SUPRARATIONALITY AS THE ULTIMATE JUSTIFICATION OF THE PROTECTION OF RELIGION

In a multifactor constitutional approach to religion, there need be no single justification for protecting religion; rather, there can be many rationales for such protection.Footnote ¹ However, we can attempt to find the ultimate justification as a good starting point for analysing other aspects of the relationship between religion and the secular legal system. The ultimate justification searches for a legal rationale to legitimise the secular legal system's protection of religion as such; all extensions (to phenomena sufficiently similar to easily recognisable examples of religion) are analogical and based on the legal principle of equality. Without justification of the protection of religion, there is no potential extension to related phenomena. Well-founded secular legal systems should be able to differentiate the boundaries of justification from the boundaries of extension; the analogical reasoning that this calls for is ubiquitous in law. In the case of religion, the extension of the same protection of religion to all types of secular beliefs and even to non-religious beliefs is justified by precisely such analogical reasoning.

In my opinion, the ultimate justification for legally protecting religion lies in the protection of suprarationality.Footnote ² Suprarationality can be understood both in a subjective and an objective sense. In a subjective sense, it refers to the capacity of each person to (a) freely overcome his or her own materiality, individually or collectively, in the search for the fundamental and most profound truths about the origin, meaning and purpose of human life and the universe; and (b) freely follow and share these truths as he or she understands them.Footnote ³ In this subjective sense, suprarationality is an experiential capacity – of experiencing conversion, regeneration and purification; developing spirituality; receiving grace; gaining assurance; developing cosmic consciousness; and so on. According to this subjective sense, suprarational understandings, beliefs and commitments come together and can be manifested in a single act (of worship, for example).

In an objective sense, suprarationality is the unseen order of everything that is beyond or above the range of a normal or merely rational human experience. The objective approach refers to it as a potential source of religious knowledge, transcendent justice, spiritual happiness and love as a result of harmony with that suprarational order through adjustment of our lives in harmony with transcendence. Since objective suprarationality can be pursued by different people in concert, its pursuit can be organised and institutionalised; however, an objective suprarational dimension has private as well as public dimensions. The political, religious and moral orders are all public by nature. We can speak of private and public religion just as well as private and public morality. Religion deals with the whole spectrum of life and action on which the common good depends, but from a suprarational perspective. Because religion has a public dimension, religious issues affect the heart of culture and society.Footnote ⁴ It is precisely this public character of religion that makes suprarationality and therefore religion something that we might call translegal, rather than merely extralegal (that is, outside and unrelated to law). Public and objective suprarationality touches the legal without being legal; suprarationality is thus a public external limit of the secular legal system.

Suprarationality cannot be explained from rationality; the higher cannot be explained by or derived from the lower. Although rationality and suprarationality are complementary, not in competition, the line between them is easily blurred.Footnote ⁵ Suprarationality does not imply the progressive obliteration of the rational but its progressive expansion. The rational is not completely separated from the suprarational, for the latter must still cohere with the former: divine reason is also reason.Footnote ⁶ What distinguishes suprarationality is that it cannot be expressed according to the requirements of scientific or secular philosophic discourse. Instead, the language of suprarationality is fully understood within the life of a religious community.

So there are two converging approaches. First, secular legal systems are not suprarational because their purposes, goals and aims are not suprarational. Second, they should not be suprarational because coercion is incompatible with suprarationality. In this sense, suprarationality constitutes an extrinsic constitutional limit of the secular legal system. Suprarationality as a constitutional limitation has at least three important legal consequences:

1. i. Suprarational acts in the strictest sense (pursuits of the suprarational) should never be validated as legal acts (that is, a secular legal system should never impose suprarational acts);

2. ii. Suprarational argumentation should not be used in legal discourse; and

3. iii. The secular legal system cannot regulate religion or the essentials of any religious community.

These three consequences are expressions of the natural incompatibility between legal coercion and suprarational freedom.

THE EXCLUSION OF SUPRARATIONAL ACTS FROM THE SECULAR LEGAL SYSTEM

For legal purposes, I will call suprarational acts those religious acts that, though legally protected, should be constitutionally excluded from secular legal systems in all circumstances (for example, an obligation to make profession of faith; to go to the synagogue, the church or the mosque; or to take a religious oath). Excluding suprarational acts from secular legal systems does not present an obstacle for their legal protection; it is their exclusion that justifies their protection. Exclusion shows that the legal system recognises its lack of competence in suprarational matters.

Following classical analyses of moral acts, we can consider an act to be suprarational when both the subject matter and the main purpose or intention of the act are strictly suprarational. The subject matter of an act is suprarational when suprarationality is the main good towards which the act is directed. Acts of faith and worship constitute two paradigmatic suprarational subject matters of pivotal importance to most religious faiths; thus, they are crucial to a legal understanding of religion in both the national and the international realms.Footnote ⁷ I understand an act of faith in the general sense as a free response of an individual to the suprarational. It involves an ascent of the intellect and will to a transcendent truth, specifically to God. It is probably the first religious experience, as it opens the door to suprarationality. I understand worship as offering praise and adoration to a supreme being, acting in reverence to other gods or transcendent beings, and participating in individual and collective religious rituals of both theistic and nontheistic religions. Worship is a consequence of faith.

