve as a reminder that religions or beliefs, whatever their precise contents, typically relate to people’s deep and existential convictions and concomitant individual and communitarian practices. At the same time, it remains important to make sure that any criteria used to define religion and belief remain open and for this reason ‘formal’ so as to allow for the inclusion of most different manifestations of existing deep convictions and related practices. In case of doubt we better err on the side of being too inclusive rather than running the risk of excluding some people from the protection of freedom of religion or belief. After all, only such a wide and open understanding can do justice to the real diversity existing among human beings all of whom have the status of rights holders in the context of universal human rights.81

(p. 21) VI.  Freedom

1.  Dimensions of Freedom and Criteria for Limitations

Freedom of religion or belief empowers human beings to freely find their ways in the broad sphere of religious or non-religious convictions, conscience-based personal positions and communitarian practices, the development of religious or belief identities, the organization of religious community life and many other issues. It is a multifaceted right. For example, people have the freedom to search for an ultimate meaning in life and to come to most different (or no) results in such endeavours; to communicate their convictions, beliefs or doubts openly; to insist on not being publicly exposed regarding their religious positions or identities against their will; to live in accordance with the norms of their faiths; to hold worship alone or together with others; to grow up and remain within their faith communities or to abandon their inherited beliefs; to develop appropriate infrastructures needed for the development of their communities; to defend old or create new religious organizations; to engage in religious charity activities; to manifest religious or belief-orientations visibly, including by obeying particular dress codes; to promote their convictions publicly and invite others to join their communities; to cherish their ties with co-religionists across State boundaries; to educate their children in conformity with their own religious or moral convictions and to organize community schools for this purpose. In short, freedom of religion or belief covers private and public practices, individual and communitarian dimensions of faith, personal and infrastructural aspects of religious life.82

Taking freedom seriously implies equal concern for what has been termed ‘positive’ freedom and ‘negative’ freedom. These are two sides of the same coin. No one can be free to do something unless he or she is also free not to do it, and vice versa. That is why freedom of religion or belief also covers freedom not to profess a religion or belief, not to attend worship or just not to care about religious or philosophical issues etc. There is no hierarchy between positive and negative freedom. Indeed, any attempt to establish such a hierarchy would finally obscure the liberating essence of freedom of religion or belief in general.

It is a truism that a person’s or group’s freedom cannot be completely unlimited, since making use of one’s own freedom may negatively affect the rights and freedoms of others. However, the general need for some limitations can easily become a pretext for imposing arbitrary restrictions. This danger is not merely hypothetical. In many countries overly broad and unspecified ‘security’, ‘order’ or ‘morality’ interests are invoked to curb religious criticism, restrict the freedom of minorities, and exercise tight control over independent religious communities. The question of where to draw limits and how to prevent the frequent abuse of limitation clauses is one of the most sensitive issues in human rights law. Article 18 of the ICCPR entails important criteria in this regard, and the UN Human Rights Committee has dedicated several paragraphs of its general comment no. 22 to further sharpen these criteria.83

A first step towards preventing the abuse of limitation clauses is the insight that restrictions always require specific arguments. The onus of proof falls on those who argue on behalf of limitations, not on those who defend or practise a right to freedom. (p. 22) Secondly, the internal dimension of freedom of religion or belief, traditionally called ‘forum internum’, even has an unconditional protection, according to article 18(2) of the ICCPR which states that ‘[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice’.84 Thirdly, with regard to manifestations of a religious or philosophical conviction (in the ‘forum externum’), limitations can only be permissible if they meet all the criteria set out in article 18(3) of the ICCPR. Accordingly, limitations must be legally prescribed and they must be necessary to pursue a legitimate aim—the protection of ‘public safety, order, health, or morals or the fundamental rights and freedoms of others’. In addition, restrictions must remain within the realm of proportionality which inter alia means they must be limited to a minimum degree of interference and must be conducive to promoting the legitimate purpose they are supposed to serve. These criteria are prescribed with the purpose of safeguarding the liberating substance of freedom of religion or belief even in situations of a direct collision with other rights or important public interests. Finally, limitations must be connected with the provision of legal remedies. Everyone who thinks his or her rights have inappropriately been infringed upon must have access to courts, ombuds-institutions, national human rights institutions, or other mechanisms.

The elevated status of human rights as ‘inalienable’ rights does not preclude limitations. Far from representing a merely utopian vision, human rights must be applicable in the real world. They even have an increased importance in situations of political conflict in which they seem to collide with public order interests or the rights of others. Respect for the inalienability of human rights thus requires a high degree of empirical diligence and normative caution whenever limits are deemed necessary, in compliance with the binding criteria set out in international human rights law.

2.  Individuals and Communities

Human rights are frequently termed ‘individual rights’, which is correct and at the same time may be misleading. The term points to the status of each individual human person as a rights holder prior to any particular group membership. As the opening sentence of the UDHR clarifies, the only membership that counts when it comes to defining the status of a rights holder is membership in ‘the human family’. Originating from the axiomatic assumption of universal human dignity, human rights are rights of each and every individual.

However, while the status of the human being as rights holder remains independent of any particular group membership, the actual exercise of human rights always presupposes social relations and thus communities in the broadest sense of the word. A human right without a community dimension would not even be conceivable in theory, let alone applicable in practice. To name a few obvious examples, freedom of expression can only become a reality in a discourse community of speakers and listeners; the rights to peaceful assembly and association are per definition exercised jointly with others; habeas corpus rights provide for the preservation of elementary social ties even in situations of arrest and detention; the right to form trade unions facilitates practical solidarity among colleagues in the workplace; and the perhaps most obvious example is the right to marry and found a family. As the wording of articles 18 of the UDHR and ICCPR shows, freedom of (p. 23) religion or belief, too, has an explicit community dimension; it protects religious or belief manifestations ‘in worship, observance, practice and teaching’ exercised ‘either individually or in community with others and in public or private’.85

Moreover, not only do human rights always relate to communities in order to be applicable in practice; they can also become an active factor for reviving communities. Human rights may contribute to transforming authoritarian regimes into democracies; they help broaden the space for public critical discourse; they play a crucial role in reshaping the understanding of marriage and family life by demanding respect for women’s rights and diverse gender identities; they back up the development of trade unions, political associations, and civil society organizations; they support children in their rights to participation in public life; and they serve as normative reference for the full inclusion of persons with disabilities in developing a barrier-free society. Freedom of religion or belief, too, can inspire community reforms. Religious communities may learn to appreciate internal diversity as a potential source of strength, and they may discover—or re-discover—a truth rooted in many traditions that authentic faith always requires freedom. Moreover, the awareness that members have the possibility to abandon the community can motivate religious leaders to reach out to neglected followers, be more attentive to people’s needs and yearnings and generally become more persuasive in their teaching and preaching.

Many ideological debates which have taken place in recent decades on human rights and ‘traditional values’ (including ‘Asian values’) presuppose an abstract antagonism between individual rights on the one hand and communitarian solidarity on the other, as if the establishment of rights of the individual were to undermine any sense of solidarity. This is a strange idea.86 By challenging authoritarian practices in political life, family life, and religious community life—from political censorship, to forced marriages to forced conversion—human rights can actively promote communitarian solidarity based on respect for all individual members. Admittedly, human rights-based concepts of communitarian solidarity may be more complicated, because individuals have the right to voice criticism, come up with alternative ideas, and even abandon a community. But it is exactly this additional complication which makes communities based on respect for human rights more demanding—and arguably also more sustainable in the long run.

3.  Freedom of ‘Choice’—an Inappropriate Term?

Article 18(1) of the ICCPR guarantees everyone’s freedom to ‘have or adopt a religion or belief of his choice’. This wording protects the right to conversion, which is one of the most controversial dimensions within freedom of religion or belief.87 Apart from fears that the right to conversion could open the floodgates to relativism and indifferentism in matters of faith, many believers feel that the very term ‘choice’ fails to cover the existential dimension of a deep religious conviction. As Roger Trigg contends: ‘A religion typically makes demands on its adherents. They are believed to be not only of their making but are (p. 24) obligations imposed on them. That is very different from the “subjective” choice made because I feel like it, and impose it on myself.’88

Does the term ‘choice’ mirror a shallow misconstruction of religion—as if faith were an item which one can choose from a catalogue of commodities?89 Could it weaken the deeper understandings of calling, destiny, and obligation by simply subjecting questions of faith to personal preferences? Well, something similar could perhaps be said of marriage or partnership. Obviously, the free ‘choice’ of a spouse should not resemble the selection of an item from a catalogue. Here again, the language of choice, when used in legal debates about marriage and family, fails to reach the existential significance of an intimate and potentially lifelong personal relationship. And yet, to have a guaranteed right of free choice in questions of partnership and marriage does remain important.

