Religious rights, the limits of religious freedom, and how to balance freedom of religion with other rights are all features of heated global debates. In Europe, the issue of religious freedom has reemerged as one of the most debated issues, both nationally and regionally. That said, the limits of religious freedom and its balancing with other rights are often viewed as matters closely connected to culture, tradition, and history. From a European point of view, this is perhaps most visible in the “margin of appreciation” awarded to the contracting states under the European Convention on Human Rights. The lack of consensus between the states makes the national decision maker more suitable than a regional human rights court to draw the lines securing religion and its place in society. Similarly, although religious freedom is enshrined in both article 18 of the United Nations Declaration on Human Rights and article 18 of the International Convention on Civil and Political Rights, as well as the numerous legal documents emanating from them, international law has no agreed-upon definition of religion.
Contrasting this regional view, wherein religion is viewed as a matter entrenched with culture and as immanent in tradition and national identity, in her book professor S. I. Strong puts forward a universal theory of religious liberty, one that transcends individual nations and regional heritage.
Strong's new theoretical approach to religious liberty is intended to transform and transcend the current discourse on religious rights. Her claim is universal, including both national and international jurisdictions. The current discourse centers on three aspects of religious freedom: an absolute freedom of religious belief, a relative freedom of religious practice, and a freedom from discrimination based on religion and belief (36).
In the first phase of her argument, Strong adapts the work of John Rawls to develop what she calls, as the title of chapter 3, the “Religiously Oriented Original Position.” As she does this, she posits three assumptions. The first is that her Rawlsian model treats religious practice and religious belief as equally important (95–104). This is an important modification as it attempts to eliminate the belief-practice distinction that has created so much trouble in the sphere of political liberalism and religious rights.
The second assumption is the absolute precedence of religious belief and practice. In a controversial stance, Strong advocates that religious liberty, including both religious belief and practice, must trump all other liberties. In doing so, she aims to avoid the problems inherent in the balancing of multiple rights (104–07).
The third assumption relates to the “veil of ignorance” posited in the Rawlsian theoretical models. The “veil of ignorance” relates to the Rawlsian original position, wherein representatives ought to work behind a veil of ignorance, not knowing their political status, positions in society, religious beliefs, or other markers of social status. The aim of the Rawlsian model is to identify an “overlapping consensus” and create a society that treats everyone equally (John Rawls, A Theory of Justice, 1971). Strong puts forward a variation on the veil of ignorance, that allows one's religious practices and beliefs—but no other individual preferences of the “good”—to be known, thus providing a “partial veil of ignorance” (107–12).
In the next phase, Strong reveals the true novelty of her “religiously oriented original position” in the construction of a comprehensive and unique analytical framework that puts these principles into practice. Strong operates on the assumption of dichotomy between self-regarding practices and other-regarding practices. Self-regarding practices are practices that involve the religious person only, whereas other-regarding practices involve others and society at large. From these two categories, she builds a constitutional framework that is meant to cover all possible religious acts (120).
The framework consists of four main categories of practices: “purely self-regarding practices,” “complex self-regarding practices,” “false other regarding practices,” and, lastly, “true other regarding practices.” Through this new framework, Strong then analyzes recurring issues involving religious freedom in international and national contexts.
“Purely self-regarding practices” are such religious acts with no effect on others or society. Strong argues that in such practices, religious persons could be allowed both to abstain from practices otherwise required, such as wearing protecting headgear, and to undertake activities that are otherwise prohibited, such as wearing distinctive clothing.
“Complex self-regarding practices” are practices undertaken by a religious actor that have consequences for others or for society. Again, Strong includes abstaining from required activities, such as exemption from military duty during wartime, and performance of certain activities that, in turn, affect others, such as taking time off to attend a religious service.
“False other regarding practices” are considered “false” because they do not in fact involve a religious practice. Rather, Strong includes a religious person's attempt to require a certain behavior of a nonreligious person. Again, religious persons could both require and forbid others to act in accordance with their religious faith, such as urging someone not to use contraception or force state schoolchildren to listen to a nondenominational prayer. Here, Strong differentiates between religious practices and belief, stating that it is only the religious person's beliefs about what a nonreligious person should or should not do that are at stake (246).
Lastly, “true other regarding practices” are when religious persons require that non-religious persons act according to the convictions of the religious person. Thus, in contrast to “false other regarding practices,” “true other regarding practices” involve a religious person's attempt to impose a religious practice, rather than a belief. For example, a religious person could forbid homosexuals from engaging in sexual activity or force state schoolchildren to recite the Lord's Prayer. Such religious practices cannot prevail over the religious or nonreligious practices of others.
Based on these eight scenarios, Strong examines case law (primarily from Ireland, the United Kingdom, and the United States) and discusses how these situations would be evaluated from her “religiously oriented original position.” Sometimes the outcome is identical or similar to the way a case was handled within that jurisdiction, but quite often the result is surprisingly different.
The result of Strong's endeavor is thought provoking, engaging, and immensely interesting. It is a good read for anyone interested in questions of religious freedom and how to organize a religiously pluralist society—not the least in Europe, where the secular paradigm is so strong. However, I am left with a feeling of bewilderment after having read her book. I find myself pondering two issues. The first one relates to the dichotomy between religious and nonreligious, which is so crucial to the theoretical framework built by Strong. The second relates to an idea of individuality, which is hard to transfer between various cultures, traditions, and religions, but is at the core of the “religiously oriented original position.”
I start with the first issue. In a world where multiple identities have become norm rather than exception, the question that arises is whether it is plausible to draw a stark line between religion and nonreligion. Strong defines religion as “ultimate concern” and “religious people” as, following Anthony Bradney's description, “obdurate believers,” people who do not see their religion as private or peripheral (33). Although Strong's quest for the transformation of religious liberty is a theoretical one, she does give domestic and international courts advice on how to solve certain critical issues. The question is then whether the dichotomy between religious and nonreligious will ease the burden from an empirical standpoint.
The second issue I take with Strong's framework is related to individualism. Individualism is the second underlying assumption in Strong's theoretical framework, which is not surprising given that she is working in the liberal positivist universe of Rawls. Nevertheless, when claiming universality, individualism as Strong applies it leads to shocking effects. One example is the ease with which Strong identifies the practice of sati (a widow's self-immolation on her husband's funeral pyre) as a purely self-regarding practice when performed by willing women. Although Strong is correct in pointing out that self-inflicted harm comes in many forms and intensities, human beings are not islands, devoid of contacts with others. Everything we do will eventually have consequences for others. A less onerous example than sati, although still with potentially fatal consequences, is a man who drives a motorcycle without a helmet, instead wearing his turban for religious reasons. Strong sees this as a purely self-regarding practice, just as sati. Where then should the line be drawn between acts that affect others and those that do not? What if the motorcycle driver lives in a country where his hospital care, if he is in an accident, is paid by fellow taxpayers? Is it still to be considered a purely self-regarding practice? Likewise, with the classification of sati as a purely self-regarding practice, the idea of individualism neglects the intricate complexity of human relations, which feminist scholars have shown affect human actions. Again, no man—or woman—is an island.
All in all, I applaud Strong on a book that has remained on my mind, provoked me extensively, and which I cannot let go. She has written a book well worth a read, which aims to accomplish something few scholars take the time to do: not only question the way in which the paradigm of freedom of religion is structured, but actually restructure it to fit a cross-border, cross-discipline, and cross-cultural audience. The renaissance of universality provides a challenge to the era of relativism, and Strong has done a fine job in writing such a piece of work.
