The ‘religion and law’ landscape in Britain has changed considerably and rapidly over the past twenty years. This is partly because the religious landscape itself is more complex than at any time within living memory, but mainly because the legislative picture is quite different. Not only is it much more crowded – politics has endured something of legislative frenzy of late – but it is now dominated by two huge features – the Human Rights Act (particularly Article 9 providing for freedom of thought, religion and conscience) and the Equality Act 2010 (which protects from discrimination “religion or belief” alongside seven other “protected characteristics”) that were absent 20 years ago.
The result has been something between confusion and consternation. In the words of legal scholar Russell Sandberg, what was once the default position of a “passive tolerance of religious difference” has been superseded “by the prescriptive regulation of religion and the active promotion of religious liberty as a right.” (Russell Sandberg, Religion and Law (Cambridge: Cambridge University Press, 2011), p. 195) At best, such regulation of religion is unfamiliar; at worst, it is ominous.
It is ironic that, in the midst of these interesting times, parties of very different persuasions have cast longing glances across the Atlantic to a system that appears to offer salvation, albeit salvation of different kinds. To the secular minded, America’s deep-rooted secularism is the only medicine for what ails us. Only secular states – in the sense of those that completely withdraw any support for religion (and indeed, in as far as its possible, any involvement with religion) – are ‘fair’. To the religious (or at least some of them), it is America’s no less deep-rooted commitment to religious freedom that is needed. Only free states – in the sense of those who vigorously protect the right of the religious to live as they wish – are ‘just’.
There is, however, a significant difference between British and American situations, which, whilst not religious in the narrow sense, is highly relevant. “If the baseline is government inactivity,” Rex Adhar and Ian Leigh write, “then doing nothing [vis-à-vis religions] is ‘neutral’…When the state funded very little, a baseline of government inactivity would differ little from a baseline of analogous secular activities.” However, “in an era when governments spend a sizeable proportion of GDP and fund all manner of social programmes and providers, a baseline of government inactivity looks far from neutral.” (p. 117) This is crucial and frequently overlooked. A neutral policy towards religion, such as is supposedly the goal of the secular polity, might be possible in the kind of a minimal state such as existed a century ago in the West. Since then, however, the state has taken upon itself a great many more responsibilities. It taxes more, spends more, acts more, and regulates more. It cannot, by its very nature, be neutral towards religion.
Religious Freedom in the Liberal State was first published in 2005. It says much of the speed at which this issue is changing that this second edition has been substantially revised and extended, a mere eight years later. The book is separated into three parts which allow the authors to show their philosophical strength as well as their legal acumen. Part one looks at Christian and Liberal perspectives on religion and religious liberty; part two analyses the legal and constitutional issues and limits to religious freedom, and part three, the most substantial, grounds the discussion is a series of specific issues relating to families, education, medical treatment, employment, religious autonomy, and religious expression. This last part will, no doubt, be the most useful to readers as it offers as up-to-date an analysis of the status and position of religion in a series of important legal fields as any published book today will do.
This analysis, however, would be much weaker without the preceding sections, in particular the first, in which the authors make clear that they come at the question of religious liberty from a particular (Christian) perspective. This is relevant because perfect neutrality is, they rightly observe, a “mirage”. (p. 17) The gravest danger to religious liberty comes not from those who openly wish to curtail it – they at least can be identified and debated – but from those who seem to think that there is a rational and objective position in this debate, to which all reasonable people will necessarily assent. This is naïve, fanciful or sinister (depending on your view of whoever is advocating it). Concepts like ‘public reason’, ‘freedom’ and ‘equality’ “smuggle in” comprehensive and partisan worldviews, worldviews that that secular reasoning has supposedly foresworn. (p. 65) This is the way you win the debate: not by engaging in hand-to-hand legal combat as by enticing the opposing forces onto conceptual territory of your own choosing.
Mercifully, there are prominent (and often rather varied) voices which recognise that concepts like law, freedom, equality, power and democracy “cannot be undertaken in a normative vacuum”. Jurgen Habermas, whom Leigh and Adhar quote, is one such who has said that “we should not over-hastily reduce the polyphonic complexity of public voices”. (p. 67) Jonathan Sumption, recently appointed Justice of the Supreme Court, is another. In his recent lecture on ‘The Limits of Law’, Sumption pointed out that the European Convention for the Protection of Human Rights and Fundamental Freedoms, because it is a so-called “living instrument”, has had a pronounced tendency of converting political questions into legal ones:
The effect of this kind of judicial lawmaking… is to take many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transform them into questions of law to be resolved by an international judicial tribunal… In reality… the Human Rights Act involves the transfer of part of an essentially legislative power to another body. (27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20th November 2013)
Sumption’s point, indeed the main thrust of his lecture, is that such transference (whatever the motive) invariably ends up undermining parliamentary democracy. It is not that the decisions themselves are necessarily wrong (Sumption expresses sympathy for them), but rather that they are better arrived at through the messy but public and more directly accountable processes of democratic deliberation.
This is where Adhar and Leigh stand. The first two substantial chapters in their book set out the Christian and the Liberal perspectives on religious liberty. The perspectives are not, of course, antagonistic or indeed mutually exclusive, each having informed and shaped the other for many years now. Nor do they necessarily arrive at different conclusions (although there certainly are tensions there). The point is simply that they are there. The advice given by wearied mathematics teachers stands: whatever else you do, please show your workings. This is, to my mind, the greatest strength of Religious Freedom in the Liberal State. The authors advocate, and demonstrate, candid public discourse as a means of negotiating a landscape that increasingly appears to many to be more ‘mine’ than ‘field’.
The result of this discourse is a sustained defence of religious freedom. If there is a fundamental point of tensions between Liberal and Christian conceptions of freedom, it is that the former tends to be more individualistic. “Liberals intuitively tend to rank individual religious liberty above collective or associational expression of religious belief or practice”, they observe (p. 69). For Christians, by contrast, association is foundational, not only in terms of corporate practice but in its very anthropology. Relationality is not some bolt-on, nice-to-have but key to human identity and worth.
Accordingly, Leigh and Adhar defend these associational rights, not simply on the grounds of religious freedom but because such rights secure the sphere of civil society or mediating institutions, which, in the words of an important recent US Supreme Court decision, have acted “as critical buffers between the individual and the power of the State”. (p. 73) In other words, religious freedom benefits not only religion but all of us. Or, more strikingly, in the words of Canadian Minister John Baird, “societies that protect religious freedom are more likely to protect other fundamental freedoms.”
It would be wrong to give the impression that Religious Freedom in the Liberal State was in any sense a campaigning book. On the contrary, and to return to the observation made earlier, it is entirely wrong to divide analyses of this topic into the objective/ neutral survey and the partisan/ campaigning. Leigh and Adhar have a set of beliefs and commitments from which they speak and which lead them to some clear and definite conclusions regarding religious freedom. But that does not prevent Religious Freedom in the Liberal State from being learned, reasonable, clearly-thought-through, and well-grounded. Those who can read it, should, although the prohibitive price tag is likely to limit its readership to academics. It is to be hope that Leigh and Adhar produce shorter and more accessible spin-offs for a wider readership who badly need carefully drawn maps, such as these, to navigate an unfamiliar and shifting landscape.
Nick Spencer
Religious Freedom in the Liberal State by Rex Adhar and Ian Leigh is published by Oxford University Press. Image courtesy of OUP.