For many people issues of personal conviction are certainly not just a matter of ‘choice’ in the ordinary understanding of the word. A conscientious objector to military service may actually feel that he has no choice at all but, rather, has to follow the inner voice of his conscience—in traditional language: ‘the dictates [!] of his conscience’. However, to criticize the technical language of human rights law for not capturing this existential cogency would be missing the point, since this has never been the intention. Instead, the legal guarantee of ‘choice’ has a pragmatic significance; it facilitates the development of authentic convictions by providing practical safeguards against coercion in this area. Rather than leading to a superficial, ‘commodified’ understanding of religion or belief, human rights provisions can thus arguably contribute to achieving higher degrees of personal sincerity, earnestness, authenticity, profoundness, loyalty, and commitment in matters of faith. Finally, guaranteeing everyone’s free ‘choice’ is the way in which human rights law can institutionalize the due respect for human beings as holders of profound identity-shaping convictions.

VII.  Equality

1.  Diversity-Friendly Equality

Like freedom, equality is one of the architectonic principles on which the entire system of human rights protection is based.90 As pointed out above, the preamble of the UDHR connects recognition of everyone’s human dignity with their ‘equal and inalienable rights’. There is a compelling logic underneath this connection. If respect for human dignity constitutes the axiomatic condition for any meaningful normative interaction, then the institutionalization of this foundational respect, in the shape of human rights, must necessarily include all human beings equally. Human rights are conceivable only as equal rights of everyone. Article 1 of the UDHR corroborates this overarching normative structure by proclaiming that ‘[a]ll human beings are born free and equal in dignity and rights.’

The principle of equality defines the normative profile of the human rights approach in general—and thus of each and every human right, including the right to freedom of (p. 25) thought, conscience, religion or belief. It is not only a right to freedom, but also a right to equality and non-discrimination. Hence, it is no coincidence that all comprehensive human rights documents contain the prohibition of discrimination on various grounds, including the grounds of religion.91 The 1981 Declaration spells out this prohibition more specifically by addressing the various societal spheres in which religious discrimination may occur. Its article 3 sends a strong message by reminding States that ‘discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations’.

However, when it comes to conceptualizing the principle of equality—and its corollary: non-discrimination—more precisely in order to make it applicable in practice, complications may arise. What makes equality in the area of freedom of religion or belief particularly difficult is the experience that religious or belief communities—Jews, Christians, Muslims, Bahá’ís, Hindus, Buddhists, Taoists, indigenous communities, and numerous others—have very different needs and demands. They follow different liturgical calendars, celebrate different holidays, practise a huge variety of different rituals, prescribe all sorts of dietary rules, and may know totally different forms of religious self-organization.92 One should not forget that freedom of religion or belief also protects atheists and agnostics, which adds yet another layer of complexity. Where is the common denominator that nonetheless allows us to strive for equality within this vastly complex and diverse landscape?

The first step to an answer is easy: it is human beings who provide that common denominator. As elaborated above, the right to freedom of religion or belief protects human beings rather than religions in themselves.93 Accordingly, it is up to the believers—individuals and communities—to lay claims and to tell legislators, judiciaries, and other State agencies what precisely they need to be able to exercise freedom of religion or belief in practice. Like other human rights, freedom of religion or belief presupposes, and at the same time facilitates, free articulation of human beings. It is they who have to define what really matters and how they wish to be respected and protected in their various religious or belief-related identities.

Free articulation brings us back to the concept of freedom. Indeed, freedom and equality are inextricably intertwined. They represent two sides of one and the same foundational principle, i.e. the principle of equal freedom for all. Without equality, rights of freedom would sink to mere privileges, and without regard to freedom the principle of equality could easily be mistaken for uniformity or ‘sameness’.94 In the spirit of equal freedom for everyone, human rights empower individuals to pursue their various life plans, to enjoy equal respect for their irreplaceable personal biographies, to freely express their diverse political opinions, or to manifest in freedom their different faith-related convictions and practices, as individuals and in community with others. Instead of leading to a homogeneous or uniform society, the equal implementation of human rights for (p. 26) everyone will bring to bear the existing and emerging diversity in society. In the framework of human rights equality has always been, and can only be, a diversity-friendly equality.

2.  Formal and Substantive Equality

Pointing to human beings and their freedom to articulate what matters to them merely provides the first element of an answer to the above question about how to conceptualize equality in the area of religious diversity. What about public holidays, for example? Do they not usually privilege certain predominant religious traditions at the expense of equal treatment of all? If so, would it not be logical to either abolish all public holidays linked to a particular liturgical calendar or, alternatively, enlarge the list of public holidays and take on board the festivities of all religions and beliefs which happen to exist in the country (which in practice would be impossible)? Although few people would draw such radical consequences, the problem remains that even in a society committed to everyone’s equal freedom of religion or belief the existing normative standards will most likely reflect—and thus also reinforce—the country’s predominant religious or cultural traditions, with discriminatory implications for people of alternative orientations.95

The example of public holidays is evident and in that sense easy. In reality this may just be the tip of a huge iceberg. Whereas the tip is visible, we may in many cases not even be aware of the existence of the iceberg, i.e. the manifold issues of discriminatory treatment hidden under the veneer of everyday practices, general rules, and regulations. Although seemingly applying to everyone equally, the existing normative structure in a society may reflect the implicit standpoints of majority religions, predominant cultures, and hegemonic ways of life. Dress codes in public institutions which for the majority seem just ‘natural’ may impose a heavy burden on some members of religious minorities. Working schedules in companies may create problems for people who, due to religious prescripts, feel obliged not to work on specific days. And in some situations certain professional duties as defined for those employed by hospitals or other institutions may collide with deeply held conscientious convictions.96

Apart from direct, straightforward, and unconcealed manifestations of discrimination, less salient forms of discrimination—indirect or structural discrimination—also exist. Frequently, people involved in such discrimination may not even be aware of what they are doing. This experience has given rise to demands for a more nuanced understanding of equality, which would also allow us to better address concealed forms of discrimination.

In the academic literature this broader understanding of equality sometimes figures under the headline of ‘substantive equality’. The assumption is that we should move away from mere ‘formal’ towards a more ‘substantive’ equality. Whereas formal equality treats everyone equally without sufficiently taking into account relevant specificities of certain people—such as their specific needs or specific vulnerabilities—substantive equality is thought to be more accommodating towards relevant differences. For instance, based on empirical evidence on persisting religious discrimination in many European States, the EU-sponsored RELIGARE project recommends substantive equality in order to do (p. 27) justice to persons belonging to religious minorities.97 One measure designed to promote this purpose is ‘reasonable accommodation’ of specific needs of minorities in the workplace or other spheres of societal life. This may include exemptions from generally binding rules in order to avoid conflicts with deeply held convictions. In the words of Gabrielle Caceres, ‘reasonable accommodation aims at relaxing generally applicable rules in order to guarantee a more substantive equality in which the specificities of everyone are taken into account’.98

Calls for substantive equality generally have a lot of persuasive force, because it seems evident that without accommodating relevant differences the principle of equality might simply prolong existing hegemonic standards. Empirical research indicates that in many situations this is actually the case. At the same time, it often remains unclear which differences or specificities should be accommodated in practice. Of course, in a spirit of respect for everyone’s free self-identification and self-articulation, the starting point must always be human beings who have to take the first step by requesting accommodation of their specific religious or belief-related needs. But which arguments should count in this regard?

The challenge is to accommodate relevant differences without simply blurring the contours of the principle of equality. How can we avoid the danger that the element of ‘difference’, when built into a new and possibly more accommodating conceptualization of equality, could lead to arbitrariness or even cause retrogressive effects? The above quote from Caceres gives a hint by stressing that what should be taken into account is ‘the specificities of everyone’.99 Of course, this does not mean that specific accommodations or exemptions granted to one person in recognition of his or her specific religious needs should actually be made available to everyone else, which would be absurd. Instead, what it means is that measures of specific accommodation should be applicable to all those who can plausibly claim that they live, roughly speaking, in an analogous situation and would be faced with an analogously existential conflict if measures of accommodation were denied. Admittedly, what an ‘analogous situation’ is may often be debatable, and the actual application of this rule will most likely be controversial in many situations. And yet, this sort of reasoning seems to be the only plausible way to avoid the dilemma of either denying any accommodation of specific religious needs in toto or opening the floodgates of arbitrary and privileged treatment.

3.  Egalitarian Justification of Accommodation

Measures of accommodation or the granting of specific exemptions are, by definition, always contextual. They refer to the contextualized specificities of individual cases or situations. At the same time, however, their justification depends on the possibility to discuss and assess them within the broader normative horizon of equality for everyone. Even though the actual measure of accommodation may be limited to just very few people, (p. 28) the criteria of justification of such a specific measure must do justice to the egalitarian spirit underlying human rights in general.

