A. The Indian Supreme Court: Wavering between Tolerance and Respect?

The Supreme Court of India operates in a constitutional setting marked by two antagonistic claims on constitutional identity: the secular and the Hindutva.Footnote ⁷⁷ Advocates from both camps have drawn on the notion of tolerance to support their aspirational claims. Initially, this ideological battle was fought outside the courts. As a result, tolerance does not feature prominently in the early case law of the Indian Supreme Court.Footnote ⁷⁸ This changed, however, with the 1994 landmark case of SR Bommai. In this landmark judgment, the Supreme Court identified ‘religious tolerance’ as ‘an essential part of secularism enshrined in [the Indian] Constitution’.Footnote ⁷⁹

SR Bommai would have a profound influence on the Supreme Court's religious freedom case law. One immediate consequence was a marked increase in references to tolerance and respect in subsequent judgments.Footnote ⁸⁰ This change suggests that Indian Supreme Court justices have found, in the aftermath of SR Bommai, value in casting their religious freedom judgments in the language of tolerance and respect. A recurring passage on the links between tolerance and respect, India's religious diversity, and the secular nature of the Indian Constitution is indicative:

The Supreme Court's attitude towards religion, then, seems to be driven by both tolerance and respect. The Supreme Court can note in one judgment that ‘[a]rticles 25 and 26 [of the Constitution] embody a tolerance for all religions’,Footnote ⁸² to find in the next that ‘the Constitution gives equal respect to all … sects’.Footnote ⁸³ It is tempting to construe this as wavering between incompatible values. But, as mentioned earlier, both statements are not inherently contradictory. Much depends on the conceptions of respect and tolerance employed.

In examining which conceptions of tolerance and respect find favour in the Indian Supreme Court, we should however remain mindful of the ‘polyvocality’ of the Indian Court.Footnote ⁸⁴ Unlike the US Supreme Court, which sits en banc, the multi-bench Indian Court speaks with many voices in a wide array and immense number of cases.Footnote ⁸⁵ Different benches of the Court can, and do, interpret the Indian Constitution differently.Footnote ⁸⁶ Conflicting preferences of individual justices further add, especially on smaller benches,Footnote ⁸⁷ to interpretive inconsistencies between judgments.Footnote ⁸⁸ Nick Robinson has nevertheless argued that the Court's polyvocality does not automatically cause incoherence in its case law.Footnote ⁸⁹ Robinson also posits that polyvocality can be valuable, in that it generates opportunities for justices to innovate by strategically pushing precedents in a new direction.Footnote ⁹⁰ This last point is key to understanding the evolving role of tolerance in the Indian court's case law (see Section IV).

The image to emerge from the case law is, in any event, not one in which the Indian Constitution treats religion with indifference.Footnote ⁹¹ Instead, the Supreme Court reads the Constitution as extending appraisal respect to religion, against objections and disapproval in society: ‘our Constitution is benign and sympathetic of all religious creeds however unacceptable they may be in the eyes of the non-believers’.Footnote ⁹² Yet, herewith the spectre of incompatibility between tolerance and respect re-emerges. Following Carter, the kind of appraisal respect extended to religion by the Indian Constitution is logically incompatible with tolerance. Crucially, however, this conclusion only follows if tolerance is understood in its usual philosophical terms, as implying inherent disapproval. But the Indian Supreme Court seems to conceptualise tolerance differently. In Indian constitutional law, the disapproval inherent in tolerance is pushed to the background, allowing it to be recast as a positive value that aligns with appraisal respect.

