1. Introduction
The late twentieth century and the early years of the twenty-first have seen a rapid increase in the involvement and power of religion in law and politics throughout the world.Footnote 1 Perhaps the most significant and dramatic form that this resurgence has taken is the growing global power of religious nationalism.Footnote 2 In this article, I will argue that this new form of religious politics requires us to re-examine the way in which we constitutionally protect and regulate religion. Without engaging critically with religious nationalism, we will be left blind as to how it is uniquely challenging to the liberal state in ways that are both morally and legally relevant. In this article, I will focus on the quintessential constitutional institution that deals with religion: religious freedom. In order to account for religious nationalism in the context of religious freedom, this article will engage in two related theoretical projects: first, by examining two case-studies—India and Israel—I will develop an ideal type of relationship of religious nationalism to the liberal state, which I will name intimate rivalry; second, I will exemplify the normative importance of intimate rivalry by discussing it in the context of some of the major political justifications for religious freedom.
The main goal of this article is to provide a persuasive and coherent account of the challenge that religious-nationalist ideology poses for our current justifications of religious freedom. Specifically, the article seeks to establish that the unique relationship of religious-nationalist groups with the liberal state makes strong constitutional protections of religious freedom less justified in their case. This article offers three central contributions. First, although religious nationalism has been given significant scholarly attention in the social sciences, the same is not true in the fields of constitutional and political theory. This article starts filling this gap by examining the theoretical relationship between religious nationalism and religious liberty. Second, the article offers the concept of intimate rivalry as a useful tool in both the normative and descriptive debates that surround religious nationalism. Finally, by suggesting that religious nationalism potentially warrants different constitutional treatment than other religious phenomena, this article opens the door to tailoring jurisprudence to address subcategories of religion.
This article first lays out its theoretical framework, starting with the fact that modern states are constantly engaged in the promulgation of a common national identity within their borders. The ideology fuelling this nation-building effort is state nationalism. Using this as a background, this article turns to developing an account of what constitutes a religious-nationalist ideology. It defines a religious-nationalist ideology as one in which the foundational legitimacy of the state is derived not from the popular sovereign, but from the Divine. Religious nationalism defines membership in the nation according to religious affiliation. Finally, they believe that the nation-state has a crucial role to play in the divine plan.
Second, this article argues that religious nationalism in states like India and Israel has the unique status of an intimate rival. They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. This means that, unlike outright rivals such as communist parties or competing national groups, religious nationalism is able to co-exist with secular state nationalism while vying for political and cultural power. Intimate rivalry creates an uneven democratic playing field, in which only religious nationalism is able to challenge the state without being sanctioned.
Third, I will argue that the status of intimate rivalry should, depending on which justification of religious freedom we adhere to, change the way in which we morally and legally understand religious nationalism. First, because religious nationalism is intimate—that is, acceptable and mainstream—it should be approached as a part of the culture of the majority. This implies that we should be less concerned about infringements of religious freedom in the case of the adherents and organizations of religious nationalism. Second, the rivalry of religious nationalism is in itself a good reason for the nation-state not to accommodate it. This is because, unlike separatist national minority groups, which seek to isolate themselves from the state, religious-nationalist ideology is concerned with the identity and authority of the state as a whole. To meaningfully accommodate religious nationalism would require transforming the state beyond recognition.
This article proceeds as follows: Section 2 first provides background definitions, distinguishes between religious and secular nationalism, and concisely lays out the conceptual structure of intimate rivalry. Section 3 develops the argument that Israeli and Indian religious nationalism has a unique relationship with the state—one of intimate rivalry—and explores the different shape that this takes in Israel and India. Consequently, Section 4 develops the argument that religious freedom should apply in a weaker way to religious nationalism.
2. Theoretical framework
2.1 Nation-states and nationalism
The nation-state is, first and foremost, a type of political organization whose monopoly over the use of violence and other repressive forms of force becomes legitimate through the political ideology of nationalism. The nation-state is legitimate because, within its borders, “the people” are sovereign. Perfect symmetry between politically controlled territory and a perfectly homogeneous nation is impossible. As a result, the modern nation-state is always a nation-building state—that is, it is continuously in the midst of a project of trying to “unite the people subjected to its rule by means of homogenization, creating a common culture, symbols, values, reviving traditions and myths of origin, and sometimes inventing them.”Footnote 3 This nation-building and maintaining project taken on by the state is commonly related to a pre-political community that dominates the state. In other words, the nation-state utilizes a pre-existing narrative to create and impose a unified political identity within its territorial borders. In an ironic twist, the nation-state, whose legitimacy relies on its appearing to represent the will of “the people,” is also constantly attempting to produce and shape “the people.”
The national identity promoted by the nation-state is usually not exclusive. Instead, it seeks to establish itself as the primary form of identity among the citizen body. Only in totalitarian societies will the national narrative be one that seeks to completely replace all secondary identities, such as religious, ethnic, and local. In such a regime, these identities will be seen as sources of resistance and will be suppressed as much as possible. However, in most nation-states, the national ideology attempts to establish the national identity as the primary identity, not an exclusive one. A good citizen is one who is first and foremost a member of the national community, and only then a member of an ethnicity, a religion, a class, or some other group. As Greenfeld puts it:
In the modern world, national identity represents what may be called the “fundamental identity,” the one that is believed to define the very essence of the individual, which the other identities may modify but slightly, and to which they are consequently considered secondary.Footnote 4
The effects that this dissemination of a primary identity has on “secondary identities” lies at the heart of the political dilemma of the nation-state.
A successful nation-building project establishes not only a dominant political ideology, but also a community of faith. Anthony Smith, for example, asserts that nationalism is a system of faith as “binding, ritually repetitive, and collectively enthusing” as any other. It also involves a “system of beliefs and practices that distinguishes the sacred from the profane and unites its adherents in a single moral community of the faithful.”Footnote 5 As Mark Juergensmeyer explains, both religionFootnote 6 and nationalism “are expressions of faith, both involve an identity with a loyalty to a large community, and both insist on the ultimate moral legitimacy of the authority invested in the leadership of the community.”Footnote 7 The object of faith in nationalism is not the concrete citizens of the present, but the people themselves as a nation: a unified intergenerational community with a single will. One way of looking at the relationship between these two discrete understandings is as “the people’s two bodies.”Footnote 8 Alongside the concrete people who are actually participating in democratic politics, the doctrine of popular sovereignty relies on an idea of a mythical unity of “the people” who have the final say in the legitimacy of the state. Under this conceptualization, it is the trans-temporal unity that is “the people,” not just the current, concrete generation. It is this latter, mysterious, conception of the constituent sovereignty of the people as the trans-temporal unity that “is now accepted in all [liberal democratic] constitutional systems … [i]t may even appear obvious,”Footnote 9 so much so that “[t]he people as a single subject are the source of ultimate meanings in and for the Western state.”Footnote 10 In this sense, the sovereignty of the people—that is, nationalism—is the foundational answer for the question of state power in the eyes of the citizen.