Within the framework of human rights, substantive equality cannot be a mere compromise between formal equality and some vague accommodation of differences, nor can it be the middle ground between strictly equal treatment of everyone and a more lenient attitude (whatever that may be). Such a diffuse compromise would be less, not more, than formal equality; it would be a step backwards instead of moving ahead. At the end of the day, a diffuse compromise between equality and difference might amount to the very dissolution of equality as a systematically applicable principle. The Aristotelian formula of treating ‘equals equally and unequals unequally’100—which strangely enough continues to be frequently cited as a guiding idea in legal literature even today—is no help in this regard. If taken literally, it would actually pave the way to fragmentation in normative issues and the loss of any critical stance against arbitrary privileges and discrimination.101

For the concept of equality to retain its foundational function in human rights, it must provide the horizon within which any ‘specificities’ must be claimed, negotiated, and finally assessed. In practice, this requirement is less difficult to apply than it may seem at first glance. Indeed, the egalitarian spirit underpinning the human rights approach in general has never precluded the possibility, and indeed advisability, of according additional attention to people who live in situations of increased vulnerability—such as refugees, migrant workers, persons with disabilities, individuals belonging to religious minorities, and others.102 Such extra attention given to people in vulnerable situations usually finds broad endorsement, as long as it is based on universalistic criteria which do not single out certain individuals of groups while turning a blind eye to the special needs and problems of others.

What follows from this reflection? The notion of ‘substantive equality’ should not be mistaken as a move away from ‘formal equality’, but instead should be conceptualized as a more nuanced and sophisticated continuation of ‘formal equality’. Rather than promoting a gradual de-formalization of equality, which in the end would leave us with a mess of unrelated diversity-claims, substantive equality may remind us of the never-ending task to spell out the practical implications of equality in the light of different and often changing demands put forward by the ultimate subjects of human rights, i.e. all human beings.

Whilst philosophers have tried to clarify the meaning of substantive equality by designing thought experiments, such as the Rawlsian ‘veil of ignorance’,103 lawyers usually operate more pragmatically in a case-by-case manner. This is fine. It should be borne in mind, however, that a case-by-case approach is more than just a series of ad hoc decisions. In dealing with specific claims for accommodations or exemptions, those in charge of deciding should know (and usually do know) that, whatever decision they take, their judgment will have implications for other cases as they come up in the future. Any decided case can serve as a precedent to which others may legitimately refer, provided they can plausibly claim to live in an analogous situation of increased vulnerability or to have comparable religious or belief-related needs which would warrant similar accommodation. (p. 29) In this way, the precise contours of a more substantive equality remain historically open, while the principle of equality itself provides the general normative horizon within which any claims, debates, negotiations, and assessments must strictly remain.

VIII.  Positive Interrelatedness with Other Human Rights

1.  The Holistic Understanding of Human Rights

The outcome document of the 1993 Vienna World Conference on Human Rights confirms that ‘[a]ll human rights are universal, indivisible and interrelated and interdependent.’104 This frequently cited Vienna formula stands for a holistic approach in the conceptualization of human rights. It means that taking away one human right would not only leave us with a specific gap; it would seriously affect and damage the entire system of human rights. Without freedom of expression or without habeas corpus guarantees, human rights would not even be conceivable in theory; ignoring the right to education would undermine any consistent practical implementation of human rights; and without due account of the principle of gender equality, human rights would lose their credibility as universal standards applying to each and every human being. Freedom of religion or belief, too, has an indispensable role within the system of human rights in that it guarantees respect for people’s profound, identity-shaping convictions and conviction-based practices.

The holistic understanding of human rights certainly does not guarantee win-win situations between the various practical human rights issues that come up on a daily basis. Experience demonstrates that issues put forward under different human rights norms can, and do, collide. Aggressive speech acts defended in the name of freedom of expression may clash with policies of eliminating racist stereotypes; respect for family life can come into conflict with the requirements of guaranteeing every child’s right to school education; and conservative interpretations of religious family values may be at odds with the principle of gender equality and nevertheless seek protection under freedom of religion or belief.

The practice of human rights, to a large degree, is a practice of managing conflicts. Apart from upholding the criteria prescribed for dealing with such conflicts, it is important not to turn concrete conflicts between (seemingly or actually) colliding human rights interests into abstract antagonisms on the normative level itself. This would be a systematic mistake, and it would likely be the end of the holistic approach in the conceptualization of human rights. Strangely, however, such problematic consequences are often drawn from conflicts that include religious freedom issues. We will focus here on the two most controversial test areas: the relationship between freedom of religion or belief and freedom of expression as well as gender issues.

2.  Neighbouring Rights: Freedom of Religion and Freedom of Expression

Freedom of religion or belief is sometimes invoked to request protection for religious feelings against offensive speech acts, thus apparently limiting the scope of freedom of expression. For instance, between 1999 and 2010 the Organization of Islamic Cooperation (p. 30) (OIC) regularly tabled resolutions with the purpose of ‘combating defamation of religions’. Apart from giving the misleading impression that religions as such (and in particular Islam) could receive legal protection of their reputation, another problem of the OIC resolutions on defamation of religions was that they appeared to legitimize anti-liberal measures, perhaps even draconian blasphemy laws.105 In Pakistan, one of the leading co-sponsors of the resolutions, ill-defined blasphemy offences can lead to a death sentence.106 Ample evidence indicates that such blasphemy laws disproportionately affect religious minorities, such as Christian minorities or the Ahmadiyyah Muslim Community in Pakistan. Such legislation generally has an intimidating effect on religious dissenters, critics, members of minorities, agnostics, or atheists.

During discussions on ‘combating defamation of religions’, Special Rapporteur Asma Jahangir, herself a human rights defender from Pakistan, pointed out that ‘freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule.’107 Such a supposed right would lead to the end of a free society based on open public discourse. By rejecting the OIC approach on defamation of religions, she, at the same time, clarified that no abstract antagonism exists between freedom of expression and freedom of religion or belief. Instead, the two rights share the general goal of safeguarding communicative freedom, to the maximum degree possible. This common purpose literally renders them neighbouring rights, protected in articles 18 and 19 of both the UDHR and the ICCPR. Although not identical in their precise contents, both rights largely move in the same direction.108

This certainly does not preclude conflicts. For instance, if polemical attacks on religious minorities, committed in the name of freedom of expression, poison societal relations to such a degree that members of the targeted groups refrain from publicly professing and manifesting their faith, then their freedom of religion or belief may be in serious peril. Extreme incidents of hate speech can actually become a case for restricting freedom of expression, in accordance with the criteria laid down for such situations in article 19(3) and article 20(2) of the ICCPR. However, whereas any restrictions on freedom of expression must remain connected to a very high threshold, defined by a number of criteria, the best and most useful way of countering hate speech is alternative speech: public statements of solidarity, fair media reporting, and clarifications aimed at eliminating negative stereotypes.

Underlining the importance of alternative speech to counter hate speech is a main result of a series of regional workshops organized by the Office of the High Commissioner for Human Rights which culminated in the Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence, elaborated in October 2012.109 While limiting the space for restrictive measures, which must always be reserved for extreme and at the same time clear (p. 31) cases, the Rabat Plan of Action calls for more speech as the most promising strategy to counter hate speech. What we need, above all, is more public initiatives, well-qualified media activities, a good representation of minorities in the media, and enhanced inter-group communication. It is important to challenge promoters of hatred who typically pretend to operate on behalf of a ‘silent majority’, and to send a strong message to groups targeted by hatred that they are not left alone. All of this presupposes a creative use of freedom of expression. Thus, even in a situation where some acts of free speech may threaten the rights of religious minorities, it would be wrong to assume a general antagonism between freedom of religion and freedom of expression.

3.  Freedom of Religion or Belief and Gender Issues: Synergies and Conflicts

One of the most controversial topics in the context of freedom of religion or belief concerns its relationship to gender issues. Traditionally, gender issues used to be discussed under the heading of equality of men and women. Since the 1990s the debate has been broadened to also include questions of sexual orientation and gender identity. The elimination of gender-related discrimination and stereotypes leads to conflicts with traditional, anti-egalitarian understandings of gender relations frequently (although not exclusively) defended in the name of various religions.

In many religious traditions, positions of religious authority—preachers, priests, imams, or rabbis—remain the preserve of men. In addition, patriarchal family structures are often justified by conjuring up deeply rooted religious interpretations of gender roles, a practice that negatively affects women’s rights broadly. This can even amount to denying girls any appropriate school education. Things typically become even tenser once issues of sexual orientation and gender identity enter the picture. Representatives of religious communities sometimes belong to the most ardent opponents of anti-discrimination policies in this area, and there have been many incidents of homophobic hate speech, hate acts, and violence committed or encouraged by religious leaders.