Religious education, however, would not involve suprarational subject matter in this strictest sense because it is directed chiefly towards education, and only indirectly towards suprarationality. It affects suprarationality only insofar as suprarationality is a subject matter of education. Religious indoctrination, in the value-neutral sense of a process of imparting doctrine in an authoritative way (for instance, as in catechism) will be a suprarational act according to the subject matter, since the act is mainly directed to suprarationality through education, and not to education through suprarationality. A similar point applies to proselytising in the sense of the act of attempting to convert people to another religion. It is a suprarational act because the object is deliberately directed towards suprarationality; therefore, it should be allowed in the public sphere as a manifestation of religion, but excluded for political authorities. Any type of coercion or threat is completely opposed to true proselytism – it transforms proselytism into a criminal offence.Footnote ⁸ However, promoting religion in general is not necessarily a suprarational act, just as promoting marriage is not a marital act but a political one that is beneficial to marriage.

By promoting religion, a legal system is not necessarily acting suprarationally in the strictest sense. For this reason, establishing religion is not properly a suprarational act but both a religious and political act in the broadest senses. Therefore, establishment, or at least some types of non-coercive establishments, could be in accordance with a secular legal system.Footnote ⁹ A different question is whether the establishment of a religion is the best framework to protect religious freedom. In my opinion, non-establishment is the best way fully to protect religious freedom; indeed, it is the best way to protect religion. History has confirmed this statement many times.

The intention, end or main purpose (finis operis) of the action is one with the subject matter of the suprarational act.Footnote ¹⁰ In order to be a suprarational act, both the subject matter and the finis operis should be suprarational. Reading the Qur'an is an act whose objective subject matter is suprarational, but the overall act can be non-suprarational if the reading intention is historical, cultural or comparative rather than spiritual or religious. The same goes, of course, for reading any other religious text. For example, if the purpose of reading the Bible in a public school is cultural (that is, to read one of the most influential books in the history of humanity), the act would not be suprarational, as it would be if the Bible were presented as the Word of God and a source of suprarational knowledge.Footnote ¹¹

A suprarational intention or purpose of the acting person (finis operantis) cannot convert a non-suprarational act into a strictly suprarational act if the subject matter is not mainly or exclusively suprarational. Giving alms is basically a moral act of generosity and solidarity; it could have a suprarational purpose for some people but not for others. Therefore, giving alms could be considered a suprarational act for legal purposes but, because the subject matter (and the finis operis) are not exclusively suprarational, almsgiving cannot be excluded from the legal system. A similar situation occurs with marriage. For many religious people, marriage is a suprarational act – a religious covenant or even a sacrament; however, because the subject matter (and the finis operis) of marriage is not exclusively suprarational but also rational, marriage cannot be excluded from the legal realm. A secular legal system should not refrain from regulating marriage because of its suprarational character, but it should refrain from regulating suprarational aspects of marriage (such as imposing a religious ceremony as the only way to marry). An act should be beyond the legal system's regulation only if it is strictly suprarational. Furthermore, even though a suprarational intention of an agent in certain matters can make a particular act suprarational overall, it cannot make all acts of that type strictly suprarational (and therefore beyond the state's proper control).

Circumstances cannot by themselves change the quality or nature of an act's subject matter, to make it either religious or non-religious if it is the opposite by nature. Circumstances can change the main purpose or intention of an act, however, by shifting from a chiefly or even exclusive religious purpose to a chiefly non-religious purpose or vice versa. For example, the US Supreme Court upheld the engagement of chaplains to open legislative sessions with prayers on historical grounds (that is, based on circumstances).Footnote ¹² Chief Justice Burger's opinion appealed to the ‘unique history’ of the legislative chaplains in the United States since the Continental Congress in 1774.Footnote ¹³ Prayer is a religious subject and the intention or purpose of prayer at the beginning of the session was chiefly religious. But historical circumstances converted these chiefly religious purposes into a cultural purpose so that the act of praying at the beginning of the legislative session was deemed, from a legal perspective, more cultural than religious.

This is similar to what has occurred in Spain. Basing judgment on cultural and historical traditions, the Spanish Constitutional Court held that the national police, as members of a religious fraternity, could participate in a religious procession during the celebration of Holy Week.Footnote ¹⁴ In 2011, the Court also held that it was not unconstitutional for the statutes of the Bar Association in Seville to proclaim as its honorary patron the Virgin Mary, in her avocation as the Immaculate Conception.Footnote ¹⁵ Participating in a religious procession and appointing the Virgin Mary as patron of a secular institution are acts whose objective subject matter is religious. However, the main purpose of a religious act can change. For example, what is mainly non-suprarational in Spain based on certain historical circumstances could be suprarational in the United States under other circumstances.