Many scholars call the type of faith promoted by nation-building projects “civil religion.” Émile Durkheim was perhaps the original thinker who saw nations as “secular” objects of worship. In his thought, these new modern institutions came to fulfil the social-cohesion functions of the defunct traditional religions. These forms of modern sacrality appeared, for Durkheim, during the French Revolution, at “that time … things purely laical in nature were transformed … into sacred things: the Fatherland, Liberty, and Reason … all at once we have seen society and its ideas directly converted, with no transformation whatsoever, into objects of true veneration.”Footnote 11 In the words of Robert Bellah:
[Durkheim] believed that traditional religion was on its way out, essentially because it conflicts with science. But the concept of the sacred would remain: without this basis of moral respect society itself is impossible. But what would be the referent to which sacred symbols refer? Durkheim replied “society,” and as the most comprehensive functioning society the “nation.”Footnote 12
Other theorists of civil religion also relate it closely to nationalism. Phillip E. Hammond, for example, defines civil religion as a “set of beliefs and ritual, related to the past, present and/or future of a people (‘nation’) which are understood in some transcendental fashion.”Footnote 13 Similarly, Robert Wuthnow defines it simply as “the use of God language with reference to the nation.”Footnote 14 In what is undoubtedly the best-known work on the idea of civil religion, Bellah defines it as a “collection of beliefs, symbols, and rituals that sanctified the national community and conferred a transcendental purpose to the political process.”Footnote 15
Durkheim’s idea that nationalism is a type of “religion” also permeates the work of some of its chief theorists. Smith, quoting Durkheim, argues:
[N]ationalism itself … becomes a novel kind of anthropocentric, intra-historical, and political “religion,” … [a] functional equivalent of the old, trans-historical religions, but one that like them fulfills many of the same collective functions …. As Durkheim remarked of French nationalism during the Revolution: “A religion tended to become established which had its dogmas, symbols, altars and feasts.”Footnote 16
Ernest Gellner, also mentioning Durkheim, states that “the religious symbols through which, if Durkheim is to be believed, it was worshiped, cease to be serviceable. So let culture be worshiped directly in its own name. That is nationalism.”Footnote 17
We find, therefore, that the modern nation-state—regardless of whether it is liberal or not or whether its national project tends towards the civic or ethnic ends of the spectrum—is continuously engaged in the project of nation-building and maintaining. It does so because it is state nationalism that provides legitimacy to its monopoly over violence and also to its current borders and political form. This nation-building effort is an attempt to create an imagined, unified community out of the diverse citizen body. It assertively promotes this national identity through the creation of symbols and rituals, and the communal worship of the nation itself. It does so through the formal means of education and state communication, and informal ones such as popular culture and media. National identity is meant to be primary; its recipients are expected to be citizens first.
The pressure for homogenized national unity is one of the significant challenges facing all communities existing within nation-states. According to Calhoun, under the logic of state nationalism:
[Only] national interests could be legitimate or authoritative in the public realm: more specific identities—e.g., those of women, or workers, or members of minority religions—could at best be accepted as matters of private preference with no public standing. Too often the pressure for national unity became a pressure for conformity even in private life.Footnote 18
Yonatan Brafman aptly describes the effect of this dynamic over non-national communities:
Individuals must understand themselves primarily as citizens of the state and secondarily as members of other social formations. These other social formations, whether now understood as cultural or religious, must fit within the framework of the state. This is expressed through the assertion that state law is supreme and thus that the normative orderings of other social formations are subordinate to it; they must now be understood as “mere” ethics, traditions, or rituals.Footnote 19
States are always engaged in the production of national culture, in the marking of the beliefs of this culture as hegemonic while marginalizing those of non-ruling communities.Footnote 20 This marginalization encourages the minority group to adapt and react—that is, they must now reconfigure their beliefs and practice to fit within the normative ordering of state nationalism.
2.2 Secular and religious nationalism
This account of the nation-state and of state nationalism does not address the nature and content of the narratives through which the connections among nation, territory, and culture are established and justified. The open-ended nature of nationalism requires an additional ideological element. What is it that connects a particular group to a territory? What is the authority that justifies and legitimates a nation-state? Both the secular and religious varieties of nationalism provide distinct forms of answers to these questions.
In both of our case-study states today, secular nationalism and religious nationalism are the two main narrative variants through which territory, state, and culture are connected. Secular nationalism justifies government acts and policies based on the interests, values, and civic political institutions of “the people.” The Indian people are called to sacrifice in Kashmir purportedly in order to protect the people of India from terrorism. The people here can be imagined in a variety of ways. The most classical division here is between civic and ethnic nationalism:
Civic, or liberal, nationalism locates the nation as a group of citizens, each of whom bears, and has a history of exercising, the same legal rights vis-à-vis the state. Ethno-nationalism, in contrast, locates the nation’s identity in a group that imagines itself to possess cultural homogeneity and a common descent.Footnote 21
According to religious nationalism, the ultimate provider of meaning is not the people, but the Divine. The popular sovereign is meaningful only inasmuch as it has a crucial role in the divine plan. The story of the Jewish people is not merely one of national liberation from oppressors and subsequent self-rule, but another step in the fulfilment of the divine plan on Earth. This logic usually takes the following form: religious nationalists hold that religion is the distinguishing and defining characteristic of the nation and the state.Footnote 22 They believe that the fundamental authority of state power is “derived from divine sources, not from the historical decisions of a particular people.”Footnote 23 Finally, they believe that the nation-state has a crucial role in the divine plan or process. For them, nationalist politics are a divine command.Footnote 24
Not all forms of political religion constitute religious nationalism. This category includes only religious movements that do not see the state merely as a political instrument, but interpret the state as a crucial part of their religion. For this article, the distinction between nationalist and non-nationalist religion is the way in which they intersect with secular state nationalism. In many countries, including India and Israel, which are the focus of this article, secular state nationalism and religious nationalism create an effect of overlapping legitimation—that is, they operate concurrently in society to explicate and justify state authority. State sovereignty is supported by two different normative pillars grounded in two different conceptual systems.
2.3 Intimate rivalry
The main conceptual argument offered by this article is that, in states that fulfil the conditions of overlapping legitimation, religious nationalism enjoys a relationship of intimate rivalry. Unlike most non-ruling communities—and certainly groups holding to competing national ideologies—within the state, it is relatively free from the unifying pressures of nation-building and nation-maintaining efforts conducted by the state. Let me now lay out the general framework of intimate rivalry. The two case-studies presented in Section 3 will fill in and nuance this conceptual account.
Modern states actively promote state nationalism. In many countries, especially those that fall somewhere within the spectrum of liberal constitutionalism, the national identity promoted is broadly secular and civic. However, since state nationalism almost necessarily utilizes forms of pre-existing identities and narratives, it often relies in various ways on religious sources and narratives. In the context of such a society, the dynamic of overlapping legitimation, in which two competing national master narrativesFootnote 25 are seen as legitimate and unproblematic forms of justifying state power and goals, can develop.
In modern nation-states in which there is overlapping legitimacy, religious nationalism is an attractive, and potentially effective, competing “master narrative.” Both master narratives are in a relationship of intimate rivalry. They are intimate since they are seen as full and non-problematic members of the national community. More than this, they are often successful in promoting their ideology as the true and authentic representation of the nation-state. They are rivals because they promote a political ideology that is as alien to the common political identity promoted by the state as any other group. Their intimacy cancels out their rivalry, and they are able to navigate politics and access state power without any of the resistance experienced by competing national groups, minorities, and other radical political ideologies.