This distinct conceptualisation is borne out most clearly in how the Supreme Court correlates tolerance—and respect—directly to India's positive conception of secularism. In SR Bommai, the Court characterises ‘religious tolerance’ as ‘an essential part of secularism enshrined in our Constitution’.Footnote ⁹³ Importantly, the Court has said the same about respect: ‘[o]ur concept of secularism … is that … [t]he State shall treat all religions … with equal respect’.Footnote ⁹⁴ At the same time, the Court has been fairly consistent in rejecting what it perceives to be the American conception of secularism, based on neutrality and a ‘wall of separation’.Footnote ⁹⁵ Instead, the Court accords secularism ‘a positive meaning’.Footnote ⁹⁶ Rajeev Bhargava calls this approach one of ‘principled distance’:

All this suggests that the Indian Supreme Court relies on a distinctly positive conception of tolerance, which aligns with the idea of equal respect to inform the Constitution's positive secular stance towards religion. Ironically, however, this distinct notion of tolerance has enabled interpretive moves that ultimately undermine the Constitution's ‘benign’ stance towards religion. As will be explained in Section IV, tolerance has become a powerful tool in the Indian Supreme Court's efforts to (re)shape religion through the essential practices doctrine.

B. The Israeli Supreme Court: Committed to Tolerance

Whereas India is a secular State, the same can hardly be said of Israel. The constitutional identity of Israel is, instead, that of both a democratic and a Jewish State.Footnote ⁹⁸ A central feature of Israeli constitutionalism is persistent debate on how to interpret and reconcile its ‘dual normative commitment’ to Jewish and democratic values.Footnote ⁹⁹ Some constitutional scholars emphasise the ‘tension which arises from the definition of Israel as both a Jewish and a democratic state, two principles that apparently contradict one another’.Footnote ¹⁰⁰ Gideon Sapir and Daniel Statman, for instance, highlight the clash between both values when they point out that ‘promoting the Jewish nature of the state … necessarily includes the promotion of the Jewish religion … over other religions’.Footnote ¹⁰¹ This, however, appears to rely on a particular understanding of ‘a Jewish state’ as equivalent with a theological State (ie. a halakhic State). Ruth Gavison, by contrast, has argued that ‘the idea(l) of a state both Jewish and democratic, is – under some conceptions – both coherent and feasible’.Footnote ¹⁰² On Gavison's argument, understanding ‘a Jewish state’ as the State in which the Jewish people exercise their right to self-determination (that is, a nation State) is compatible with a thin conception of democracy that includes some political rights (such as the right to vote and freedom of expression) but not all human rights.Footnote ¹⁰³ A constitutional commitment to liberal democracy is, on Gavison's argument, ill-advised in Israel, since uniting all segments of the divided society ‘will be made much more difficult if we add to the definition of democracy notions such as liberalism’.Footnote ¹⁰⁴

Nevertheless, as Suzie Navot explains, the Supreme Court insists ‘that “Jewish” and “democratic” are compatible as constitutional characteristics’,Footnote ¹⁰⁵ even under a thicker understanding of liberal democracy that encompasses a full register of human rights. Indeed, in United Mizrahi Bank, the case in which the Supreme Court established its powers of strong judicial review of legislation, Justice Shamgar emphasised the integration of Jewish and democratic values,Footnote ¹⁰⁶ while Justice Barak anticipated that solving the clash between both values would occupy the Court greatly in the future.Footnote ¹⁰⁷ Navot argues that the Supreme Court ‘has been particularly cautious’ in adjudicating cases in which the Jewish and democratic nature of Israel appear to be in tension.Footnote ¹⁰⁸ In such cases, many of which pertain to issues of law and religion, the Court has ‘attempt[ed] to bridge the gap and find compromises between’ the Jewish and democratic values of Israeli constitutionalism.Footnote ¹⁰⁹ Thus, in Shavit, Justice Barak stated that ‘[o]nly the attempt to find a synthesis between the conflicting values will allow society to function [since] a rigid ruling that leaves no room for compromise … is a recipe for societal division and disintegration’.Footnote ¹¹⁰ As we will see shortly, the value of tolerance plays an important role in legitimating this constitutional search for compromise solutions.