In sum, the only suprarational acts that must be avoided in all circumstances by political authorities are those whose subject matter and main purpose are strictly suprarational, where circumstances have not changed to change their (primary) purpose. When a legal system fails to exclude suprarational acts in this strict sense, it abandons its secular character.

THE SUPRARATIONAL ARGUMENT AS AN IRRELEVANT LEGAL ARGUMENT

Suprarational arguments are those arguments whose premises (typically in the form of propositions, statements or sentences) in support of a claim are beyond the reach of reason unaided by revelation. ‘Since God redeemed humankind, human beings should love each other’ is an example of a suprarational conclusion drawn from a suprarational premise. ‘Homosexual acts should be legally banned because the Bible rejects them’ is also based on a suprarational premise. Suprarational arguments are chiefly based on premises derived from pronouncements of religious authorities and books, traditional religious practices, or mystical or revelatory experiences.Footnote ¹⁶ Suprarational arguments should not be used in the legal discourse of democratic communities because secular legal systems should always operate within the rational realm. Reason is the only language that secular legal systems can understand; therefore, suprarational arguments should receive the same treatment as suprarational acts. Suprarational arguments should be placed outside the secular legal system. This exclusion is exactly what makes a legal system secular in the first place.

This hallmark of the secular legal system does not necessarily put religion as a whole outside the domain of public reason, as Rawls suggested, nor does it expel religion from political deliberation.Footnote ¹⁷ The realm of political deliberation is larger than the realm of strictly legal deliberation. And what is placed outside the legal system is only suprarational argumentation, which is only a part of any religion. The reason is that the suprarational argument is essentially unintelligible by secular legal systems. Suprarational argument should be outside the legal realm for the further reason that it cannot properly be imposed: suprarationality requires free adherence. A coercive suprarationality is a contradiction in terms. Since legal systems are, by definition, coercive, they cannot use suprarational arguments. This is not a matter of discrimination by exclusion; it is a matter of the nature of the system and types of argumentation in question.

Secular legal systems should protect the suprarational, but they cannot deploy it. They protect it for a legal reason as well, which is itself, by definition, secular. In this sense, I do not agree with Eberle when he argued that ‘each citizen should feel free to support coercive laws on the basis of her religious convictions – even on the basis of her religious convictions alone – so long as she conscientiously regards her religious convictions as providing a sufficient basis for those laws'.Footnote ¹⁸ Behind this statement there is a category error: the use of legal coercion for suprarational reasons. Legal coercion can be used only for legal purposes and must be reduced to the realm of the legal. In order to legitimise the use of legal coercion to protect religious convictions, religious convictions must be supported by a legal rationale. There are, for instance, both religious and legal arguments for using legal coercion to avoid political corruption, but there is no legal argument for supporting some expressions of so-called blue laws in the United States (such as restricting or banning the sale of alcoholic beverages on Sundays for religious purposes).Footnote ¹⁹

But let us not mistake the part for the whole. Suprarational arguments cannot be converted into rational arguments by changing the premise, as the result would be a different argument; however, religious ideas and values, not suprarational arguments, can be used in political deliberations, and many of them can be converted into legal rationales for public policy. It is not possible to erect a barrier between culture (including religious culture) and public deliberation. Since religion operates in the public sphere and since religious communities are inescapably a part of the political community, religion cannot be ostracised.

As McConnell has shown, Americans owe much to Calvinist and Baptist preaching in support of independence; the protestant ministers were the ideological commissars of the American Revolution and the principal arguments for religious freedom and against establishment were religious in content.Footnote ²⁰ Something similar is true of the birth of the European Union, in which the Christian idea of forgiveness after the Second World War played a decisive role;Footnote ²¹ and of the Civil Rights Movement, led by Martin Luther King Jr. Religious ideas, however, require transformation in order to become legal. This transformation is possible because the suprarational presupposes the rational. It is beyond the rational, but not against the rational. Behind the American Constitution, the Human Rights Movement or the birth of the European Union, many wonderful and beautiful religious ideas, ideals and aspirations exist. But the final legal result (such as the US Constitution, the Civil Rights Act of 1964 or the Treaty of Lisbon) does not include suprarational arguments. Each is secular by nature.

In other words, the secular can be founded on both secular and religious origins. In the latter case, the secular will follow a process of transformation (appropriate secularisation). To fail to recognise this second source of genuine secularity is to forget the source of legality itself. The very idea of law was originally a religious idea before being developed into a secular idea.Footnote ²² Moreover, in modern society, there are deeper arguments based on religion for avoiding, for example, the death penalty than there are based on strict secularity.Footnote ²³ Religious arguments can and should be used in political deliberation to urge against the death penalty or torture, but the final legal ban of the death penalty or torture should be based on a secular argument. This is the only type of argument that can be recognised by a legal system.