Let us now turn to two case-studies of contemporary religious-nationalist movements: religious Zionism in Israel and Hindu nationalism in India.
3. Religious nationalism in India and Israel
This section will begin with a concise introduction of the central religious-nationalist ideologies in Israel (religious Zionism) and India (Hindu nationalism). Subsequently, I will argue that, in both India and Israel, religious nationalism enjoys the status of intimate rivalry and explore the varying shapes that this takes in these very different constitutional and political environments.
3.1 Religious Zionism
Religious Zionism is a good proxy for religious-nationalist beliefs in Israeli society. Although secular Zionism has always utilized the Hebrew Bible as one basis for its legitimacy, it has been used primarily as a historical story focused on the Jewish people. For example, in Israel’s declaration of independence, religion was reduced to a cultural achievement of the Jewish people, namely that it “created cultural values of national and universal significance and gave to the world the eternal Book of Books.”Footnote 26 In contrast, religious Zionism generally sees the biblical narrative as focused on the relationship between the Jewish people to the Divine and the return to the land of Israel as a part of the divine plan, as was established in the Bible (and other subsequent Jewish texts).
Secular Zionism is focused on the idea of offering “a full model of normal existence” for the Jewish people through a campaign for national sovereignty. In contrast, religious Zionism believes that “realizing the ideal of sovereign political existence will also lead to the realization of the religious ideal, since they viewed nationalism and religion to be inextricably bound.”Footnote 27 The national redemption of the Jewish people will lead to a global one. The school of thought of Rabbi Kook, considered by many to be the central ideological father of religious Zionism, proclaims that “the people of Israel are the yardstick of the entire world—if they rise, the world rises with them, and when they fall, the whole world falls with them.” Moreover, thus, “the entire world awaits the light of Israel.”Footnote 28 This type of thinking also applies to the authority of the state. Rabbi Kook’s son, Rabbi Tzvi Yehuda Kook, stated:
[T]he true redemption, which is revealed in the completion of the dwelling in Israel and the revival of the people of Israel in it … appears at its peak of true growth in inheriting the land … and having our government rule upon it, and having our public essence attach to the lands true sanctity.Footnote 29
Although his mystical language requires unpacking, what is important for the purpose of this article is to see how the Jewish state and its government are seen as essential steps in the way to divine redemption. The Jewish people are actors in this type of story, and they are acting out a plan not made by them. This theme does not always take the shape of the messianic vision of Tzvi Yehuda Kook, but can take more modest theological positions. For example, Rabbi Shlomo Goren, who was the Chief Rabbi of both the Israel Defense Forces (IDF) and the State of Israel, describes his understanding of the religious meaning of the state:
There is an authority and a possibility according to the Torah and the prophecy to establish an independent nation in the Land of Israel in the time between the Second Temple and the Messianic time. This state does not have a necessary, direct, relation to the fulfillment to the messianic vision, but every such state has the potential to eventually, by progressing and planning perfectly according to the Torah, be the first crucial step toward the fulfillment to the messianic vision of the prophets of Israel. This is dependent on the behavior of the state and its life style, and in its successes in determining the religious and national tasks.Footnote 30
Dov Schwartz, one of the central scholars of religious Zionist thought, summarizes the foundations of religious Zionist ideologies:
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1. The Zionist awakening is a stage in the final redemption process of the Jewish people;
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2. The Zionist awakening means a new era for the entire world;
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3. The secularization of the Jewish people is temporary, and actually the husk of a sensitive and stormy religious core. In the course of realizing the Zionist ideal, the religious fulcrum of the Jewish people will be exposed, and secularization will collapse and disappear.Footnote 31
These ideological tenants allow religious Zionism to imbue the State of Israel and secular Israelis with sacred meaning. They are but dialectic steps in the way to redemption.
3.2 Hindu nationalism
Let us now turn to Hindu nationalism. Although Judaism is a very diverse tradition, it still centres on a particular canon and a defined divine, whether strictly singular or made out of different divine elements. The same is not true for Hinduism, which may be seen as a religious tradition without a clear centre, possessing a large variety of religious texts, deities, and spiritual heroes. It has no “book” “which can truly be said to serve as a common reference point.”Footnote 32 Indeed, some choose to say that it is difficult to recognize any common thread among all traditions that proclaim themselves Hindu, while others have gone as far as calling Hinduism a “conglomeration of sects.”Footnote 33 This diversity makes the project of Hindu nationalism more difficult in a way. All nationalist projects attempt to develop unity from diversity. The historical narratives of Judaism, with its redemptive goals, lend themselves easily towards a unified national past and future calling. In contrast to Judaism, in which time has a beginning and an end, in Hinduism, it is seen as cyclical—the world has many deaths and births. It follows that the redemptive element of Jewish religious nationalism cannot be found easily in Hindu nationalism. However, this does not mean that Hindu nationalism does not share essential characteristics with other religious nationalisms. It just means that these attributes are a result of intense “ideology-building, and despite the original characteristics … clubbed under the rubric of Hinduism.”Footnote 34
First, Hinduism, according to Hindu nationalism, “is not only the religion of India’s Majority community but also what gives India its distinctive national identity.”Footnote 35 The essential attribute of India is Hindu religion, as construed by Hindu nationalists. The main ideology of Hindu Nationalism is Hindutva (Hinduness), which “seeks to establish the political, cultural and religious supremacy of Hinduism.”Footnote 36 This sense of Hindutva is a unity of territory, genealogy, and religion, as the ideological father of Hindu nationalism, Vinayak Savarkar, explains: “A Hindu means a person who regards this land … from the Indus to the Seas as his fatherland as well as his Holyland.”Footnote 37 This is a category that encompasses indigenous Indian religions: Jainism, Sikhism, Buddhism, and Hinduism, but rejects religions whose “Holyland” is not India: Christianity and especially Islam.Footnote 38 Often we find Hindu nationalists arguing that they are not a religious movement, but rather a cultural Hindu movement (hence calling it Hindutva and not Hinduism). There are excellent reasons to reject this assertion, especially since “it is in fact the common religion of Hinduism from which the entire definition of the Hindu Nation is derived. The appeal for a Hindu nation is thus very much an appeal to religion.”Footnote 39 This can be easily exemplified by turning to another famous Hindu-nationalist leader, Golwalkar, who, in a comment on the relation between culture and religion, stated:
Where religion forms the very breath of a people, where it governs every actions of the individuals as well as of the society as a whole, where in short, it forms the only incentive to all actions, worldly and spiritual, it is difficult to distinguish these two factors clearly. They become one, as it wereFootnote 40 … [and thus] [r]eligion, in its essence is that which by regulating society … raises the whole society as such from the material through the moral to the spiritual plane.Footnote 41
Under such an understanding, it is possible for Golwalkar to define the Indian nation as a combination of five essential elements: the country “Hindustan, the Hindu race with its Hindu Religion, Hindu Culture and Hindu language.” Moreover, to surmise that “all those not belonging to the national, i.e. Hindu Race, Religion, Culture and Language, naturally fall out of the pale of real ‘National’ life.”Footnote 42
Although Hinduism is not centred on one central easily defined canon,Footnote 43 this does not prevent Hindu nationalists from using religious texts to ground their understanding of Indian national identity. The matter of the Ayodhya temple bears witness to this. Ayodhya is the site of a struggle over the existence of a mosque on the supposed birthplace of the god Ram. It is fitting then as a place in which the Hindu-nationalist narrative can easily connect to an ancient religious narrative. Indeed, it is in the RamayanaFootnote 44 that we find:
[O]ne of the two great Indian epics about the creation of the mythical Indian kingdom, Rama is the father of the Hindu nation, the perfect king who brings happiness and prosperity to his whole realm and to all people. His reign, rama rajya, is not only the paradigmatic form of Hindu sovereignty and governance, but also the index by which all existing political structures are to be judged and toward which the Indian polity must be pushed.Footnote 45
The mythical time of Hindu prosperity was ruined and corrupted by the rule of foreigners (Muslims) over the Holy Land of India. This corrupting rule is continued today by the secularist national project, which continues to oppress Hindus while protecting the loathed minority religions. It is the role of Hindu nationalism to return Hinduism to the centre of the Indian state. Membership of the Indian nation requires religious groups not to convert to Hinduism, but rather to assimilate and accept its control over public life and its centrality in determining national identity.Footnote 46
An alliance of three organizations make up institutionalized Hindu nationalism today: the Baharatiya Janata Party (BJP), the political party currently holding the reins of power in India; the Vishva Hindu Parishad (VHP), a religious organization; and the Rashtriya Swayamsevak Sangh (RSS), a political volunteer organization. All three of these organizations hold Hindutva as their core ideology and have many millions of members and volunteers. This means that they equate “religious and national identity” in a way that “puts important Indian religious communities, such as Christians and Muslims, outside the nation.”Footnote 47 The collapsing of Hindu-ness and Indian-ness into one can also be seen in the political programme of Hindu nationalism. For example, Balraj Madhok, who was former president of the BJP and a prominent RSS ideologue, lays out his plan for Indianization that includes the following policy suggestions:
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1. Education should be based on national culture and tradition. Knowledge about Upanishads, Bhagvad Geeta, Ramayana, Mahabharata … will be considered essential by people of all parts of the country.