The role of freedom of religion or belief in this field is complicated and often misunderstood.110 One cannot reiterate enough that, as a right to freedom, it does not protect religious traditions per se, but instead empowers human beings to find their various ways within, without or beyond those traditions. To recall the specific indirect mode in which the human rights approach relates to religions—namely, via rights to freedom held by human beings—may help to avoid the simplistic equation of freedom of religion or belief with traditional religious ideas. Unfortunately, such a misunderstanding occurs frequently, especially when gender issues come into play. As a result, the relationship between gender equality and freedom of religion or beliefs is frequently misconstrued as a zero-sum game: any progress concerning gender equality allegedly indicates a defeat of religious freedom, and any insistence on freedom of religion or belief seems to hinder gender-related anti-discrimination policies—or so is the misperception.

In practice, the question of how the right to freedom of religion or belief relates to gender issues does not find one general answer, but largely depends on how people make actual use of their human rights in this contentious field. However, the ways in which individuals resort to their freedom of religion or belief differ widely. Freedom of religion or belief is a (p. 32) human rights norm to which liberals and conservatives, feminists and traditionalists can and do refer to promote their various and often conflicting religious concerns, including conflicting interests in the intersection of religious traditions and gender issues. In any case, in conjunction with freedom of expression, freedom of religion or belief empowers people to expose religious traditions to critical questions, public debates, and systematic challenges. By giving more breathing space to typically marginalized groups—including women, feminist theologians, and proponents of ‘queer theology’—freedom of religion or belief serves as a normative reference point for questioning patriarchal and homophobic tendencies within religious traditions. This can and does also lead to more gender-sensitive new readings of religious sources.

At the same time, one has also to deal with remaining difficult conflicts in this area. For instance, some religious communities have rejected anti-discrimination stipulations imposed by the State which they consider as an undue infringement of their corporate religious autonomy. There are cases of parents objecting to reproductive health issues becoming part of the school curriculum, for fear that this may collide with their religious or moral convictions. Registrars have refused, on religious reasons, to officiate at civil partnership ceremonies between homosexual couples. Dealing with such complicated conflicts requires a high degree of diligence with a view to doing justice, to the maximum degree possible, to all legitimate human rights claims involved. What is clear is that freedom of religion or belief cannot legitimately be invoked to justify cruel and harmful practices, like female genital mutilation, forced marriages, widow burning, enforced ‘sacred prostitution’, honour killings, homophobic harassments or denying girls their right to education. It furthermore remains important to exercise empirical and normative diligence whenever restrictions of freedom of religion or belief are deemed necessary. At times, supposed conflicts between freedom of religion and gender issues have turned out to rest on mere conjectures or prejudices.111 The general assumption that promoting gender equality and other gender issues always constitutes a legitimate purpose does not in itself suffice to justify restrictions on freedom of religion or belief; such restrictions must also have a legal basis, they must actually be conducive to pursuing the said purpose, and one has to demonstrate that less restrictive means are not available.

The relationship between freedom of religion or belief and gender issues thus shows many facets. While sometimes positive synergies can be found, other situations call for a fair balance which, to the maximum degree possible, should do justice to all human rights claims involved. There are also cases in which restrictions on religious freedom prove necessary in order to secure the fundamental rights of women, girls, and LGBTI persons. What remains important in any event is to overcome ideological misperceptions that portray the relevant human rights norms as essentially contradictory. Upholding a holistic approach that combines freedom of religion or belief and gender issues proves particularly important for persons whose experiences of discrimination fall in the intersection of both areas.

In the face of complicated and often highly emotional conflicts, persons sympathetic to strong gender-related anti-discrimination agendas have at times expressed their scepticism vis-à-vis freedom of religion or belief, a right which some simplistically associate with ‘conservative’ religious concerns. Some critics go as far as to treat freedom (p. 33) of religion or belief as a mere obstacle on the way to a society free from discrimination. Such an antagonistic perception, however, would not only be based on a total misunderstanding of freedom of religion or belief and its human rights nature; it could at the same time lead to a fragmented understanding of anti-discrimination agendas and thus ultimately undermine their human rights basis. Hence, sticking to a holistic human rights approach is not merely a theoretical postulate; it has direct consequences for human rights practice, in particular for those many people who are exposed to combined forms of vulnerability in the intersection of gender issues and religion.

IX.  The Role of the State

1.  Respecting, Protecting, and Promoting Freedom of Religion or Belief

The multifaceted responsibility of the State concerning human rights has been divided into three general aspects: States have obligations (a) to respect, (b) to protect, and (c) to fulfil human rights.

(a)  For all the significance of active State commitment on behalf of human rights, these rights themselves have a normative status prior to any legislative or administrative State activities. Consequently, States first of all have to respect human rights. With regard to freedom of religion or belief, this inter alia implies a clear understanding that individuals or groups do not need any permission by the State to be allowed to have, adopt, profess, and practise their religions and beliefs in private or in public. However, the treatment of unregistered or unrecognized religious practices as supposedly ‘illegal’, a problem existing in quite a number of countries, often shows lack of respect—perhaps even lack of awareness that freedom of religion or belief has the status of an inalienable right. Restrictive criminal or administrative laws—such as anti-blasphemy provisions, prohibition of conversion, mandatory exposure of religious affiliation in official documents, etc.—likewise indicate lacking respect for human rights. A particularly delicate issue is the role of religion in school education. Coercive practices involving children from minorities may even amount to indoctrination and thus disrespect of the forum internum dimension of freedom of religion or belief. The situation of formal or de facto religious instruction in schools always requires a high degree of sensitivity to ensure respect for freedom of religion or belief of children and parents.

(b)  Violations of human rights do not originate only from State agencies; they are quite often committed by non-State actors. Private companies may discriminate against minorities in their employment policies; self-appointed vigilante groups harass people in their neighbourhood for not complying with the expectation of religiously ‘correct’ behaviour; and religious communities themselves sometimes employ coercive means to discipline internal dissidents. The examples of violations of freedom of religion or belief committed by non-State actors are manifold. In such situations, the State nonetheless remains responsible for such violations, since it falls upon the Government to protect human rights effectively against possible violations from third parties. Depending on the precise nature of the problems, this may require different initiatives, such as legislation to support religious minorities against discrimination in the workplace, measures to protect people against forced conversion, or policies of combating religious terrorism or coercive forms of vigilantism.

(p. 34) (c)  Beyond the need for respect and effective protection, States should also provide an appropriate infrastructure that allows persons living under their jurisdiction actually to make use of their human rights. This aspect of their responsibility has been termed the obligation to fulfil. It includes the availability of suitable remedies, in particular an independent and efficient judiciary, accessible for everyone who feels his or her rights have been violated. Moreover, States should facilitate the acquisition of a collective legal personality status which religious communities may need to undertake important collective functions, such as employing professional staff, purchasing real estate to build places of worship, or establishing institutions of religious learning. The obligation to fulfil also covers a broad range of promotional activities, such as education about religious and belief diversity as part of the mandatory school curriculum, interreligious dialogue initiatives, or ensuring an appropriate representation of religious minorities in public media, to mention just a few examples.

2.  Disentangling State and Religion

In order to be able to operate as guarantor of freedom of religion or belief for everyone, the State should not identify itself with one particular religion or belief (or one particular type of religions) at the expense of equal treatment of the followers of other faiths. Taking the human rights approach seriously—with its constitutive elements of normative universality, freedom, and equality—requires providing an open framework in which religious and belief pluralism can unfold freely and without discrimination. This certainly presents a challenge to countries in which religions and State institutions are closely interwoven, in particular countries with an official religion or State religion.112

State religions are a widespread phenomenon especially in Islamic countries, often in combination with a constitutional status of the Islamic Shariah as a main source of legislation and jurisdiction. Official religions also exist in parts of Europe and South East Asia. The practical implications of having a State religion differ widely from country to country, ranging from a more or less symbolic superior rank of one religion to rigid policies of protecting the predominant role of the State religion against any competition, dissent, or criticism. In many supposedly religiously ‘neutral’ States, too, the constitution or other legal documents refer to the cultural heritage of the country in which some religious denominations are said to have played predominant roles. Legal reference to the predominant historical role of one particular religion can easily become a pretext for a discriminatory treatment of the adherents to other religions or beliefs. This danger increases if the invocation of a religious legacy is part of national identity politics.

International human rights law does not prescribe one particular model according to which the relationship between State and religion should be organized. Different societies may follow different paths and find different solutions, provided they honour their human rights obligations. State religions are not per se prohibited in international human rights law. However, as the Human Rights Committee has pointed out, States must ensure in any case that having an official religion—or making reference to the historical roles of a particular religion in legal documents—does not lead to a de jure or de facto discrimination of members of other religions and beliefs. In its general comment no. 22 the Committee insists that ‘the fact that a religion is recognized as a State religion or that it (p. 35) is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers.’113 At the end of the day, it seems difficult to conceive an application of the concept of a State religion that in practice does not have adverse effects on religious minorities. When the State officially bases itself on one particular religion, the law likely ceases to reflect the religious variety of the society, thereby possibly opening the floodgates to arbitrary action and religious discrimination in practice.