The idea that legal systems cannot use suprarational argumentation is consistent with the ideals of democratic equality that a secular legal system ostensibly seeks to protect.Footnote ²⁴ Politicians can use religious argument in their political campaigns if they want to, but religious arguments should be excluded from legal reasoning as a matter of principle. It is also a matter of language, as the language of the secular legal system is not religious.Footnote ²⁵ Again, legal coercion and religious suprarationality are incompatible, but religion and politics are compatible.

I essentially agree with Audi's formulation of what we might call a principle of secularity, meant to moderate legal appeals to religious reasons. His formulation is expressed in positive terms (in terms of having an adequate secular reason, not in terms of not also having non-secular reasons) and has a sociopolitical character: ‘Citizens in a democracy have a prima facie obligation not to advocate or support any law or public policy that restricts human conduct unless they have, and are willing to offer, adequate secular reason for this advocacy or support.’Footnote ²⁶ My formulation, however, is legal and put in negative terms, since I see the suprarational as an extrinsic constitutional limit of the secular. Inspired by Audi's formulation, I would say that the secular legal system of democratic societies should not contain any law or public policy that restricts human conduct based exclusively on suprarational considerations.

Because it is positive, Audi's principle is more restrictive than my formulation. He incorporates a judgment about the adequacy of the secular reason. This element makes sense when dealing with the secular legal system from within, but not when dealing with the secular legal system from without. From a legal perspective, the most important feature of his principle of secular reason is that it is not exclusive; therefore, it is not anti-religious. It does not put away religious reason. It simply demands a secular rationale to supplement religious reasons, based on the idea that ‘freedom is the default position in a liberal democracy’.Footnote ²⁷

My formulation does not imply that religion should be privatised in liberal democracies, let alone that citizens have the civil obligation to vote according to secular arguments. A Muslim can defend legalising polygamy for religious reasons, but a law allowing polygamy should be based on a secular argument (for example, sexual freedom and free private partnership). From the opposite side, a Catholic can defend banning polygamy for religious reasons, but a law banning polygamy should be based on a secular argument (such as sexual equality, tradition, education of children and so forth). In a referendum on polygamy, both parties can vote based on religious premises. However, a passed bill without a rational argument supporting it would go against the constitutional nature of the secular legal system.

In sum, suprarational argumentation cannot be the exclusive justification of legal deliberation. Legal deliberation demands a secular rationale. This fact does not take away religious argumentation from political deliberation, let alone reduce it to the private realm. The demand of rationality is simply an expression of the essence of the secular legal system. Secular legal systems should be open to transcendence, but they must not be involved in suprarational issues. In order to be inside the legal system, the suprarational argument should be supported by a rational argument; otherwise, it cannot be legal.

STRUCTURAL DUALISM

Structural dualism means that no legal constitutional model of a political community can adequately protect the transcendent or suprarational dimension of human beings without creating a dualistic structure that guarantees sufficient autonomy for religion and religious communities. Such dualism is also a necessary, though not a sufficient, condition for guaranteeing equal religious freedom for all citizens and preventing unfair religious interference with the political realm. Without dualism, a secular legal system cannot be properly developed and no state can be reasonably classified as a liberal democracy. Dualism is beneficial for both religion and politics – it protects religious communities from political communities, and political communities from religious communities.Footnote ²⁸ Dualism is the most important consequence of the incompatibility between religious suprarationality and legal coercion.

There are at least four considerations that support this dualistic structure of society, all of which are deeply related to and ultimately based on freedom. The first has already been explained: religion, in the strictest sense of suprarationality, forms a constitutional limit of the legal system of a political community. (That is not true of other goods and values, such as art, knowledge and sociability.) But religion in the broadest sense does have political dimensions. It can and should be manifested in the public sphere. There is no reason for restraint. Yet it also has a constitutive, non-political dimension insofar as it involves the suprarational, which should not be a matter of state coercion. This is not a stipulation about what I mean by ‘religion’ but the formulation of an aspect of religion with important legal relevance.

We can make the same two points from the perspective of politics. It has a religious dimension, in that it embraces all types of communities, including religious. At the same time, politics has a constitutive, non-religious dimension insofar as it is not religious in the strictest sense – it is not suprarational. In the suprarational realm, politics has no place. Politics and religion are two sides of the same coin – the public sphere. At the centre of the public sphere should be the person, not the political community, because the person is at the same time both a religious and a political being – a rational being open to suprarationality. Politics and religion are not incompatible, though. What cannot mix are some aspects of religion with some aspects of politics, namely suprarationality and legal coercion.

The second consideration is that the intrinsic unity of the person (that is, the integration of the person's individual, social and transcendent dimensions), based on dignity, cannot be projected onto the community as a whole, for dignity is a status of the human person exclusively. When a political community, using (or abusing) its sovereign power, tries to make this intrinsic three-dimensionality of the human person its own, it becomes totalitarian. In some ways, the absolute nation-state, based on the idea of sole and exclusive sovereignty, is an attempt to substitute dignity for sovereignty as the state's character (appropriating for itself the centrality of the human person).Footnote ²⁹ An analogous error occurs when a religious community becomes a political community, without differentiating its religious structure from its political structure or its religious beliefs from its political action.