Theoretically, we might expect the majority status of Jews in Israeli society, which translates into their ‘dominance in all fields of public life’, to obstruct compromise solutions in the name of tolerance.Footnote ¹¹¹ We might be tempted to assume that the permission conception of tolerance—in which the Jewish majority would extend tolerance to subordinated minorities by way of grace—garners particular traction in Israel. But contrary to the broader political context—in which ethnicity plays a central roleFootnote ¹¹²—Israeli constitutional law appears to live up to the promise of moving beyond the permission conception of tolerance in responding to religious diversity. One manifestation is that the deepest religious cleavage in Israeli society is not between the Jewish majority and the Muslim and Christian minorities, but between Ultra-Orthodox Jews and secular Jews.Footnote ¹¹³ This cleavage was once subdued by a particular approach to reasonable disagreement on the place of Judaism in public life: the ‘status quo model’.Footnote ¹¹⁴ On this model, Daphne Barak-Erez explains, the aim was to preserve ‘an existing status quo that acknowledges the priority of religious demands in some areas in a way that reflects a social-political compromise rather than a principled decision-making’.Footnote ¹¹⁵

Although the status quo model itself has been steadily eroding,Footnote ¹¹⁶ a search for compromise solutions continues to undergird the Israeli Supreme Court's approach to religious controversies. Rather than immediately truncate religious disputes, the Court tends to nudge parties to find an amicable solution.Footnote ¹¹⁷ ‘Social consensus, based on compromise, is by far preferable to an imposed judicial decision’, the Court has repeatedly held.Footnote ¹¹⁸ The ‘hope’Footnote ¹¹⁹ of the Court is that parties will find a ‘social solution’, ‘based on mutual tolerance’,Footnote ¹²⁰ thereby avoiding the need for a ‘legal solution’.Footnote ¹²¹ The idea, in other words, is that the moral virtue of tolerance will propel parties to a religious dispute towards a compromise, thereby avoiding the need for (constitutional) litigation.

Even when the Court sees no option but to truncate the religious dispute itself, it often settles on a compromise solution in the name of tolerance.Footnote ¹²² As Justice Barak held in Shavit, a case on the use of non-Hebrew characters and dates on gravestones in a Jewish cemetery, ‘[i]t is appropriate that the legal ruling should reflect, as much as possible, the spirit of compromise and tolerance, since only through these principles can the unity of society be preserved’.Footnote ¹²³ Justice Barak, and Justice Shamgar before him, have been key figures in Israel's constitutional tolerance-narrative. Horev is arguably the defining judgment.Footnote ¹²⁴ In Horev, building on what Shamgar had said earlier in Universal City Studios,Footnote ¹²⁵ Barak notes that ‘the principle of tolerance [is] a basic tenet of democratic theory, vital to a pluralistic democracy’.Footnote ¹²⁶ Barak further builds on his own concurring opinion in Universal City Studios to perfect the Israeli Supreme Court's ‘threshold of tolerance’ doctrine.Footnote ¹²⁷ This doctrine provides the answer, says Barak in Horev, to the following question: ‘How do we resolve the complications flowing from the fact that tolerance … simultaneously justifies both protecting rights and infringing them?’Footnote ¹²⁸ The answer: by searching for compromise solutions to religious disputes. Section IV unpacks the implications of this intertwining of tolerance and compromises for the constitutional interpretation of religious freedom in Israel.

C. The US Supreme Court: Contrasting Attitudes under Both Religion Clauses

Compared to Israel and India, the conceptualisation of tolerance and respect in US constitutional law is more difficult to identify. Another register of language—that of neutrality, coercion, separation, endorsement and accommodation—has partly displaced the language of tolerance and respect in US constitutional discourse on religion. The latter notions, however, arguably remain foundational to a proper understanding of the First Amendment to the US Constitution. The Supreme Court has for instance noted that ‘[a]lmost 200 years after the First Amendment was drafted, tolerance and respect for all religions still set us apart from most other countries’,Footnote ¹²⁹ clarified that ‘[t]he whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views’,Footnote ¹³⁰ and indicated that ‘[m]anifesting a purpose to favor one faith over another … clashes with … a religious tolerance that respects the religious views of all citizens’.Footnote ¹³¹