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2. The major festivals of the country like Holi, Diwali, Raksha Bandhan and Vijay Dashmi [should] be treated as national festivals and celebrated as such.
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3. Sanskrit language should be revived and its knowledge be made compulsory for all votaries of higher learning.
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4. Indian History should be so re-written that it may become the record of the Indian people and not merely of foreign invaders and conquerors.Footnote 48
We have seen in the last two sections the contours of religious-nationalist ideology in Israel and India. Based on these accounts of religious nationalism, the next section delves into the idea that religious nationalism is a part of an overlapping legitimation of the state and argues that this constitutes the uniquely challenging relationship of intimate rivalry.
3.3 Intimate rivalry in India and Israel
In India and Israel (and in many other countries), religion and nationalism create an effect of overlapping political legitimation—that is, they operate concurrently in society to justify state authority. I argue that this overlap creates a relationship of intimate rivalry. Religious-nationalist groups are intimate, since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. This means that they are free of some of the unifying pressures of state nationalism. As rivals, they fundamentally challenge the political identity promoted by the state while competing and co-existing with secular state nationalism.
The narratives of state founding offered by secular and religious nationalism exemplify both the intimacy and the rivalry between state nationalism and religious nationalism. For example, the Constitution of India declares itself to be an act of the people of India and does not mention Hinduism as a source of authority. Jawaharlal Nehru saw the unifying culture and history of the Indian subcontinent to be the ground of Indian nationalism:
Ancient India, like ancient China, was a world in itself, a culture and a civilization which gave shape to all things. Foreign influences poured in and often influenced that culture and were absorbed. Disruptive tendencies gave rise immediately to an attempt to find a synthesis. Some kind of a dream of unity has occupied the mind of India since the dawn of civilization. That unity was not conceived as something imposed from outside, a standardization … of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and custom was practiced and every variety acknowledged and even encouraged.Footnote 49
Contrast this with the words of Vinayak Savarkar, which we have considered above: “A Hindu means a person who regards this land … from the Indus to the Seas as his fatherland as well as his Holyland.” Although the territorial idea of India was similar for both secular and religious nationalism in India, for the latter, the idea of who constitutes the people is defined by religion. Savarkar wrote concerning Christians and Muslims:
They cannot be recognized as Hindus. For though Hindustan (India) to them is the Fatherland as to any other Hindu, yet it is not to them a holy land too. Their holy land is far off in Arabia or Palestine. Their mythology and Godmen, ideas and heroes are not the children of this soil. Consequently their names and their outlook smack of a foreign origin. Their love is divided.Footnote 50
The master narratives of secular state nationalism and religious nationalism overlap significantly. The relationship of secular Zionism to the land of Israel is based on the biblical story, whether God is expunged from it or not. This is a crucial part of what can be named Israeli civil religion. In the context of Israeli civil religion, the ideas of religious Zionism do not sound as foreign as they would in a state with a national narrative and a civil religion that has little in common with a religious tradition; an example of this may be modern France. This is also true in India. This overlap can be easily found in the figure of the revolutionary Mahatma Gandhi. Although his political positions clearly favoured a secular India (in fact, he was murdered by a Hindu nationalist), much of his charisma was derived from being an extremely devout Hindu. This is the overlap between narratives that enables religious nationalism to promote positions that radically differ from and that are in fact adverse to those of the mainstream political community, while facing almost no backlash. In other words, the fact that the ideas and positions of Israeli and Indian civil religion, relying deeply on the cultural resources of Hinduism and Judaism, are still a part of the mainstream political discourse in these countries makes religious-nationalist ideology sound acceptable and legitimate almost across the political board. This relationship is an excellent example of overlapping legitimation. Both narratives operate concurrently in society to explain and justify state authority.
During the founding period and the following decades in both India and Israel, religious nationalism played, at most, a supportive role to the national project. This is not to mean that there were no points of tension, but rather that the popularity and legitimacy of the founding generation put together with their complete dominance in the political, legal, and cultural spheres made religious nationalism a minor rival at best. All of these factors have shifted in the last few decades. The political power of the Congress party in India and of Labor in Israel broke and, in parallel to it, we witnessed a gradual shift of power from old-guard elites, who were apparent supporters of secular nationalism, to elites who were more supportive of religious nationalism.
Another reason why the competition between master narratives is especially challenging in states like Israel and India is the idea that secular state nationalism is a corrupting foreign, Western ideology. This is related to the fact that the carriers of secular nationalism were not, and are not, mainly members of any religious community. For many of the founders of Israel and India, headed by their first Prime Ministers Ben-Gurion and Nehru, respectively, secular nationalism was not only a way to unite very diverse populations, but also a way to subvert what they saw as the potentially damaging religious influences on their political project. Nehru, in what is clearly a secular nationalist polemic, argues:
A blind reverence for the past is bad and so also is contempt for it, for no future can be founded on either of these. The present and the future inevitably grow out of the past and bear its stamp, and to forget this is to build without foundations and to cut off the roots of national growth. It is to ignore one of the most powerful forces that influence people. Nationalism is essentially a group memory of past achievements, traditions, and experiences, and nationalism is stronger today than it has ever been.