The third consideration is that the act of adherence to a faith or creed is, by nature, completely free and personal. Faith can be shared within a community of voluntary membership, as it is in the religious community, but not within a community of compulsory membership, as in the so-called complete political community. If every person must be a member of at least one political community to satisfy his or her basic needs and develop his or her personal capacities, but a compulsory political community cannot manage transcendence, then the existence of a dualistic structure is a democratic constitutional right that guarantees freedom of religion, for the sake of the person's full development.

At the heart of religious freedom is the idea that the purpose of a political community cannot be to make an act of faith based on some religious truth, for citizens in this case would not have the required freedom to practise or not practise religion. Thus, political and religious communities have different purposes, even though both have been established for the sake of the human person. Political communities can share religious values, which do not require acts of faith, but they cannot share concrete religious beliefs as matters of law. The communion of faith demands the fullness of freedom, without restrictions. This fullness of freedom can only be achieved in a community of voluntary membership, not in a community of compulsory membership, which would legitimise the existence of the so-called freedom of religion as a constitutive element of religious freedom.

The fourth consideration in favour of a dualistic structure is the public nature of suprarational law.Footnote ³⁰ The suprarational law of historical religions has a public nature derived from the communion of faith, insofar as suprarational law binds the religious community as a whole, not only each of its members. In some religions, such as Judaism and Islam, the public dimension of suprarational law is a presupposition of the existence of the very community – there is a community because there is suprarational law, not vice versa. Thus, the religious community is at the heart of the political community. For the religious community to avoid taking control of the political community and for suprarational law not to be confused with the law of the secular legal system, the secular legal system must recognise a religious communitarian structure that is ontologically different from the political structure and in which only transcendent law operates.Footnote ³¹

From a political point of view, an important consequence of the requirement of a dualistic structure is that the legal system of a political community does not need any type of religious legitimation for its existence, since a political community is not an extension of the religious community but a completely autonomous community. Another important consequence is that the democratisation of religious communities cannot be a demand of the political agenda of democratic governments. The political community cannot impose its constitutional model on the religious community because the two are ontologically different. Each community has its own rules, its own institutions and its own proper scope, regardless of which community was born first. Both community structures need each other, however, for the good of humanity.

Constitutional dualism warns against the existence of total community structures. In general, total community structures are those that do not make any substantive distinctions between transcendent law and positive law, or those that deny, at least implicitly, transcendent law. Theocracies, including constitutional theocracies, are likely to create total community structures, but they are strong secular liberal political communities when they do not recognise the social dimension of religion. Religious and political communities become total communities by mutual absorption or mutual exclusion. A religious community becomes total when, based on the principle of self-determination, it also becomes an independent, or at least autonomous, political community and objects to the creation of a new dualistic structure that differentiates between the religious community and the new political community. A religious community also becomes total when it tries to impose its religious rules on areas that are outside its sphere of business or uses coercive political power to impose its criteria on religious issues. A political community, in contrast, becomes total when it tries to control religious communities or fully exclude them from the public sphere. History, life's teacher, offers us many examples of total communities in both senses.

The first claim of constitutional dualism is that both communitarian structures – the political and the religious – should recognise each other since they operate in the same territory and since a greater or lesser proportion of the political community is also part of the religious community structure. Without at least an explicit act of recognition, there can be no dualistic structure, only a monistic one, which is, by definition, totalitarian.

These two communitarian structures should be ontologically autonomous, yet politically interdependent, as all members of religious communities must be members of a political community, but not vice versa. Additionally, religious communities operate inside and across the territories of a political community, so the distinction between political communities and religious communities is a matter of the different goals and aims of each community. If a political community fails to recognise the value of religion, it will never fully recognise a religious community as an intrinsic piece of the dualistic structure.

THE ELECTION OF THE DUALISTIC MODEL AS A CONSTITUTIONAL DECISION

The status that the legal system gives religious communities and the degree of interdependence of these communitarian structures determine the dualistic constitutional model of a political community. Dualistic structures can adopt a wide variety of systems according to history, culture, political experience and religious diversity.Footnote ³² The options can be classified into four basic categories:

1. i. Unilateral state primacy over religion (eg French laïcité);

2. ii. State neutrality (eg US non-establishment);

3. iii. Mutual co-operation in common purposes (eg German collaborationism); and

4. iv. State singling out and adoption of a religion as the state religion (eg England's church establishment).

There is a fifth category, the integration of the political community into the religious community as an extension of it (theocracy), but this model is incompatible with the secular legal system. Therefore, I do not address it here.