The historical record also supports the claim that tolerance and respect are key to understanding the Religion Clauses of the First Amendment.Footnote ¹³² The converse of one of these notions—intolerance—was of course central to the emergence of what is now the United States. Many of the early settlers were escaping religious persecution in pre-toleration Europe.Footnote ¹³³ But ironically, most of the newly founded colonies continued to engage in practices of establishment and treat adherents to other faiths with intolerance.Footnote ¹³⁴ Gradually, however, practices of toleration began to emerge.Footnote ¹³⁵ These practices culminated in the adoption of the Religion Clauses, which brought about the ‘tolerance and respect for all religions’ that is said to mark the present-day United States.Footnote ¹³⁶

Because the American trajectory included first-hand experience with the persecution that attended establishment in England,Footnote ¹³⁷ its constitutional history of tolerance diverges from the Lockean path towards the permission conception of tolerance.Footnote ¹³⁸ Some of the founding figures of the US Constitution, most notably Thomas Jefferson, did adopt the Lockean argument for religious toleration.Footnote ¹³⁹ But others followed a different route. As David Richards argues,

Appreciating the ways in which some of the founding figures departed from Locke is thus key to understanding the distinct American approach to religious liberty.Footnote ¹⁴¹ Madison—‘the primary architect of [the] First Amendment’Footnote ¹⁴²—was the central counter-figure to the Lockean-inspired Jefferson. When George Mason drafted the Virginia Declaration of Rights to read that ‘all men should enjoy the fullest toleration in the exercise of religion’,Footnote ¹⁴³ Madison objected, insisting that the term ‘toleration’ be removed.Footnote ¹⁴⁴ He objected, because to him the notion of toleration suggested legislative grace,Footnote ¹⁴⁵ ‘as if it were by the blessing of the majority that the minority was not persecuted’.Footnote ¹⁴⁶ A similar rejection of tolerance is evident in George Washington's letter to the Jewish congregation at Newport, in which he famously noted that ‘[i]t is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights’.Footnote ¹⁴⁷ The historical record, in short, shows that a distinctive debate on the role of tolerance surrounded the adoption of the Religion Clauses of the First Amendment.Footnote ¹⁴⁸ Moving across time towards the present day, however, a complication emerges: the possibility of diverging tracks of constitutional interpretation under both Religion Clauses. In what follows, it is shown that the Supreme Court's interpretation of the Establishment Clause is respect-based, whereas its understanding of the Free Exercise Clause is (or remains) tolerance-based.

A. The United States: Legislative Efforts to Bring Respect Back In

In its interpretation of the Free Exercise Clause, we saw, the US Supreme Court has shifted from a permission conception of tolerance to appraisal respect, and back again. Along with this shifting position, the scope of the constitutional right to religious freedom broadened and narrowed until Smith closed the constitutional door on religious exemptions. Yet, in Smith the Supreme Court did not consider exemptions to be wholly unwarranted. Rather, it did not find them to be constitutionally required. In other words, the Supreme Court left the decision to grant exemptions to the legislature, while anticipating that minority religions would struggle to find favour in this political arena.Footnote ¹⁸³

In a sense, the Smith ruling knowingly surrendered minority religious practices to the kind of legislative grace that was so vigorously opposed by James Madison. But Congress and state legislatures have disagreed with the Court. Various US legislatures have sought to legislatively restore the respect-based, pre-Smith case law of the Supreme Court.Footnote ¹⁸⁴ They have done so by enacting the Religious Freedom Restoration Act (RFRA) and, following RFRA's being partially struck down in Flores,Footnote ¹⁸⁵ State-level RFRAs and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RFRA prohibits the federal government from ‘substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability’, unless a Sherbert-style compelling interest test is met.Footnote ¹⁸⁶ RLUIPA does the same for ‘the religious exercise of a person [such as a prisoner] residing in or confined to an institution’, both at federal and state level.Footnote ¹⁸⁷ Both pieces of legislation have reinstated religious exemptions, albeit at the sub-constitutional level.Footnote ¹⁸⁸