In the same text, he beseeches his fellow citizens to abandon “that narrowing religious outlook.”Footnote 51 The issue here is, however, that, although Ben-Gurion and Nehru assumed (as was common then) that religion would either go away or remain subdued, this was not to be the case. This type of perceived dismissal is central to one of the major arguments used by religious nationalism across the world: that secular nationalism is generally a Western, inauthentic, and unnecessary transplant.Footnote 52
An additional aspect of the overlapping legitimation is that religious nationalism often does not need to present itself as being in fundamental opposition to the state—that is, they are intimate with mainstream national and political culture. In fact, due to the fact that religious nationalism—at least in our case-study states—is part of the original legitimating narrative of the state, it is able to present itself as merely a reforming force. The state has been corrupted and led away from its wholesome roots by secular nationalism and liberalism, and needs to be shepherded back by the religious nationalists. In India, the argument by the Hindu nationalists is that “special treatment of Muslims and other religious minorities has perpetuated the oppression of Hindus.” The answer to such corruption is to establish a “Hindu Rashtra”—“India must be a Hindu State.”Footnote 53 In Israel, we see the same type of logic in the case of evacuating settlements. Those who advocate for such a policy are either deeply misguided about or deeply corrupt with regard to the real reason why we are in the Judea and Samaria (the biblical names for the West Bank). We can find this reasoning easily in the election platform of the major religious Zionist political party, Habayit Hayehudi, which states that “the movement sees the settlement of all parts of the Land of Israel as the fulfilment of God’s Law and the prophecy on the return of the people of Israel to their land to dwell forever” and also that “the movement will not cooperate and will resist any freezing of the settlement project due to diplomatic pressure, at any point whatsoever.”Footnote 54 That this referral to the divine plan is just mentioned, without any masking, shows how much the religious Zionist vision of the state is an acceptable, mainstream part of Israeli political discourse.
When religious nationalism is a sociologically legitimate part of the national narrative, its adherents are able to promote their point of view and agenda by using the political machine of these nation-states. Although they represent a radically different understanding of the state and call for major transformation, the fact that they are seen as a plausible and acceptable part of the national narrative means that they do not meet the same exclusion and aggressive opposition as are met by others. This creates a relationship of intimate rivalry, which is quite unique. In both Israel and India, the dynamic of intimate rivalry has allowed explicit and outright religious-nationalist parties to become highly influential. In Israel, many of the policies in regard to the occupation of the West Bank and the relationship of religion and state are designed in accordance with religious-nationalist power and ideology. In India, the Hindu-nationalist movement “has grown into the most powerful cluster of political and cultural organizations.”Footnote 55 Indeed, the BJP is now the dominant political party in India and has been ruling the country for several years.
The presentation of religious nationalism in India and Israel not as a revolutionary force, but as a legitimate and mainstream ideology is also enabled by their basic acceptance of the idea of democratic rule—that is, they accept “the political apparatus of the modern nation-state.”Footnote 56 The agenda of religious nationalism is invested only in the content and the source of authority of politics, not with the form they currently take. In both countries, religious nationalists often criticize “liberal” social and legal agendas from a “democratic” majoritarian perspective.
In the next section, I will discuss the different ways in which intimate rivalry manifests itself in the context of the relationship of the state to religion—a relationship that is very different in Israel and in India.
3.4 Intimate rivalry and constitutional secular identity
The status of intimate rivalry means that the religious-nationalist groups are spared much of the political, legal, and cultural pressures facing other factions. For example, imagine the numerous ways in which minority religious groups in India and Israel experience immense pressure. Not only do they face the sanctions of presenting a position that is repugnant to mainstream society, but they are also a target of the state’s security apparatus and are unable to present their national narrative in their education systems and in mainstream culture. Being a legitimate part of the political culture allows religious nationalism to escape much of this. More so, it allows religious-nationalist groups to harness the political and legal institutions of the state for their own goals. One of these methods is through exploiting the ways in which the state protects or limits religion. Obviously, the variance of ideologies on the other side of “intimate rivalry” matters here, namely the fact that Israeli and Indian state nationalism is of a very different nature—one that impacts the ways in which the intimate rivalry of religious nationalism manifests itself. In this section, I will explore how this dynamic takes shape in the constitutional regimes of India and Israel.
The secularism promoted by the Israeli Supreme Court is of a “visionary” model.Footnote 57 It wishes “to accommodate the particularistic aspirations of Jewish nationalism in Israel within a constitutional framework of liberal democracy.”Footnote 58 Israeli secular nationalism (as also expressed by the court) is paradoxically linked to a vision of an explicit “Jewish” state. The Jewishness of the state has many emanations, for example, in state symbols, education, and immigration policy. The one that is most relevant here is the fact that Jewish Orthodoxy is in many ways an established religion in Israel. Many state entities, such as the army and municipalities, employ their own rabbis, businesses are generally closed on the Sabbath, and, perhaps most importantly, the state funds separate religious education. The state provides religious institutions affiliated with Jewish Orthodoxy with funding and exempts their members from generally applicable laws that contradict their beliefs, such as exempting religious Zionist women from serving in the IDF. This means that they benefit both from government policies that actively support Orthodox religious organizations and from liberal accommodations derived from the principle of freedom of religion.
In this situation, it is absolutely in the interest of religious nationalism to use its status as a “religion” to gain as many resources and influence as possible. First, religious Zionism has its own education system, starting from kindergarten all the way up to institutions of higher education. In this regard, it is similar to the Palestinian Israeli population, with one significant difference: while the Arab-speaking schools in Israel are certainly not allowed to promote their Palestinian national narrative in the government-run school system, the curriculum of religious Zionism is full of its own brand of nationalism. Unlike the ultra-Orthodox education system, which is primarily funded by the state but is not defined as an official state-school system, the religious Zionist education system is given that formal brand. A similar structure exists in regard to mandatory service in the IDF, in which religious Zionist youth are able to serve a much shorter period and in their own separate units. This means that religious Zionists are able to gain both the prestige and the legitimacy of participation in formal state institutions and, at the same time, not be subjected to the integrative cultural and social effect of these institutions. In this regard, existing under a secular visionary regime, religious Zionism is perfectly happy with being a “religious movement.”
The opening of the Indian Constitution declares it a “secular democratic republic” and seeks to provide for all its citizens “liberty of thought, expression, belief, faith and worship,” as well as “equality of status and opportunity.” This vision, in the face of a profoundly unequal and divided society, calls for a different type of project, which Gary Jacobsohn calls “ameliorative secularism.” The nation-building model of India is oriented towards the social reform of religious institutions that have disabling social effects, first and foremost of these being the Hinduism-based caste system, the institutionalization of which the Indian Constitution prohibits. The idea of Indian ameliorative secularism is that, since Indian social order is dominated by thick religious institutions and divisions, the attempts to produce a unified, secular Indian identity require intervention in religious institutions. The Indian Constitution “seeks an amelioration of the social conditions of people long burdened by the inequities of religiously based hierarchies, but also embodies a vision of intergroup comity whose fulfillment necessitates cautious deliberation in the pursuit of abstract justice.”Footnote 59 The supremacy of social reform and nation-building over the values of religious freedom is explicit in Article 25 of the Constitution, which guarantees the individual right to “profess, practice and propagate religion,” explicitly subjugates this freedom to “public, morality and health,” and states that nothing in the article will prevent the “state from making any law … providing for social welfare and reform.” The ameliorative task of the Constitution in the case of religion can be seen in the call for the state to “endeavor to secure for the citizens a uniform civil code,” which will override the different sets of personal religious laws (Article 44), to totally abolish the phenomenon of untouchability (Article 17), and to protect the scheduled tribes and castes from social injustice (Article 46). This need to reform social inequalities in Indian society, while building a national identity that includes significant religious minorities, means that the burden that the Indian Constitution lays upon the majority religion is significant. For example, although minorities are guaranteed the right to run their own educational and religious institutions (Article 30), that is not true for the Hindu majority. Another major legal attempt to curb the effects of Hindu dominance is the prohibition of using religion as a political campaigning tool. Under the Representation of People Act (1951), it is illegal to campaign under a religious platform. These institutions of ameliorative secularism, which severely limit the ability of religion generally and Hinduism specifically to express itself publicly, mean that, in India, the legal effects of the intimate rivalry of religious nationalism are quite different from those in Israel.