The models can be specified in so many ways that systems belonging to the same group can differ quite widely. French laïcité is different from Mexican or Turkish laïcité. German collaborationism is different from Spanish, Italian or Brazilian constitutional models. Among established churches, England's constitutional model is different from Greece's model (where the national religion is Greek Orthodoxy), Denmark (with a strong established church) or Malta (where the state religion is Catholicism). The model of the United States is in some ways unique because of its originality and the singular judicial interpretation of the First Amendment.Footnote ³³ All four constitutional frameworks can be in accordance with a constitutional dualism. There are, however, some restrictions that more directly affect the extreme models (such as laïcité, at least in the French sense) and church establishment.

Laïcité is different from neutrality.Footnote ³⁴ Neutrality might involve avoiding any official expression of religiosity in the public sphere in order to protect freedom of religion, freedom from religion and social pluralism. But laïcité, specifically French laïcité, is based on state sovereignty, whereas American neutrality, for example, is bilateral, with mutual non-interference between religion and politics. Historically, French laïcité was a constitutional political reaction against the dominance of Catholicism. American neutrality, in contrast, was a political decision about how to manage Christian religious diversity. French laïcité is a consequence of strictly applying the principle of state sovereignty to religious issues.Footnote ³⁵ American neutrality is a consequence of strictly applying the principles of justice and equality to religious issues.Footnote ³⁶

Thus, under French law, strong state interference with religion is compatible with the principle of laïcité since there is an absence of formal state recognition of institutional religious autonomy. Additionally, as Troper has pointed out,

If the state is sovereign, no subject matter can escape its power, not even religion. So if the French state abstains from regulating religion, it is because it is deciding not to exercise any sovereign power over religion; however, it could do so if it pleased, based on its sovereignty. This justifies the state having ownership of religious buildings, and the prohibition of wearing religious signs or subsidising religious schools. Laïcité defends dualism, but submits the religious community to the unique sovereignty of the political community. For that reason, a strong, unhealthy form of laïcité could violate individuals' free exercise of religion.

Having a church establishment clause can fit with the principle of dualism, but again only with some restrictions. First, the church and state should be perfectly differentiated. An established church cannot and should not be a ‘department of the state’. Church establishment should not imply an act of faith or impose one on fellow citizens or use a concrete religious argument in legal deliberation. Religious establishment should never support the recognition of a religion as a true religion, since a political community is not competent in suprarational matters. Religious establishment should imply exclusively an official recognition of the social values of a concrete religion, which is precisely what justifies a specific legal position for a concrete religious community inside a political community. In my opinion, this is the only way to justify the establishment of a religion in a democratic society. In practice, church establishment often endangers both individual freedom and equality. Even if it is merely formal, it promotes a political entanglement with religion, which may lead to a lack of impartiality in treating religion as a social phenomenon and often in treatment of individual citizens, especially secular citizens. Experiences of this abound.

The other two constitutional models of dualism – state neutrality (such as US non-establishment) and collaborationism (for example, the German model) – fit completely with the dual system. State neutrality is based on the negative principle of abstention as the best way to promote and guarantee the proper development of religious phenomena in public life. The model of collaborationism is based on the positive principle of co-operation, searching for collaboration between political and religious communities to achieve common goals. Both models have advantages and disadvantages. US neutrality promotes equal treatment of religion and protects the required autonomy of religious communities. But it risks degenerating into a strict separationist model, nearer to laïcité, which defends a secular establishment in which individual religious freedom is restricted. The advantages of the model of religious collaborationism are its openness to religion and the fact that religion is regarded as a public good with a clear space in public life. There are, however, two disadvantages: first, the model can easily fall into an excessive and undesirable entanglement between religion and politics; second, it can come to involve religious preference, and thus unequal treatment of communities and citizens. The German system of a church tax, which covers approximately 80% of the entire church budget, is probably a case of excessive entanglement between religious and political communities.

The precise scope of the protection of religion depends on the nature and framework of the constitutional model. Extensions of protection are justified by reasons of equality (which favour treating sufficiently analogous phenomena similarly), not by the precise argument that justifies the protection of religion. A secular legal system is not equipped to weigh the rational coherence of theological doctrine; that is not its business. However, the secular political community should favour religion because, without religion, there is no secularity, just as without sheep there is no shepherd.

I prefer the American model of neutrality.Footnote ³⁸ However, the political community has the exclusive power and right freely to decide the constitutional model of its relationship to the religious communitarian structure. This decision should not be shared by religious communities because it is a political decision in the strictest sense and should be based on cultural, historical and moral grounds. According to their constitutional model, political communities can allow or ban concrete religious education in public schools, and religious symbols and ceremonies in public institutions. Political communities can be more or less open to the celebration of religious holidays, as well as to the intensity of the presence of religious values in the legal system. They can defend religious equality or, on the contrary, can even promote the concrete values of a specific religion as a state religion. Political communities can consider religion one of their most important sources of values or as mere matters of individual and social freedom that require legal protection. All political communities, however, should recognise religious communities, even those that defend ideas and views against their own legal system, provided that the religious communities operate in accordance with the legal system. This variety of regulation on religious matters, according to the dualistic constitutional model adopted by the political community, protects global pluralism and personal freedom while assuring the minimum of religious freedom demanded by human dignity.

