Constitutionalism in Rough Seas: Balancing Religious Accommodation and Human Rights in, through, and despite, the Law

The place of religion in public life is intrinsically related to the fundamental question of human rights protections, particularly for women and vulnerable minorities, which constitution drafters, legislators, and judges must address. Scholarship is paying increasing attention to the central role played by constitutional law and adjudication in determining the relationship between (aspirationally neutral) state law on the one hand and demands by religious groups to increase the role of religion in public life on the other.1 As constitution-drafting and judicial review have become major tools for political reform, scholars of comparative law and comparative politics have searched for constitutional solutions that can reconcile the protection of human rights with the demands for religious accommodation in contemporary democratic and democratizing states.2 A close look at the way religion–state relations have been designed and reformed over the years in societies experiencing religious conflict reveals, however, that formal constitutional law alone (constitutional documents and jurisprudence) tells only part of the story. Similar legal provisions used in different political settings may yield different policy outcomes in areas such as family law, religious education, and conversion. In many cases, formal law may be understood, applied, perceived, and received in different ways depending on additional factors such as the cultural and social context, and the vision of key actors in the political and legal system.

The goal of this special issue is to highlight these cultural, social, and political contexts and how they have affected the balance struck between rights protection and religious accommodation. In particular, the contributions accentuate the influence of domestic actors—key elites, courts, political parties, and civil society groups—in shaping the boundaries between the domains of religion and the state in constitutions, laws, and their interpretations, and the consequences of this boundary-drawing for religious polarization and rapprochement. The five articles featured here demonstrate that conflicts about religious practices and religious identity, which are often highly affected by legal instruments, are often not only about religion but also other political, ideational, or ideological concerns that divide the polity. Through an empirical investigation of the interplay between formal law, social structure, and the actions and preferences of political and legal actors, the articles aim to advance our understanding of the complex sociopolitical–legal dynamics involved in attempts to harmonize the demands for a prominent place of religion in public life with human rights.

While the literature on constitutionalism and religion has in the past focused by and large on North American and West European experiences, recent scholarship has expanded the comparative scope, especially in light of ongoing constitutional projects in emerging democracies in Asia, Africa, and the Middle East.3 Some of the comparative analyses of constitutional law and religion have challenged conventional theories of liberal–democratic constitutionalism and religious freedom.4 There are, however, fewer attempts to advance theory-building and (re)construct more comprehensive theories that go beyond descriptions of a given country’s religion–state arrangements.5 Taken together, the five articles included in this issue aim at contributing to this recent endeavor. They do so by investigating how the constitution and subsequent laws construct the relationship between religious autonomy and human rights. More specifically, the articles focus on the social and political contestations surrounding the creation of laws that attempt to balance different sets of rights, during the constitution-writing stage and its subsequent interpretation by lawyers, politicians, judges, and social movements. All authors are united by their conviction that law reflects the outcomes of a process that is fundamentally political in nature.6