Although Smith's tolerance-based rejection of exemptions under the Free Exercise Clause still stands, there are some indications that RFRA and RLUIPA have nudged the Supreme Court back to a more respect-based understanding of the free exercise of religion. This was already evident in Cutter and Hobby Lobby and has been confirmed more recently in Masterpiece Cakeshop. In upholding the constitutionality of RLUIPA in Cutter, the Court noted in obiter that ‘the Free Exercise Clause … requires government respect for … the religious beliefs and practices of our Nation's people’.Footnote ¹⁸⁹ In Hobby Lobby, the Supreme Court applied RFRA to ‘closely held’Footnote ¹⁹⁰ religious corporations who claimed to be burdened by the Affordable Care Act's contraception mandate. In finding for the claimants, the Court ruled that a less restrictive alternative was available that ‘achieves all of the Government's aims while providing greater respect for religious liberty’.Footnote ¹⁹¹ In Masterpiece Cakeshop, finally, the Court held that religious beliefs should be treated with tolerance and respect.Footnote ¹⁹² Under the influence of legislative efforts, then, it seems that the notion of respect might be regaining a foothold in the Supreme Court's understanding of the Free Exercise Clause.Footnote ¹⁹³

Yet, the impact of a respect-based understanding of the Religion Clauses is not necessarily positive. According to certain political philosophers, appraisal respect for religious difference is to be preferred over bare tolerance thereof.Footnote ¹⁹⁴ But this is arguably only true if respect is meted out equally. Hence Martha Nussbaum's insistence on equal respect. Based on the recent docket of the US Supreme Court, however, there are indications that majoritarian Christian denominations are benefitting disproportionately from the Supreme Court's reliance on respect for religion.Footnote ¹⁹⁵Hobby Lobby notoriously upheld the claims of Christian ‘closely held’ corporations and Masterpiece Cakeshop did the same (even if ‘only’ on procedural grounds) for a Christian baker who refused to serve a same-sex couple.Footnote ¹⁹⁶ Similarly, in American Legion and earlier Establishment Clause cases (including Lynch and Van Orden v Perry), the Court upheld the constitutionality of Christian symbols by secularising their religious meaning and/or emphasising their ‘passive’ nature.Footnote ¹⁹⁷

A pro-Christian bias thus seems to have crept into the Court's case law, along with the notion of respect. Justices Ginsburg and Sotomayor have a point when they argue in dissent in American Legion that displaying a Latin cross on public land ‘elevates Christianity over other faiths’ and ‘conveys a message of exclusion’.Footnote ¹⁹⁸ Richard Schragger and Micah Schwartzman have similarly posited that American Legion entails an ‘inversion of the Establishment Clause’ under which ‘the Court has … opened the way toward Christian preferentialism’.Footnote ¹⁹⁹ Even before American Legion, Christian Joppke claimed that a majority of Supreme Court Justices are pandering to the conservative ‘Christian Right’ by reinterpreting the Establishment Clause to be more accommodating of religious (predominantly Christian) displays in public.Footnote ²⁰⁰ It is tempting to relate these pro-Christian elements in the Supreme Court's case law to the ongoing process of (alleged) democratic erosion in the United States, as pursued—or instigated—by Donald Trump's brand of right-wing and ethno-nationalist populism (as evident in, among others, his ‘Muslim travel ban’, at least the first and second iteration of which overtly targeted Muslims). Yet, even in the wake of Trump v Hawaii,Footnote ²⁰¹ such conclusions would disregard the fact that the (seeming) pro-Christian bias in the Court's case law is part of a constitutional interpretive process that predates Trump's election.Footnote ²⁰²