AUTONOMY AND INDEPENDENCE OF RELIGIOUS COMMUNITIES

An important legal consequence of constitutional dualism is that religious communities (that is, organised religions in the forms of churches, congregations or religious societies) should be both autonomous and independent, whatever their legal position may be in the secular legal system.Footnote ³⁹ Religious communities are autonomous in the secular sphere and independent in the strictly religious sphere (that is, in relation to religious acts in the narrowest sense).Footnote ⁴⁰ The subject matter determines the differences between the regime of autonomy and the regime of independence. This distinction between autonomy and independence allows us to establish a normative framework to define the limits of competences and capacities of religious communities in internal affairs.

Autonomy is relational and thus relative and externally limited; independence, however, is sovereign and therefore absolute. Religious communities are autonomous, in the relational meaning of the term, insofar as they operate inside the territory of a political community and are submitted to the secular legal system of the political community. If political communities are different from religious communities, and religious communities operate within the former's territories, political communities must have the power and duty to regulate some religious matters insofar as they affect constitutional essentials and the rights of other citizens. There is no religious matter, aside from religious acts, that cannot be regulated by the political community in order to achieve its own legitimate ends and purposes. Religion as a social phenomenon, which affects the people of a political community, is also a political issue, because all matters that touch the people are political by definition.

Secular legal systems can provide legal, administrative or executive autonomy to religious communities; however, a political government has something to say about religious groups as social groups that operate inside a state. Because religious communities are autonomous in the secular domain, legal systems can demand that religious groups structure themselves according to a particular legal framework in order to enjoy the recognition and potential benefits of the relevant legal status.Footnote ⁴¹ A political community may legitimately intervene in the affairs of a religious community on the basis of limitations prescribed by the legal system. The domain of this potential interference, and therefore the domain of potential autonomy, extends to all acts that are not strictly religious and that can be submitted to the ordinary law of the legal system. This domain of autonomy depends on the constitutional model of each country; thus, the proper degree of autonomy is a relative matter.

On the other hand, religious communities are independent in the spiritual domain, as legal systems cannot make religious acts or use the suprarational argument. This domain of independence is constitutive of the religious community. Without this structural independence, the right to religious freedom cannot be fully protected either individually or collectively. Based on the principle of independence, political governments should not interfere with the internal structure of governance (hierarchical vs congregational), formation and decision-making processes of faith-based institutions when they affect strictly religious matters. This is not a matter of mere autonomy; it is a matter of independence. Therefore, political communities should recognise the existence of some type of transcendent law of religious communities that is beyond the secular legal system and control of the state power. These include systems of Christian law (especially canon law), Islamic law, Jewish law and other systems of religious law. This recognition of suprarational law does not demand the formal recognition of it, though many states do recognise it; it simply demands political abstention from interference.

For instance, based on the principle of independence, no legal power in the world can oblige the Catholic Church to ordain women as priests even if a constitutional non-discrimination law is applied in the country in which Catholic religious communities (ie dioceses) operate. Since the Catholic argument for non-ordination of women is based on suprarational law, it is beyond the domain of secular legal systems' anti-discrimination laws; it constitutes a limit of the legal.Footnote ⁴² This limit should be respected even where the religious organisation lacks recognition as a legal person under the legal system in question. The reason is that this transcendent (suprarational) law is a religious matter par excellence. Certainly, the burden of proof should rest on religious organisations.

Based on such a principle of independence, the US Supreme Court, in a unanimous 2012 decision, held that the government cannot intervene in the decisions of religious schools regarding the employment of ministers.Footnote ⁴³ The ruling, written by Chief Justice John Roberts, concluded that both clauses of the First Amendment – the free exercise clause and the non-establishment clause – ‘bar the government from interfering with the decision of a religious group to fire one of its ministers’. In this case, since the position of the teacher was considered by the religious community to be a call from God, it could be considered a religious act (subject matter and intention were strictly religious); therefore, the government had no right to interfere. The decision to fire was a matter of independence. Analogously, European religious law accepts, as a general principle, that political communities must not interfere in the appointment of ministers of religion or in their status within religious communities.Footnote ⁴⁴

THE RIGHT TO RELIGION

One of the most important consequences of secularisation is that religion is recognised by secular legal systems as a right to something (akin to the right to education, the right to marriage or the right to work), and no longer simply as a constitutional liberty (such as freedom of thought, freedom of conscience or freedom of speech). As a result of secularity, secular legal systems should protect an individual and collective right to religion, not only a right to freedom of religion.Footnote ⁴⁵ Religious freedom is a necessary condition for the existence of this basic human right to religion, but it is not a sufficient condition. The point of the right is to protect not only freedom in the religious field, which is instrumental here, but all religions in both the individual and communitarian dimensions. Without recognising religion as a specific right, a secular legal system cannot fully protect the consequences of its own secularity. Without recognising a right to religion, it is easy to reduce freedom of religion into a subcategory of freedom of conscience, and to convert religion into a private matter.Footnote ⁴⁶

Recognising freedom of religion was the first step, which opened the door to the existence of secular legal systems in modernity. Recognising a right to religion is a new step for the consolidation of the secular legal systems in the age of secularisation. This recognition allows for the suprarational argument and suprarational acts to be placed completely beyond legal discourse and coercion, while secular legal systems continue protecting religion. The right to religion prevents the government from meddling in religious matters. It also prevents governments from instrumentalising religion, by recognising the existence of autonomous religious communities.