In the context of an ameliorative secular constitutional regime, Hindu nationalism has strong incentives to present its ideology as being a matter of politics and not religion. In fact, it often portrays itself as the protector of Indian secularism. This ironic shift allows it to enjoy the status of intimate rivalry while avoiding confrontation with the reforming tendencies of the Constitution. Specifically, Hindu nationalism exploits the cracks created by the dual constitutional commitment to social reform and the protection of minority religious groups. Hindu nationalism positions itself “as a defender of secularism whenever the state acts to preserve the group identity of religious minorities.”Footnote 60 Instead of ameliorative secularism that seeks to treat all religions with equal respect, we find majoritarian secularism, which holds that the Hindu majority “sets the norm by which religious minorities must abide.” One area in which this ironic distortion of secularism into Hindu nationalism is most pronounced is the Hindu nationalists’ support of the secular Uniform Civic Code (UCC), which would replace the current pluralist legal regime that allows religious groups to handle their own marriages and divorces according to their laws. The UCC, however, is meant to be closely related to the culture of the majority, namely Hinduism. This support allows Hindu nationalists to promote their political objective of applying Hindu norms to other religious minorities, particularly the Muslims, who represent the nemesis figure for Hindu nationalism.Footnote 61
This move towards defining religious-nationalist goals as not religious was complemented and aided by a series of constitutional cases in which the courts declared that Hindu nationalism was not a religious political movement, and was thus free of the norms that limit religious political participation. These cases, commonly known as the “Hindutva cases,” were brought under the Representation of People Act (1951), which prohibits the use of religious symbols or religions in promoting or hindering the election of candidates. In a representative case, Ramesh Yeshwant Prabhoo v. Prabhakar Kasinath Kunte, a Hindu-nationalist elected official was prosecuted for using religion in violation of the Representation of People Act during his campaign in the state of Maharashtra. Here, the leader of the local Hindu-nationalist party, Shiv Sena, stated during the campaign:
Hinduism will triumph in this election and we must become honorable recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out …. A candidate by [the] name [of] Prabhoo should be led to victory in the name of religion.Footnote 62
The argument presented by Prabhoo in defence of this type of campaign could be summed up in the idea that the “Hindutva” is a reference not to Hindu religion, but to general Indian culture.Footnote 63 Although the Supreme Court in this case upheld the ruling that the Prabhoo campaign was in violation of the law, it did concur with the idea that Hindutva “is related more to the way of life of the people in the subcontinent [and] is not be equated with, or understood as religious Hindu Fundamentalism.”Footnote 64 The court went on to argue that the term “is used and understood as a synonym of ‘Indianization,’ i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country.” This position of the Supreme Court was reiterated in the other Hindutva cases and the Prabhoo decision was even cited by the BJP in its 1999 election manifesto as proof that Hindutva is compatible with Indian secularism.Footnote 65
This conclusion by the Indian Supreme Court on the meaning of Hindutva further exemplifies the way in which the intimate rivalry status of religious-nationalist groups operates to absolve them from most government pressure. In the context of ameliorative secularism, Hindu nationalism, as a part of the overlapping legitimation of the Indian state, is able to present itself as a protector of Indian secularism and challenge the goal of building a unified Indian identity that is not based on Hinduism. Hindutva, abstracted from the majority religion, now must become the way of life for all the people of India.
Enjoying the status of intimate rivalry means that the circumstances facing religious-nationalist groups and institutions vary significantly from those of other religious minorities. If this is true, then this raises normatively severe questions with regard to the protection given to religious and cultural groups within liberal constitutional regimes, such as those that are broadly present in India and Israel. The next section will discuss the challenges of applying ideas of religious freedom to religious nationalism.
4. Freedom of religion and religious nationalism
In this concluding section of the article, I will argue that the dynamic of intimate rivalry changes the political and legal status of religious nationalism when examined in accordance with several of the central justifications of religious freedom. First, I will examine two sets of justifications for religious freedom—based on ideas of culture and democracy—and show that they apply in a much weaker way to religious-nationalist groups that enjoy a relationship of intimate rivalry. Subsequently, I will argue that the encompassing nationalist nature of religious nationalism poses a challenge to the ability to maintain a relatively unified political culture. It follows that, if we are convinced that the right to religious freedom is necessary in order to protect cultures or promote democracy, then we have good reason not to accommodate religious nationalism in the same way as we do with reclusive religious groups, for example.
However, this argument does not hold with regard to all justifications of religious freedom. Specifically, since intimate rivalry shifts the political status of religion, it has little traction when it comes to the individualist and moral conceptions of religious freedom, especially to those grounded in freedom of conscience. Since the argument is that religious nationalism, under conditions of overlapping legitimacy, is able to maintain its culture and participate in the democratic game effectively, it has less need for exceptional protections such as religious freedom. This type of argument does not apply to the idea that religious freedom is justified as an instance, whether unique or generic, of the freedom of conscience.
Freedom of conscience is a widely used justification for the protection of the freedom of religion. The basic premise of this justification is that religious beliefs are deep, constitutive convictions. Making someone act against her religious belief is akin to forcing her to act against her conscience, against the ideas and values that are at the core of who she is. The affinity of these two concepts—religion and conscience—is so pronounced that, in certain jurisdictions, they are united into one concept. We find this in Article 9 of the European Convention on Human Rights, entitled “Freedom of Thought, Conscience and Religion.”