B. Israel: The Delineating Effect of the Threshold of Tolerance Doctrine

Shlomo Fischer has argued that Israel utilises a model of tolerance that differs dramatically from the Protestant, American conceptualisation of tolerance.Footnote ²⁰³ The divergence rests chiefly, Fischer posits, in an inversion of the public–private divide.Footnote ²⁰⁴ On the American Protestant model, tolerance aims to protect religious liberty by relegating it to the private realm, as evidenced by the tolerance-based Smith ruling. On the Israeli model, conversely, tolerance is used as a tool to navigate the tensions that accompany the public presence of Judaism. This is espoused in Justice Joubran's holding in Ragen that ‘the value of tolerance’ should guide the Supreme Court on ‘fraught issues’ of religious diversity.Footnote ²⁰⁵ Justice Joubran refers, here, to horizontal tolerance, which ‘requires [an] individual to come to terms with opinions and cultural customs … even if he perceives [them] to be outrageous, abhorrent and negative’.Footnote ²⁰⁶

In other words, whereas the US Supreme Court resorted to the most pernicious mode of tolerance—the permission conception—in Smith, its Israeli counterpart relies on a more constructive view of tolerance. By emphasising the importance of mutual tolerance in Israel's pluralistic society, the Israeli Supreme Court aims to secure compromise solutions to divisive religious disputes.Footnote ²⁰⁷ ‘Tolerance is essentially the rejection of the “all or nothing” approach’, Justice Barak has noted, ‘and [supports] the promotion of mutual compromise’ instead.Footnote ²⁰⁸ Barak moreover considered it the Supreme Court's constitutional task to reach for tolerance-based compromises: ‘[i]t is appropriate that the legal ruling should reflect … the spirit of compromise and tolerance’.Footnote ²⁰⁹

The constitutional link between tolerance and compromise is evident in the Supreme Court's proposed solution to the (in)famous case on coerced gender segregation on mehadrin (‘meticulous’) bus lines. In Ragen, the Court ruled that coercive segregation could not be tolerated.Footnote ²¹⁰ At the same time, however, the Court indicated that there was ‘no legal impediment to allowing’ voluntary gender segregation on buses.Footnote ²¹¹ ‘[I]t is even possible’, the Court continued, ‘that we must try to help’ those who wish to voluntarily practise gender segregation, out of ‘consideration [for their] religious needs and beliefs’.Footnote ²¹² In Ragen, the Supreme Court thus hinted at the need for pragmatic compromises in the face of the divisive presence of religion in Israeli public life.Footnote ²¹³

As indicated in Section III, the importance of compromises in Israeli constitutional law and religion is predicated on the idea that ‘compromise is required by the values of the State of Israel as a Jewish and democratic state’.Footnote ²¹⁴ ‘Tolerance’, in turn, ‘is among Israel's values as a democratic state [and] as a Jewish state’.Footnote ²¹⁵ A primary function of tolerance in Israeli constitutional law, then, is to enable compromise solutions: ‘tolerance serves as a measure for striking the proper balance between various clashing values’.Footnote ²¹⁶ But concrete balancing exercises also reveal the limits of tolerance, which ‘delineate the multicultural “playing field”’.Footnote ²¹⁷ Coercive gender segregation on buses is ‘outside the multicultural playing field’,Footnote ²¹⁸ but voluntary segregation may remain within it. Voluntary segregation can, in other words, be constitutionally tolerated.