The right to religion includes the right to hold and change religions and beliefs, which is an absolute right, as well as the right to practise or manifest religion and belief, which is a relative or qualified right. The right to change religions includes apostasy, just as the right to practise religion includes the right to spread the faith, as well as the negative right not to declare one's religious belief. The practice of religion implies the prohibition of any type of direct or indirect discrimination (with the necessary exception of defending the religious identity of an organisation), incitement to discriminate, religious harassment and victimisation. In American terminology, the right to religion also includes the traditional articulations of the American Founding Fathers, such as freedom of exercise or practice, religious equality before the law, freedom from religious discrimination and freedom from religion or from coercion in religious matters.Footnote ⁴⁷ It does not, however, include freedom of conscience.

Freedom of conscience, though closely related, should remain distinct from the right to religion in secular legal systems, so that all moral decisions of conscience may be protected, whether or not they are based on a religious or non-religious moral rationale.Footnote ⁴⁸ In other words, the secularisation of conscience imposed by the secular legal system demands the separation between freedom of conscience and the right to religion, but does not reduce religion to a matter of freedom of conscience. Without freedom of conscience, the right to religion cannot exist, but the right to religion should be distinguished from the right to conscience, as the right to free speech and expression should be separated from the right to freedom of thought.

A legal system usually recognises a new right when a public good cannot be protected directly by the ordinary political process of legislation because it demands a legitimacy and normative autonomy higher than the legitimacy that can be provided by ordinary legislation. The degree of legitimacy and normative autonomy demanded by religion in secular legal systems of the twenty-first century is stronger than the degree of legitimacy and normative autonomy needed in early secular legal systems, in which the dualistic structure made up by religious and political communities did not belong to their constitutional essentials and religiosity was taken for granted. In other words, to regulate the lives of common believer and non-believer citizens legitimately by means of positive law in a secular fashion, and to separate church and state legally speaking, a secular legal system should protect religion as a right.

Unlike freedom of religion, the right to religion can be understood as a three-point relationship. The first element is the beneficiary of the right (every person and religious community); the second is the addressee of the right (the political community and each of its members); and the third element is the content or subject matter of the right (religion). The content of a right to something is always an act of an addressee, in our case the political community and each of its members (for example, to provide the required permission to build a church or to open a religious school in the city).Footnote ⁴⁹ The right to religion often embraces the structure of a right to non-interference on the part of the addressee when there is a general prohibition against the act in question (for example, no interference with the practice of male circumcision by a Jewish family when there is a general prohibition on practising circumcision outside hospitals; or no interference with peyote use as a Native American religious ritual when there is a general prohibition on the use of hallucinogenic drugs). This right to religion is not absolute and should be limited by public order, public morals and other rights. The limits of the right to religion depend on the constitutional model adopted by different secular legal systems.

As a constitutional freedom, the old framework of freedom of religion required an absence of command or prohibition, but not necessarily an act by the addressee. (A similar structure is found in freedom of conscience, where no addressee of the right must act in order to satisfy the right of the right-holder.) By converting freedom of religion into a right to religion, this right can prevail over general prohibitions of certain forms of conduct, opening the door to the religious exception as a generally applicable exception to laws, to protect religion. The most relevant distinction between the right to religion and the right to freedom of religion is that the right to religion incorporates the religious exception as a constitutive element. The religious exception is best understood in the context of a right to religion. It is an affirmative legal defence that protects a citizen's right to religion against unjustified interference by political authorities or other citizens in religious issues, even when the interfering law is religiously neutral. If a citizen or a religious community is able to prove that the subject matter of a legal act is subjectively or objectively religious in the strictest sense, he or she can benefit from religious exception against political authorities or other citizens.

What I have tried to justify here is the appropriateness and even necessity of the religious exception in general in order to protect the right to religion, but not of any particular religious exception in any particular country. The limits between restraint and religious exception should be established according to the constitutional model of the community in question. However, every constitutional model should take into consideration that the existence of the religious exception has intrinsic legal justification, so that the bare neutrality of a law duly passed by the legislative branch is not sufficient justification for denying a religious exception outright. On the contrary, in most cases, a neutral legislation is the trigger for a religious exception. Neutral law justifies the legitimisation of the statute but it does not weaken the legitimacy of the religious exception. The exception loses its legitimacy when there are reasons of public order or public morality for limiting it.