The exact scope of the idea of conscience is a matter of debate. For example, in a recent book, Gideon Sapir and Daniel Statman define conscience as referring to “those normative commitments that define us and whose violation is perceived as unthinkable from our internal point of view.”Footnote 66 This view emphasizes the inherent impossibility of acting against one’s beliefs as the essential attribute of conscience. This fits well with a common understanding of religious beliefs, which are often experienced as originating from external sources of authority (the Divine). A different view of conscience is offered by Martha Nussbaum in her book, Liberty of Conscience, in which she defines conscience as “the faculty in human beings with which they search for life’s ultimate meaning.”Footnote 67 For Nussbaum, this is a foundational human capacity and is at the centre of what makes us human and worthy of respect and dignity. Since it is at the heart of what it means to be human, it is most worthy of protection. The special treatment of religion is justified here because it is strongly related to questions about the meaning of life. Limiting religious life is inhibiting the ability of individuals to pursue the search for the meaning of life. Freedom of conscience explicates the unique protections afforded to religion only if it is able to distinguish between religious and non-religious conscience. One scholar who defends such a distinction is Michael McConnell. He argues that it is the divine source of the norm that makes religious beliefs deserving of special protection. Unlike secular conscience, which is a result of an autonomous decision, religious conscience comes from deference to the Divine. Due to this, religion deserves special treatment “not because religious judgments are better, truer, or more likely to be moral than non-religious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual’s control.”Footnote 68 Many argue that this distinction between religious and non-religious beliefs is unconvincing; transcendence is not actually unique to religious belief. In the words of Douglas Laycock:
The nontheist’s belief in transcendent moral obligations—in obligations that transcend his self-interest and his personal preferences and which he experiences as so strong that he has no choice but to comply—is analogous to the transcendent moral obligations that are part of the cluster of theistic beliefs that we recognize as religious.Footnote 69
One way or another, it seems clear that the dynamic of intimate rivalry does very little to a conscience-based justification of religious freedom. The fact that religious nationalism is exempt from the unifying forces of state nationalism does not transform its status as a strong form of belief, whose violation comes at a high price. Let me now turn to more communal and political justifications of religious freedom, where the potential effects of intimate rivalry are far more pronounced.
4.1 Freedom of religion as a form of cultural protection
The cultural defence of religious freedom is grounded in the understanding that human beings operate through, and are embedded in, cultures. This type of argument is supported by two distinct political theories: perfectionist liberalism and liberal multiculturalism. The perfectionist argument goes as follows: if a person is only able to live their lives within a culture, this implies that, in order to become more autonomous, one must have multiple cultural options to choose from, which requires the state to protect minority cultures. In the terms of Joseph Raz, the ability of individuals to become authors of their own lives is reliant on the maintenance of a variety of attractive cultural options within a society. Diversity is a prerequisite of meaningful human autonomy. The multicultural argument starts with the premise that an individual is constituted by their culture. The ability of individuals to exit one culture and integrate into another is minimal, and such moves come at a high cost (think here of the struggles faced by first-generation immigrants). The difficulty of shifting between cultures means that most persons can only flourish when their constitutive culture is respected and protected.Footnote 70
Religion is a cultural system: a repertoire of ideas, traditions, and conventions through which humans make sense of their environment and operate in it. It is also often described as an encompassing culture—one that is related to many parts of a human’s life.Footnote 71 Thus, the justifications for protecting cultures seem to extend and encompass the protection of religious freedom. Accordingly, religious freedom is justified and made necessary as an instance of the right to culture.
Constitutional rights are interpreted through their perceived goals. If religious freedom is an instance of the right to culture (justified in itself or instrumentally to protect autonomy), then one of its primary goals is “to enable religious groups to form and maintain themselves, and to recruit new members.” This makes the question of whether social and political pressures endanger the ability of specific religious groups to maintain their unique culture the key to applying the right. If they do not, then the justification for the protection becomes weaker. Thus, a small, reclusive religious group, which does not have the political wherewithal to establish and protect the institutions (such as schools) that it requires in order to survive, requires more cultural protection than a more powerful group. An intuitive example is states in which there is an established religion. Does it make sense to protect the religion that is actively promoted and funded by the state in the same way as one that is not? It seems as though the active support of the state, with its underlying social and cultural forces, and which is usually accompanied by easy access to political and cultural power, minimizes the need for the constitutional protections.
A similar logic applies to situations in which establishment is not formal, but rather a result of cultural forces. Will Kymlicka argues that “it is quite possible for a state not to have an established Church. But the state cannot help but give at least partial establishment to a culture.”Footnote 72 That is, the culture of the majority is necessarily promoted by the state. The majority culture is established in this and other ways, and thus its ability to maintain its own unique culture is not in any peril. As Halbertal and Margalit put it succinctly, the majority culture “is able to maintain a more or less homogeneous environment without privileges by virtue of its being the culture of the majority.”Footnote 73 That is, it does not need constitutional protections in order to survive.
The need to protect culture through constitutional law, which is meant to limit and direct the behaviour of the state, is also required because of the overbearing nature of the state as a propagator of culture. At a minimum, states promote a singular political culture grounded on ideas of citizenship and sovereignty. Usually, state-promoted culture is much more elaborate and overlaps significantly with the culture of the political elite. This expansive nature of the modern state is the very thing that requires the constitutional protection of cultural minorities. Due to this, accounting for the relationship of the religious ideology with the culture that is promoted by the state has significant implications as to how much it requires religious freedom.
Although religious-nationalist positions are not necessarily part of the majority culture in Israel and India, they are still able to maintain their culture without constitutional protections. Their ability to promote their interests as part of the majority’s political culture and the fact that they are a part of the general sense of state legitimacy mean that religious nationalism is absolved from the integrative pressure applied by the state. In Israel, this partial establishment is clear. Jewish Orthodoxy is a de facto established church. Although not all Orthodox Jews are religious Zionists (in fact, many adamantly oppose Jewish nationalism), it still means that many of the laws of the state and the religious exemptions provided by the state are supportive of the religious Zionist community. These include, among other things, a partial exemption from army service, a separate education system, and funding for religious institutions such as synagogues. This implies that the central institutions required to maintain religious Zionist culture are actively encouraged and funded by the Israeli state. In India, aside from the undeniable fact that the BJP ruling party is explicitly Hindu-nationalist, we also find the partial and cultural establishment of Hinduism in Indian law, from the symbolic cow-protection clause in the Indian Constitution to the many state statutes that prohibit cow slaughter and religious conversion.
To sum up, religious nationalism in our case-study states is partially or culturally established. It is able to navigate state politics and law without the handicap of being a religious or cultural minority and is able to maintain its culture without the protection of entrenched constitutional norms. This situation means that, for all intents and purposes, the intimate status of religious nationalism, when it is a part of the overlapping legitimacy of the state, makes it a part of the majority culture that does not require exceptional constitutional guarantees, such as freedom of religion, to maintain its culture.
4.2 Freedom of religion as democratic remedy
The democratic justification for religious freedom sees it as a remedy to the imperfections of democratic rule. One classical variation is John Hart Ely’s classic “representation-reinforcing theory of judicial review,” which sees the role of constitutional law as reinforcing the democratic process. For Ely, this meant that the goal of rights-based judicial review and of religious-freedom protections is to compensate for likely failures in the democratic process. One such failure is the uphill battle faced by certain minorities when they attempt to access political power through the democratic process. Mere formal political access (through elections, etc.) is an inadequate counterweight to the prejudice of the majority. Crucially, according to Hart, judicial scrutiny and protection should be enhanced when dealing with groups that cannot be protected through the political process. The other side of the coin is that groups that are easily able to provide for themselves through the democratic bazaar should be given lesser protection by the courts.
Viewed through this prism, the constitutional right to religious freedom comes to counteract the unfair obstacles that some religious groups face in attaining enough political power to protect themselves from the state. It does not protect religion due to the unique nature of religious beliefs, but because, very often in liberal societies, the prejudice of the majority creates an uphill battle for religious groups when they seek to access political power.
Religious-nationalist groups, when they are part of the overlapping legitimacy of the state, are relatively exempt from the prejudices of the majority. This is what makes them intimate rivals: the fact that their political worldview is a plausible part of the political culture promoted by the state. As I suggested earlier, this means that, although religious-nationalist groups are a minority in most liberal states, they are still able to access political power as a part of the majority. This suggests that they require less extensive constitutional protections. In other words, their religious freedom is not under any majoritarian threat, and they do not necessarily require constitutional protections.