In linking tolerance to a constitutional search for pragmatic compromises, the Israeli Supreme Court diverges from the US Supreme Court. The latter principallyFootnote ²¹⁹ excludes religious exemptions from the scope of the Free Exercise Clause, in pursuit of the permission conception of tolerance. An analogous interpretation of religious freedom appears inconceivable under the Israeli Court's compromise-based approach.Footnote ²²⁰ Yet in other ways, the Israeli Court has also circumscribed the scope of the constitutional right to freedom of religion, in pursuit of its own conception of tolerance.Footnote ²²¹

The Israeli Supreme Court has specifically limited the scope of religious freedom in its case law on religious feelings, which spans a wide range of issues, including broadcasting of films,Footnote ²²² car traffic on the Sabbath,Footnote ²²³ use of non-Hebrew in Jewish cemeteries,Footnote ²²⁴ and the sale of pig meat.Footnote ²²⁵ In this specific area of its case law, the Supreme Court has translated the constitutional concern for compromise solutions into a doctrinal tool: the ‘threshold of tolerance’ test. The Court has held that ‘a society whose values are Jewish and democratic protects … religious feelings’.Footnote ²²⁶ This protection of religious feelings, however, raises the spectre of conflict with other rights. ‘[T]olerance’, the Court has acknowledged, ‘simultaneously justifies both protecting rights and infringing them.’Footnote ²²⁷ To reconcile the competing demands of tolerance, the Court has formulated a threshold of tolerance test. This test is predicated on the idea that citizens must ‘absorb’ a certain level of offensiveness ‘as part of the social contract’.Footnote ²²⁸ Only if the threshold of tolerance is exceeded, does protection of religious feelings justify interference with human rights.Footnote ²²⁹

But the threshold of tolerance doctrine is—by design—skewed against religious feelings. Under the doctrine, the Israeli Supreme Court does not engage in ‘horizontal balancing’, in which two clashing rights or two competing public interests enter a balancing exercise on equal footing.Footnote ²³⁰ Instead, the Court resorts to ‘vertical balancing’, in which the competing right (for instance freedom of expression) prevails ‘unless the violation of religious feelings is nearly certain and their violation is real and severe’.Footnote ²³¹ That is, religious feelings only ‘trump’ human rights when offence goes ‘beyond the tolerable threshold of Israeli society’.Footnote ²³² The bar is thus set very high.

The Court's reason for setting it so high relates to the constitutional status of religious feelings. The Court principally excludes such feelings from the scope of the constitutional right to freedom of religion. Instead, it equates them to a public interest.Footnote ²³³ And as a public interest, religious feelings are principally subordinated to constitutional rights.Footnote ²³⁴ Like any other public interest, they can overcome this principled subordination, but only when a high threshold has been exceeded. The constitutional threshold of tolerance doctrine is thus, for better or worse, stacked against religious feelings.Footnote ²³⁵

Solodkin illustrates how all of this plays out in practice. In Solodkin, the Supreme Court was confronted with deeply divisive bans on the sale of pig meat in Israeli cities.Footnote ²³⁶ As the judgment explains, consumption of pig meat traditionally elicits profound disgust in many Jews, both for religious and national-identity reasons.Footnote ²³⁷ Yet bans on the sale of pig meat have become increasingly controversial since the 1990s, when a large number of Jewish immigrants from former Soviet Union republics arrived in Israel.Footnote ²³⁸ These immigrants—and a growing number of secular Jews—were habituated to eating pig meat, whereas many other Jews (both religious and secular) continued to find consumption of pigs disgusting.Footnote ²³⁹ This constellation made Solodkin a particularly hard case for tolerance to emerge from. The Supreme Court nevertheless ruled that municipal authorities should aim for compromise solutions in regulating the sale of pig meat.Footnote ²⁴⁰

The judgment's famous scenario of the three villages (A, B and C) is particularly instructive. Running through the scenario, the Supreme Court applies its threshold of tolerance doctrine to three hypothetical settings: a village composed entirely of residents who oppose the sale of pig meat (village A), a village composed entirely of residents who wish to eat pig meat (village B), and a village of mixed inhabitants (village C).Footnote ²⁴¹ The Court finds that tolerance is not at issue in village A, since all its inhabitants agree on banning the sale of pig meat. Municipal authorities in A-like villages can thus prohibit the sale of pig meat without violating the constitutional framework. But in village B, the Court holds, the sale of pig meat should be allowed. Here, an issue of tolerance does arise, in that inhabitants of nearby villages of the A variety might object to the sale of pig meat in an adjacent village of the B variety. But the Court argues that this ‘injury does not exceed the “tolerance level”’, because the harm is geographically removed from the objectors.Footnote ²⁴²