3.  Conflicting Understandings of Secularity and Neutrality

Disentangling State and religion may lead to a State with a secular constitution. The term ‘secular’—including its derivatives, ‘secularity’ and ‘secularism’—has always been exposed to conflicting and even contradictory interpretations; the same is true for ‘laïcité’ and its derivatives.114 On the one hand, the secularity of the State can represent a formal commitment to accommodate religious pluralism in a spirit of respect for everyone’s freedom of religion or belief. On the other hand, the term secularity can indicate a policy of deliberate non-commitment in this area. Moreover, it can even become a proxy for anti-religious attitudes which, if adopted as a State policy, have detrimental effects on the enjoyment of freedom of religion or belief for everyone. In short, secularity can mean inclusiveness as well as exclusiveness. It can epitomize open-mindedness with regard to religious pluralism or provide a pretext for tight political restrictions in this field.

A good starting point for a positive understanding of secularity is the principle of non-discrimination. In the context of freedom of religion or belief, non-discrimination requires a policy of deliberate ‘non-identification’ of the State with any particular religion or belief in order to be equally fair, open, and inclusive to people of different faith orientations living under its jurisdiction. Non-identification of the State with any particular religion does not necessarily require a clear-cut separation between State and religious communities. Rather, it implies an open infrastructure that gives breathing space to the existing and emerging religious or belief pluralism on the basis of equality and non-discrimination. Neither should the Government use (or rather abuse) religion as a source of its own political legitimacy, nor should it privilege one particular tradition, perhaps with a view of promoting national cohesion or for any other political purposes. In order to make it clear that such deliberate non-identification, despite the prima facie negative formulation, has a positive significance one may further qualify it as ‘respectful non-identification’.115 After all, it is out of respect for everyone’s freedom of religion or belief that the State is supposed to exercise and institutionalize such deliberate self-restraint. Moreover, secularity in this positive understanding is not a purpose in itself but, instead, has an auxiliary function in the service of freedom of religion or belief and its non-discriminatory and inclusive realization. In other words, it has the status of a ‘second order’ principle whose normative persuasiveness originates from higher (i.e. first order) principles, namely, freedom of religion or belief in conjunction with the requirement of non-discriminatory implementation. It seems reasonable to assume that a thorough (p. 36) implementation of freedom of religion or belief, from its inner logic, will most likely lead to one or another form of secular State in this positive sense.116

A completely different concept follows from comprehensive secularist world-views designed to replace traditional religions, sometimes by using similar means and institutions, including secularist missionary activities, community rituals, and the erection of places of worship. Classic examples include George Holyoake’s ‘Secular Society’,117 the German ‘Monistenbund’ headed by Darwin’s ardent disciple Ernst Haeckel,118 and Auguste Comte’s vision of a scientific ‘religion de l’humanité’.119 Professing such secularist world-views, many of which emerged in the nineteenth century, naturally falls within the realm of freedom of religion or belief. However, once a secularist world-view gets directly entangled with State institutions, the effects are strikingly similar to those of traditional State religions. Indeed, claims of secularism can become ideological ingredients of authoritarian control politics; and they have been invoked to justify restrictive agendas of removing any visible or audible religious manifestations from the public sphere. Those not following the secularist State ‘creed’ may run the risk of systematic discrimination and exposure to public hostility. The analogy to authoritarian policies in the name of a traditional State religion is evident.120

The two notions of secularity have little in common, and it is important to keep them clearly apart in order to avoid confusion. It may therefore be advisable to distinguish between ‘political secularity’ on the one hand and the various forms of ‘doctrinal secularism’ on the other.121 While political secularity, understood as a constitutional ‘second order’ principle, operates in the service of a non-discriminatory implementation of freedom of religion or belief for all, doctrinal secularism, once directly guiding State activities, may strive for an ideological priority over freedom of religion or belief. And while political secularity helps to create an inclusive space for the free unfolding of religious and belief pluralism, doctrinal secularism can lead to a shrinking space. This is an important difference, indeed a difference not merely of degree but of principle. In political reality, however, there may be overlaps and grey areas. Whether particular secularist agendas are pursued as a purpose in itself or in the service of a fair implementation of freedom of religion or belief for everyone may not always be clear at first glance. Yet it is all the more important to aspire to conceptual precision in this regard in order to ensure that the State can credibly fulfil its role as guarantor of freedom of religion or belief in fairness to everyone.

(p. 37) Similar ambiguities occur when it comes to discussing the notion of State ‘neutrality’ towards religions or beliefs. Neutrality can describe the aspiration of the State to remain fair and impartial towards everyone in issues of religious diversity. While knowing that this is easier said than done, the aspiration as such still makes a lot of sense. It seems indeed difficult, if not impossible, to spell out any principles of political or judicial fairness with regard to issues of religious diversity without assuming at least serious attempts on the side of State institutions of being impartial—and in this sense ‘neutral’.

However, in public debates very different notions of ‘neutrality’ may arise, a situation that leads to a lot of confusion. Sometimes, neutrality is used to indicate a general ‘hands off’ approach, thus suggesting that the State should not get involved in any dealings with religions or beliefs and keep the public discourse clear of religious notions or ideas. Such a restrictive understanding comes close to restrictive notions of secularism, as discussed above. As Marta Cartabia observes, this can lead ‘to insensitivity—if not distrust—to the religious fact’.122 At times, neutrality vis-à-vis religions or beliefs is also mistaken for ‘value-neutrality’. Leaving aside the question whether an attitude of ‘value-neutrality’ is possible at all, it should certainly not be confused with neutrality as an ingredient of fairness, which in a way constitutes a ‘value’ broadly speaking.

In the face of many confusing debates, in which different and conflicting ‘neutralities’ are invoked, some scholars have proposed to discard this notion altogether. ‘The illusion of neutrality’ is the title of a speech given by Jonathan Chaplin.123 Moreover, it has been argued that the very idea of State neutrality inevitably leads to hypocrisy in that the term merely cloaks existing hegemonies. In fact, there are many examples that rules, laws, or practices, which on the surface seem to be neutral, actually reflect and reinforce predominant cultural or religious practices. Although these and other objections against employing the term ‘neutrality’ are more than understandable, it nonetheless seems problematic to jettison the concept altogether. How could we envisage fair and inclusive procedures, especially in State institutions, without the idea of an impartial and thus ‘neutral’ arbiter? Maybe admitting to being biased would be an honest starting point for an open discussion, but how can we move on from that without at least the aspiration to overcome such biases? And how should we define the purpose of overcoming biases without resorting to the notion of neutrality or a similar notion?

Neutrality is a complex notion, often hiding conflicting ideas or concealing existing hegemonies. And yet it will be difficult to abandon this concept without proposing some sort of functional equivalent, which would likely invite similar criticism and suspicion. Rather than discarding the term, it may thus be more useful to apply it in a cautious manner, i.e. with the awareness that it can make sense only as a normative aspiration to be fair and inclusive, not as the description of any status quo.124 In the face of many examples of prima facie ‘neutral’ rules with discriminatory implications no one should use the term in a naïve way. State representatives pretending to have fully implemented (p. 38) the idea of neutrality when dealing with religious diversity thus inadvertently display a lack of understanding of how complex these issues actually are.

X.  Conclusion

At the beginning of this chapter we sketched out two different sceptical attitudes vis-à-vis freedom of religion or belief. A clarification of the basic normative principles underlying this human right may help to dispel some of the fears expressed by (some) religious traditionalists and by (again, some) liberal secularists.125 With regard to specific anxieties that still exist among religious traditionalists, we have tried to point out:

  • •  that the consistent focus on the human being as rights holder is certainly not tantamount to promoting an anthropocentric ideology designed to replace theocentric or cosmocentric world-views;

  • •  that the broad and inclusive conceptualization of freedom of religion or belief, far from leading to trivialization, can well be combined with a clear appreciation of the existential dimension that religions or beliefs usually have for their followers;

  • •  that freedom of religion or belief fully acknowledges the community dimensions of religious life, provided communities refrain from exercising coercion on individual members;

  • •  and that freedom of religion or belief can provide the criteria for distinguishing inclusive from exclusive forms of secularity thereby serving as a yardstick to criticize doctrinal versions of State secularism, e.g. restrictive tendencies to push religious manifestations back into a mere private sphere.

Concerning typical fears expressed by some liberals and secularists, it should have become clear:

  • •  that freedom of religion or belief, like any other human right, empowers human beings rather than according legal protection to religions in themselves;

  • •  that it recognizes all human beings in their identity-shaping convictions and convictions-based practices instead of privileging the ‘homo religiosus’ in any exclusive sense;

  • •  that it functions as a gateway to freedom in general by protecting a broad range of free activities in the area of thought, conscience, religion or belief; and

  • •  that it can provide powerful arguments for defending and actively promoting an inclusive secularity of the State as a means to provide freedom of religion or belief for everyone on the basis of equality.