Normative political theory provides another democratic justification of religious freedom. Since, as many scholars suggest, religious reasoning should not be used in democratic public deliberation, then certain exemptions from general rules are required as a compensatory mechanism. The reason for the exclusion of religious arguments from deliberation is grounded, usually, on a sense of public reason—that is, on the idea that arguments that are made in the political sphere should be grounded in values and reasons that are common to most (or all) of the citizen body. A person should not be subjected to laws that are grounded in reasons that she cannot comprehend. A version of this argument is offered by Avihay Dorfman when he suggests:
Freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is explained by a republican concern for political self-determination, while exclusion is prescribed by a liberal ideal of political legitimacy.Footnote 74
Since religious reasons are excluded from the deliberation that produces generally applicable laws, these, in turn, need to “introduce an accommodating provision on which religious persons can rely if exercising their religious commitments are threatened by them.” Only citizens who can see themselves as authors of the law should be subjected to it.
Religious-nationalist ideology challenges the ability of exemptions to compensate for their exclusion from democratic deliberation. The idea that exemptions are able to compensate for the dearth of religious arguments in democratic deliberations clearly assumes that the general laws under contention can be exempted from. For example, a clerk can be exempted from signing documents related to same-sex marriage. However, encompassing religious nationalism is interested not only in the imposition of the law on religious individuals, but also in the behaviour of the state itself. In other words, Dorfman’s account does not work when taking into account the encompassing and public nature (i.e. the nationalist nature) of religious-nationalist ideology. The problem that religious nationalists have with legislation cannot be resolved by the fact that they will be exempted from it. Instead, their qualm is that it applies to the general political sphere, which is imbued with religious meaning. If this is true, then the compensatory justification of religious freedom that Dorfman suggests does not apply well to religious nationalism.
4.3 Religious nationalism and the political community
In the section above, I have argued that religious nationalism enjoys, insituations of overlapping legitimacy, the same privileges as the majority political culture. For this reason, it does not require the same level of cultural defence in the form of freedom of religion as other cultural and religious minorities do. In this section, I will try and argue that the fact that religious nationalism is a competing and encompassing national movement means that the liberal state has positive reasons not to accommodate it.
Liberal constitutional nation-states are reliant on cultural legitimacy, on a shared understanding that sees state power as a thing worth adhering to.Footnote 75 This sense is usually derived, at least in part, from the existence of a unifying national narrative, such as that represented by the idea of popular sovereignty.Footnote 76 This shared political identity has precedent over other cultural identification within the state. In the words of Habermas:
[Citizens] are equally empowered to develop what is for them their cultural identity and might appear to others as cultural idiosyncrasies, but only under the condition that all of them (across boundaries) understand themselves to be citizens of one and the same political community.Footnote 77
The justification for the promotion and protection of a unifying statist political culture can be based on a Hobbesian-like emphasis on civic peace and political stability. Alternatively, it is often grounded in normative theories that are broadly liberal, in which the need for the state to promote a common political culture (almost always in the form of a shared national identity) is justified as a necessary instrument for the promotion of democracy, the rule of law, distributive justice, etc.Footnote 78
The justified interest that the state has in maintaining a common political culture limits the idea of cultural accommodation, and thus sets the boundaries of religious freedom. It seems reasonable to argue that, if the arguments supporting the promotion of a statist political culture are correct, then cultural diversity should only be accommodated as long as it is congruent with the continuity of the common political culture. In other words, we should accommodate and protect cultural minorities as long as they do not challenge the contemporary sense of state legitimacy. Under this prism, it would make little sense for a liberal nation-state to accommodate national minority groups. Groups that may wish to maintain a national culture that has separatist ambitions have the potential to fragment and undermine the political community, and should certainly not be accommodated.
However, this view is in deep tension with the moral and political interests that minority groups have in maintaining their culture across generations.Footnote 79 Individuals cannot be easily detached from their culture and can only flourish in a situation in which their culture is thriving and respected. It is up to the state to protect these cultures from its own encroachments as well as the pressure generated by the majority culture. The danger of cultural disintegration seems even stronger in the case of national minority groups, since they are often seen as endangering the state and can be easily cast as enemies. It follows that an individual’s interest in the survival of her culture is one that can certainly also apply to religious nationalism. From this point of view, it is hard to distinguish between a religious Zionist, for instance, and an Israeli Palestinian; both would be severely hurt by the destabilization of their cultures. However, there is a critical distinction between them, aside from the fact that one enjoys the status of an intimate rival.
Religious nationalism is an encompassing national ideology, insofar as it is concerned with the nature of the nation-state as a whole. It is interested in not only maintaining its own separate existence, but also integrating the rest of the nation into its own culture. In this regard, religious nationalism is similar to various radical revolutionary groups that seek to overtake and overhaul the state. In contrast, separatist groups seeks to isolate themselves from the state and its national culture as much as possible.
In many cases, accommodating measures have helped to alleviate (although not resolve) the tensions between nation-states and national separatist groups.Footnote 80 Is it reasonable to expect the same to occur in the case of encompassing national groups? Clearly, the ideological ambitions of encompassing nationalists are hard to accommodate. For example, the national ambitions of religious nationalism in our case-study states can only be fulfilled through the fundamental transformation of the state as a whole. There are no half measures. In this situation, it is hard to see how the moral weight of the right to culture overcomes the interests of the liberal state in maintaining its common political culture. This does not mean that the state must be intolerant towards encompassing nationalist groups, but rather that they do not warrant cultural protection. To conclude, the encompassing nature of religious-nationalist ideology adds more weight to the argument that religious freedom, as a means of cultural protection or of enhancing democratic representation, should not apply to religious nationalism.
5. Conclusion
The constitutional theory of religious freedom is blind to the challenge of religious nationalism. This myopia is an issue, because these movements, which seek the religious transformation of national politics, have become hugely influential in recent decades. Two factors make religious nationalism into a unique religious ideology. First, religious nationalism has an encompassing theological investment in the behaviour and identity of the state. This theology becomes much more threatening when combined with the second factor, which is the status of religious nationalism as closely related to the civil religion in these states. This relationship brings this radical religious ideology into a relationship of intimate rivalry with secular nationalism, allowing religious-nationalist movements to become a legitimate, unproblematic part of politics, while at the same time challenging its underlying narratives and institutions.
This unique relationship is relevant to a normative legal inquiry. In fact, the major political justifications for a regime of religious freedom, namely that it is meant to protect cultures or to compensate for democratic deficits, are far less convincing when applied to religious-nationalist groups that enjoy a status of intimate rivalry.
Acknowledgements
The author is deeply grateful to Paul Kahn and Anthony Kronman for countless conversations, insightful feedback, and guidance. This article benefited greatly from comments and suggestions made by Samuel Moyn, David Grewal, Shai Wozner, Jaclyn Neo, Brett Scharffs, Gordon Silverstein, Ofra Bloch, Daniel Maggen, Roman Zinigrad, Sebastian Guidi, Fernando Braccacinni, Natalia Pires, Shlomit Jessel, and participants in workshops at Yale Law School, the National University of Singapore, and Bar-Ilan University.