Such clarifications may be helpful, but they are not sufficient. Merely rejecting typical misunderstandings does not suffice to win the hearts and minds of people and foster their appreciation and, if possible, active commitment on behalf of freedom of religion or belief. There is also a need to make freedom of religion or belief more appealing to both reluctant traditionalists and reluctant liberals. The following concluding remarks briefly sketch out some elements of a possible outreach strategy towards both camps.

(p. 39) To begin with religious traditionalists, some of them may more easily value freedom of religion or belief when living in a minority situation or, alternatively, when listening to co-religionists who elsewhere live as a minority. Alexis de Tocqueville is an interesting example. In his famous report on his visit to the United States of America during the 1830s he mentioned discussions with American Catholic priests who not only praised religious liberty but even appreciated the secular US constitution.126 De Tocqueville found this positive attitude almost unbelievable against the background of his experience in France where Catholicism, after the trauma of the French Revolution, had returned to its powerful hegemonic status. This illustrates the difference which the minority situation can make in appreciating the practical advantages of freedom of religion or belief. The experiences of US Catholics later had an impact on the Second Vatican Council’s declaration Dignitatis Humanae which officially ended the long period of Catholic resistance against freedom of religion or belief.

Today, in the age of globalization, there is virtually no religious community which does not have followers somewhere living in a minority situation. One may think of Muslim minorities in Europe, Hindu minorities in Malaysia or Indonesia, Buddhist minorities in India or Bangladesh, Christians or atheists in the Middle East, and many other examples. Those who really care for their own religion usually also care for their co-religionists in other parts of the world, in particular if they suffer as minorities from discrimination, harassment, or even persecution. However, practising solidarity with them in a credible and consistent manner implies opening up also to the problems other minorities are confronted with. This can become an entry point for a broader commitment on behalf of freedom of religion or belief—everywhere and for everyone.

Minorities are the obvious and most likely victims of policies which utilize religion for fostering national identity or for any other mundane political purposes. In extreme cases of politicizing religion for the demarcation of national identity, the space for manifesting religious diversity may collapse altogether. As a result, members of religious or belief minorities not only carry the stigma of unbelievers and heretics; they may at the same time encounter suspicion as potential political traitors. However, in the long run, such a repressive atmosphere undermines any possibility of expressing authentic faith, also for members of religious majorities. In other words, dealing with the obvious problems that minorities typically face in regimes which impose the hegemony of one religion or ideology, may pave the way to understand that also majority religions ultimately benefit from an open space in which everyone can express and live up to their conviction freely and without discrimination. Indeed, many traditional believers from different denominational backgrounds today agree that overcoming the amalgamation of religious authority and the State’s coercive power is finally in the interest of all, i.e. both minorities and majorities. Hence, rather than promoting a particular religious faith or identity, what the State should do is empower human beings by effectively guaranteeing everyone’s freedom of religion or belief.

The empowerment of human beings may sound quite natural to liberals, and many liberals see themselves as the obvious promoters of human rights in general. What is sometimes missing, however, is a clear awareness that issues of religious conviction and practice can be most important elements of people’s identities which any empowerment (p. 40) strategy must accommodate. Without such awareness liberalism can sink into what one could call mere ‘lifestyle liberalism’, i.e. a complacent attitude which only recognizes a certain urban, ironic, and religiously dispassionate lifestyle while more or less turning a deaf ear to the demands, wishes, and needs of people outside of specific liberal milieus in that narrow understanding.

The danger that liberalism can lose its own more demanding normative aspirations is not a new experience. Already in the eighteenth century, Moses Mendelssohn criticized tendencies within the various liberal Enlightenment philosophies of his day to breed new forms of hegemony and narrow-mindedness, which he feared would particularly threaten religious minorities. Also in the twenty-first century this danger is far from over.127 Freedom of religion or belief should thus become an incentive for liberals to recapture their own normatively demanding traditions. This includes the insight that empowering human beings above all requires a complex anthropology and an appreciation of real diversity which may go far beyond the acceptance of convictions that are similar to one’s own beliefs and ways of life.

Footnotes:

1  Max Weber, Protestant Ethics and the Spirit of Capitalism (Charles Scriber’s Sons 1958) 181.

2  Max Weber, Politics as a Vocation (Facet Books Social Ethics Series, Fortress Press 1965) 54.

3  See Pope Pius IX, Syllabus Errorum (Vatican 1864) <http://www.ewtn.com/library/PAPALDOC/P9SYLL.HTM> accessed 22 September 2015, para 79.

4  See Vatican Council II, Dignitatis Humanae (Vatican 1965) <http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html> accessed 22 September 2015.

5  For details see below chapter 1.1. on freedom to adopt, change, or renounce a religion or belief.

6  Mary Ann Glendon, ‘Is Religious Freedom an “Orphaned” Right?’ in Malcolm D. Evans, Peter Petkoff, and Julian Rivers (eds), Changing Nature of Religious Rights under International Law (OUP 2015) 1–2.

7  Gilles Kepel, La Revanche de Dieu: Chrétiens, Juifs et Musulmans à la Reconquête du Monde (Seuil 1991).

8  Heiner Bielefeldt, ‘Misperceptions of Freedom of Religion or Belief’ (2013) 35 Hum Rts Q 33.

9  See Déclaration des Droits de l’Homme et du Citoyen art 10: ‘Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la Loi.’ Cited after <www.legifrance.gouv.fr./Droit-francais/Constitution/Declaration-des-Droits-de-l-Homme-et-du-Citoyen-de-1789> accessed 22 September 2015.

10  We are aware that each of the terms used here—‘traditionalists’, ‘liberals’, ‘secularists’—cover many different meanings and positions. Since it is not the purpose of this chapter to analyse those tendencies in themselves, we use these terms in a very loose manner.

11  For more details see below chapter 5.4. on defenders of freedom of religion or belief and non-governmental organizations.

12  We are not talking here about ‘transhumanism’ as an ideology inspired by evolutionary biology, according to which the human species will transcend itself by means of genetic enhancement and other technological devices.

13  Far from being a precisely defined concept, the term ‘tolerance’ harbours different and even conflicting meanings. On the one hand, tolerance stands for broadmindedness, the readiness to accommodate diversity, the ability to cope with ambiguities and a relaxed attitude towards competing positions and world-views. On the other hand, one may think about the element of reluctance that the word entails, since ‘tolerare’ originally means to endure something painful or unpleasant. Combining the positive and the negative connotations, tolerance can mean an attitude of a more or less reluctant accommodation of diversity. Contrasting freedom of religion or belief to tolerance as a personal attitude would not make much sense. Instead, it is only tolerance as part of ‘State politics’ that we can meaningfully compare with freedom of religion or belief. The ‘politics of tolerance’ in fact presents an alternative to publicly ensuring everyone’s equal rights in the area of religion or belief. For a thorough discussion of the various meanings of tolerance see the comprehensive study by Rainer Forst, Toleranz im Konflikt: Geschichte, Gehalt und Gegenwart eines umstrittenen Begriffs (Suhrkamp 2003).

14  See Ananda W. P. Guruge, ‘Emperor Asoka’s Place in History: A Review of Prevalent Opinions’ in Anuradha Seneviratna (ed), King Asoka and Buddhism: Historical and Literary Studies (Buddhist Publication Society 1994).

15  See Abdullahi Ahmed An-Na’im, ‘Religious Minorities under Islamic Law and the Limits of Cultural Relativism’ (1987) 9 Hum Rts Q 1.

16  See Thomas Aquinas, The Summa Theologica of St. Thomas Aquinas (Fathers of the English Dominican Province tr, 2nd and rev edn, Burns Oates & Washbourne 1920) pt II-II, question 10, art 8.

17  See Brian Tierney, ‘Religious Rights: An Historical Perspective’ in Johan David van der Vyver and John Witte (eds), Religious Human Rights in Global Perspective (Martinus Nijhoff 1996) 32–3.

18  See Heinrich Lutz, Zur Geschichte der Toleranz und Religionsfreiheit (Wege der Forschung, Wissenschaftliche Buchgesellschaft, Abt. Verlag 1977).

19  See Benjamin J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (Harvard University Press 2007).

20  See Charles H. O’Brien, Ideas of Religious Toleration at the Time of Joseph II: a Study of the Enlightenment among Catholics in Austria, vol 59 (Transactions of the American Philosophical Society, American Philosophical Society 1969).

21  Thomas Paine, Rights of Man (H. B. Bonner ed, J. M. Dent & Sons 1906) 66.

22  Immanuel Kant, ‘What Is Enlightenment?’ in Mary J. Gregor (ed) (tr), Practical Philosophy (Cambridge edition of the Works of Immanuel Kant, CUP 1996) 21.

23  Cited from Etienne Méjan in Honoré-Gabriel de Riqueti Mirabeau and Etienne Méjan, Collection complette des travaux de M. Mirabeau l’ainé, à l’Assemblée nationale. Précédée de tous les Discours et Ouvrages du même Auteur, prononcés ou publiés en Provence, pendant le cours des élections (Lejay 1791) 61 (our translation).

24 [E]t cognoscent omnes quomodo non est nisi religio una in rituum varietate’ at Khrypffs Nicholas, Raymond Klibansky, and Hildebrand Bascour, De Pace Fidei: Cum Epistula ad Ioannem de Segobia (Medieval and renaissance studies supplement 3, In Aedibus Instituti Warburgiani 1956) 7.

25  In De pace fidei the term ‘religion’ mostly (not always) occurs in the singular.

26  Voltaire, Candide, ou l’Optimisme (Textes Littéraires Français, Christopher Thacker ed, Droz 1968) 166.

27  Jean-Jacques Rousseau, Emile, ou De l’éducation (François Richard and Pierre Richard eds, Garnier Frères 1961) 362: ‘Le culte que Dieu demande est celui du cœur; et celui-là, quand il est sincère, est toujours uniforme.’

28  Immanuel Kant, Religion within the Boundaries of Mere Reason and Other Writings (Allen W. Wood and George Di Giovanni eds, trs, CUP 1998) 113ff.

29  See ‘Die Erziehung des Menschengeschlechts’ in Gotthold Ephraim Lessing, Die Erziehung des Menschengeschlechts und andere Schriften (Reclam 1965) 7–31.

30  Kant, Religion within the Boundaries of Mere Reason and Other Writings, 127.

31  George Jacob Holyoake, English Secularism: A Confession of Belief (Open Court 1896) 35.

32  See Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment: Philosophical Fragments (Edmund Jephcott tr, Gunzelin Schmid Noerr ed, Stanford University Press 2002).

33  Moses Mendelssohn, Jerusalem, or, on Religious Power and Judaism (Allan Arkush tr, University Press of New England 1983) 136.

34  Ibid., 138.

35  Ibid., 137.

36  The above short sketches of the politics of tolerance and post-traditional unification projects, illustrated by a few examples from European history, are certainly not meant to give an overview of those themes.

37  The focus on human beings should not be misperceived as excluding the communitarian, corporate or infrastructural dimensions within freedom of religion or belief. But all those dimensions must be consistently conceptualized from the premise that human beings are the relevant rights holders.

38  Asma Jahangir, ‘Address to the European Parliament’ (Strasbourg, 18 June 2008) <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20080618+ITEM-005+DOC+XML+V0//EN> accessed 22 September 2015.

39  Quoted from Plato, Theaetetus (John Henry McDowell tr, Clarendon Press 1996) 16.

40  See Ludwig Feuerbach, Vorlesungen über das Wesen der Religion (Ludwig Feuerbach’s Sämtliche Werke, Otto Wigand 1851) 241.

41  See for example the opening statement by High Commissioner, Zeid Ra’ad Al Hussein: ‘In the Takfiri mind, as we have seen in Nigeria, Afghanistan, Pakistan, Yemen, Kenya, Somalia, Mali, Libya, Syria and Iraq, and throughout the world where they have attacked innocent people, including on 9/11, there is no love of neighbour—only annihilation to those Muslims, Christians, Jews and others (altogether the rest of humanity) who believe differently to them.’ ( Zeid Ra’ad Al Hussein, ‘Opening Statement by Zeid Ra’ad Al Hussein United Nations High Commissioner for Human Rights at the 27th Session of the Human Rights Council’ (Geneva, 8 September 2014) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14998> accessed 22 September 2015).

42  See Heiner Bielefeldt, Auslaufmodell Menschenwürde? Warum sie in Frage steht und warum wie sie verteidigen müssen (Herder 2001).

43  See Johannes Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration (Pennsylvania Studies in Human Rights, University of Pennsylvania Press 2009) 28–9.

44  See Alan Gewirth, ‘Human Dignity as the Basis of Rights’ in Michael J. Meyer and William A. Parent (eds), The Constitution of Rights: Human Dignity and American Values (Cornell University Press 1992).

45  Article 1 of the UDHR confirms this normative structure by proclaiming: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

46  Kant, ‘On the Common Saying: That May Be Correct in Theory, but It Is of No Use in Practice’ in Mary J. Gregor (ed) (tr), Practical Philosophy (Cambridge edition of the works of Immanuel Kant, CUP 1996) 302.

47  See Arlene Swidler, Human Rights in Religious Traditions (Pilgrim Press 1982).

48  See Genesis 1:27.

49  See Psalm 8:5.

50  Marcus Aurelius, The Communings with Himself of Marcus Aurelius Antoninus, Emperor of Rome (Charles Reginald Haines tr, Harvard University Press 1987) 335: ‘And thou forgettest how strong is the kinship between man and mankind, for it is a community not of corpuscles, of seed or blood, but of intelligence. And thou forgettest this too, that each man’s intelligence is God and has emanated from Him.’

51  See Qur’an 33:72.

52  See Marcus G. Singer, ‘The Golden Rule’ (1963) 38 Philosophy 293.

53  An obvious example is the declaration Dignitatis Humanae in which the Catholic Church endorses religious freedom, a human right which the Church had previously rejected. See Vatican Council II, Dignitatis Humanae.

54  See the proposed amendment to draft article 1 submitted by Brazil in the Third Committee of the General Assembly at A/C.3/215.

55  A/C.3/SR.92.

56  A/C.3/SR.96.

57  Ibid.

58  See A/C.3/SR.99.

59  Kofi Annan, ‘United Nations Needs Support of All Religions, Secretary-General Tells Annual Pre-Assembly Religious Service’ (UN Press release SG/SM/7950, 12 September 2001) <www.un.org/press/en/2001/sgsm7950.doc.htm> accessed 22 September 2015.

60  See Qur’an 2:30.

61  See e.g. Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton University Press 2002) 104ff.

62  See Tore Lindholm, ‘Philosophical and Religious Justifications of Freedom of Religion or Belief’ in Tore Lindholm, W. Cole Durham, and Bahia Tahzib-Lie (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff 2004). See also Nazila Ghanea, ‘Faith in Human Rights, Human Rights in Faith’ in Nazila Ghanea (ed), The Challenge of Religious Discrimination at the Dawn of the New Millennium (Martinus Nijhoff 2003).

63  See David Feldman, ‘Human Dignity as a Legal Value: Part 1’ (1999) win Public Law 682; David Feldman, ‘Human Dignity as a Legal Value: Part 2’ (2000) spr Public Law 61.

64  As long as this does not negatively affect the rights of others.

65  See Peter L. Berger, ‘On the Obsolescence of the Concept of Honor’ in Stanley Hauerwas and Alasdair C. MacIntyre (eds), Revisions: Changing Perspectives in Moral Philosophy (University of Notre Dame Press 1983).

66  The OIC renamed itself in 2011 as the Organization of Islamic Cooperation.

67  ‘The Russian Orthodox Church’s Basic Teaching on Human Dignity, Freedom and Rights’ (The Russian Orthodox Church, 20 December 2011) <https://mospat.ru/en/documents/dignity-freedom-rights./> accessed 22 September 2015.

68  On the manifold ways the concept of dignity is invoked in this field see Reva B. Siegel, ‘Dignity and Sexuality: Claims on Dignity in Transnational Debates over Abortion and Same-Sex Marriage’ (2012) 10 Icon-Int J Const Law 355.

69  In 1997 the ‘Interaction Council’, a group composed of high-ranking former State representatives, submitted to the United Nations the draft of a Universal Declaration of Human Responsibilities, see ‘A Universal Declaration of Human Responsibilities’ (InterAction Council, 20–22 April 1997) <http://interactioncouncil.org/a-universal-declaration-of-human-responsibilities> accessed 22 September 2015. Their purpose was to have the UN formally endorse this draft declaration on the occasion of the 50th anniversary of the UDHR (in December 1998). Fortunately, this project failed. Amnesty International and other NGOs had criticized the draft declaration’s vague language which would have rendered the text vulnerable to authoritarian readings. Yet the major problem was that by pretending to add a supposedly new moral dimension spelled out in an extra document, the draft Universal Declaration of Human Responsibilities implicitly denied the UDHR its own moral force. The adoption of this text would have been the worst possible birthday gift to the UDHR. It would have weakened the mother document of international human rights protection by reinforcing superficial positivistic perceptions according to which the rights based approach lacks any inherent moral significance and thus calls for complementary actions, be it in the name of human responsibility or, more recently, under the auspices of ‘traditional values’.

70  For details see below chapter 2.2. See also Nazila Ghanea, ‘Phobias and “Isms”: Recognition of Difference or the Slippery Slope of Particularisms?’ in Nazila Ghanea, Raphael Walden, and Alan Stephens (eds), Does God Believe in Human Rights? (Martinus Nijhoff 2007).

71  See e.g. A/RES/65/224.

72  HRI/GEN/1/Rev.9, p 205 para 2.

73  For details see below chapter 5.2. on limitations.

74  See Roger Trigg, Equality, Freedom, and Religion (OUP 2012) 102ff.

75  See Sami K. Martin, ‘“Star Wars” Is Religion for 15,000 in Czech Republic’ (Christian Post, 20 December 2011) <www.christianpost.com/news/star-wars-is-religion-for-15000-in-czech-republic-65292> accessed 22 September 2015.

76  See ‘About’ (Church of the Flying Spaghetti Monster) <www.venganza.org/about/> accessed 22 September 2015.

77  See T. Jeremy Gunn, ‘The Complexity of Religion and the Definition of “Religion” in International Law’ (2003) 16 Harv Hum Rts J 189.

78  A/RES/36/55, preambular para 4.

79  Campbell and Cosans v UK Apps nos 7511/76 and 7743/76 (ECtHR, judgment of 25 February 1982) para 36.

80  See W. Cole Durham Jr and Brett G. Scharffs, Law and Religion: National, International, and Comparative Perspectives (Aspen 2010) 46.

81  See also Michael Wiener, ‘The Mandate of the Special Rapporteur on Freedom of Religion or Belief—Institutional, Procedural and Substantive Legal Issues’ (2007) 2 Religion and Human Rights 3.

82  For details see below chapter 1.3. on the right to manifest one’s religion or belief.

83  For details see below chapter 5.2. on limitations.

84  For details see below chapter 1.2. on freedom from coercion.

85  For details see below the various subchapters under chapter 1.3. on the right to manifest one’s religion or belief.

86  For a critical analysis see Amartya Sen, ‘Human Rights and Asian Values’ (Sixteenth Morgenthau Memorial Lecture on Ethics & Foreign Policy, Carnegy Council on Ethics and International Affairs 1998).

87  For more details see below chapter 1.1. on freedom to adopt, change, or renounce a religion or belief.

88  Trigg, Equality, Freedom, and Religion 106.

89  See Rex J. Ahdar and Ian Leigh, Religious Freedom in the Liberal State (2nd edn, OUP 2013) 120.

90  The observations of subchapter VII. are largely based on Heiner Bielefeldt, ‘Equality and Diversity in Conceptualizing Freedom of Religion or Belief’, in W. Cole Durham Jr and Donlu Thayer (eds), Religion and Equality: Law in Conflict (Ashgate 2016) Preface (forthcoming).

91  See e.g. article 2 of the UDHR.

92  For details see below the various subchapters under chapter 1.3. on the right to manifest one’s religion or belief.

93  Against a possible misperception, it should be reiterated that the focus on human beings should not amount to a marginalization of the communitarian, institutional, and infrastructural dimension of freedom of religion or belief.

94  This misunderstanding already occurred in Burke’s criticism of human rights as published in 1790. See Edmund Burke, Reflections on the Revolution in France (Dent 1910).

95  For details see below chapter 2.1. on discrimination on the basis of religion or belief/interreligious discrimination/tolerance.

96  One example is the conscience-based refusal of doctors or nurses to get involved with carrying out abortions, for details see below chapter 1.3.11. on conscientious objection.

97  See Marie-Claire Foblets, Katayoun Alidadi, Jørgen S. Nielsen, and Zeynep Yanasmayan (eds), Belief, Law and Politics: What Future for a Secular Europe? (Ashgate Publishing 2014).

98  Gabrielle Caceres, ‘Reasonable Accommodation as a Tool to Manage Religious Diversity in the Workplace: What About the “Transposability” of an American Concept in the French Secular Context?’ in Katayoun Alidadi, Marie-Claire Foblets, and Jogchum Vrielink (eds), A Test of Faith?: Religious Diversity and Accommodation in the European Workplace (Ashgate 2012) 284.

99  Ibid., (emphasis added).

100  Aristotle, The Nicomachean Ethics (J. E. C. Welldon tr, Prometheus Press 1987) book V, ch 6.

101  It should not be forgotten that Aristotle justified slavery as a ‘natural’ and just institution.

102  For details see below chapter 3.5. on minorities.

103  John Rawls, A Theory of Justice (OUP 1973). The ‘veil of ignorance’ within the original position as constructed in Rawls’s Theory of Justice does not filter out contextual factors in general, as many critics have asserted, but merely illustrates the need of abstracting from personal egoistic interests and biases.

104  A/CONF.157/23, chapter I, para 5.

105  See Jeroen Temperman, ‘Blasphemy, Defamation of Religions and Human Rights Law’ (2008) 26 Neth Q Hum Rights 517.

106  See Freedom House, Policing Belief: The Impact of Blasphemy Laws on Human Rights (Freedom House 2010) 69–87 (on Pakistan).

107  See A/HRC/2/3, para 36.

108  For details see below chapter 4.1. on freedom of religion or belief in its interrelatedness with freedom of opinion and expression.

109  See A/HRC/22/17/Add.4, annex, appendix.

110  For details see below chapter 3.1. on women.

111  For instance, to act on the assumption that women typically wear the Islamic headscarf against their will, seems empirically problematic.

112  For details see below chapter 2.2. on State religions.

113  HRI/GEN/1/Rev.9, p 206, para 9.

114  See Rajeev Bhargava (ed), Secularism and Its Critics (Oxford India Paperbacks, OUP 1999).

115  See Heiner Bielefeldt, Muslime im säkularen Rechtsstaat: Integrationschancen durch Religionsfreiheit (Transcript 2003).

116  For this understanding of secularism see Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience (Harvard University Press 2011).

117  See Holyoake, English Secularism: A Confession of Belief.

118  See Hermann Lübbe, Säkularisierung: Geschichte eines ideenpolitischen Begriffs (K. Alber 1965) 42.

119  See Auguste Comte, Système de politique positive; ou, traité de sociologie instituant la religion de l’humanité (L. Mathias; Carilian-Goeury et Vor Dalmont 1851).

120  See David Little, ‘The Global Challenge of Secularism to Religious Freedom’ in Jaime Contreras and Rosa María Martínze de Codes (eds), Trends of Secularism in a Pluralistic World (Madrid: Iboamericana 2013) 31–58.

121  See also W. Cole Durham Jr, ‘Religious Freedom in a Worldwide Setting: Comparative Reflections’ in Mary Ann Glendon and Hans F. Zacher (eds), Universal Rights in a World of Diversity: The Case of Religious Freedom (The Pontifical Academy of Social Sciences 2012) 368–71; T. Jeremy Gunn, ‘Secularism, the Secular, and Secularization’ in Jaime Contreras and Rosa María Martínez de Codes (eds), Trends of Secularism in a Pluralistic World (Madrid: Iboamericana 2013) 59–105.

122  Marta Cartabia, ‘The Challenges of “New Rights” and Militant Secularism’ in Mary Ann Glendon and Hans F. Zacher (eds), Universal Rights in a World of Diversity: The Case of Religious Freedom (The Pontifical Academy of Social Sciences 2012) 447.

123  See Jonathan Chaplin, ‘The Illusion of Neutrality: Why Maintaining Diversity in Our Public Discourse Enriches Democracy’ (Annual Sir Graham Lecture 2013, Auckland, Maxim Institute 2013).

124  A context-sensitive inclusive concept of neutrality has been proposed by Roland Pierik and Wibren van der Burg, ‘What Is Neutrality?’ (2014) 27 Ratio Juris 496.

125  These concluding remarks are largely modelled on Heiner Bielefeldt, ‘Privileging the “Homo Religiosus”? Towards a Clear Conceptualization of Freedom of Religion or Belief’ in Malcolm D. Evans, Peter Petkoff, and Julian Rivers (eds), Changing Nature of Religious Rights under International Law (OUP 2015) 21–4.

126  See Alexis de Tocqueville, Democracy in America (first published in 1835, Barnes & Noble 2003) 281.

127  The aggressive debate on ritual male circumcision which, triggered by the decision of a district court in Cologne, took place in Germany in 2012 is just one example revealing the danger of narrow-mindedness also within some liberal milieus. The problem was not that people presented critical views on male circumcision. Rather, it was the total unwillingness among persons, many of whom would likely call themselves ‘liberals’, to even listen to individuals or communities of a different orientation, and the inability to appreciate that there may be issues of religious identity at stake that deserve to be taken seriously and examined carefully. See Heiner Bielefeldt, ‘Der Kampf um die Beschneidung. Das Kölner Urteil und die Religionsfreiheit’ (2012) 9 Blätter für Deutsche und Internationale Politik 63.