The most interesting of the three scenarios in Solodkin is, of course, that of Village C. Here, the challenges of mutual tolerance play out in full force. Under the threshold of tolerance doctrine, the Supreme Court nevertheless settles on a pragmatic compromise. It rules that it is open to municipal authorities in C-like villages to consider the sale of pig meat in their village to exceed ‘the “level of tolerance” that every resident ought to tolerate as a part of his living in that place’.Footnote ²⁴³ Acknowledging the harm to the religious feelings of those disgusted by the consumption of pig meat thus justifies banning its sale in C-like villages. But the Court also finds that inhabitants of C-like villages who wish to eat pig meat should have access to it. The Court specifically notes that they should be able to purchase products in the outskirts of their own village or in a neighbouring B-like village.Footnote ²⁴⁴ In the final analysis, then, Solodkin suggests that exclusion of religious feelings from the scope of religious freedom need not preclude the kinds of pragmatic compromises that otherwise mark the Israeli constitutional conception of tolerance.

Not everyone agrees, however, that the Supreme Court has succeeded in finding pragmatic compromises that secure an adequate balance between Israel's constitutional values as a Jewish State and a (liberal-)democratic State.Footnote ²⁴⁵ In the political realm, conservatives have perceived the ‘activist’ Supreme Court as paying lip service to both values, while in fact giving primacy to liberal values over Jewish values.Footnote ²⁴⁶ Under subsequent Benjamin Netanyahu-led governments, this has resulted in a series of counterbalancing measures, which Yaniv Roznai describes as a ‘counterrevolution’ to the constitutional revolution initiated by the Supreme Court in United Mizrahi Bank.Footnote ²⁴⁷ These countermeasures include the recent appointment of conservative justices to the Supreme Court,Footnote ²⁴⁸ adoption of Basic Law: Israel—The Nation State of the Jewish People (to shift the constitutional balance (back) in the direction of the Jewish nature of the State in the sense intended by Ruth Gavison,Footnote ²⁴⁹ that is as the nation State of the Jewish People),Footnote ²⁵⁰ and the tabling of a Bill for Basic Law: Legislation (which would, among others, introduce an override clause and a non-justiciability clause to prevent the Supreme Court from reviewing Basic Laws).Footnote ²⁵¹

These developments have prompted debate on whether Israel is affected by democratic erosion and constitutional retrogression. Some Israeli scholars argue that the above measures signal ‘incremental erosion of Israel's strong democratic institutions’,Footnote ²⁵² indicate that Israel is ‘in the developing stages of constitutional capture’,Footnote ²⁵³ or even that ‘Israel is already in a constitutional crisis’.Footnote ²⁵⁴ Other scholars, however, dispute the claim ‘that Israel has already slid into a process of “constitutional capture”’,Footnote ²⁵⁵ or even argue that the recent countermeasures ‘constitute a generally legitimate democratic response by one side of the political map in Israel—the Right—to its relative weakness in several public spheres’.Footnote ²⁵⁶

Since the primary concern here is with constitutional interpretation of religious freedom in this article, it is not my intention to take a stand on either side of the ‘constitutional capture’ debate. Rather, it is interesting to note how (alleged and variable) processes of democratic erosion and constitutional retrogression link the three studied jurisdictions together. As in the United States, the Israeli ‘constitutional capture’ debate responds to the implications of (religiously) conservative populism in the executive branch of government. And similarly to India, as we will see shortly, the Israeli debate centres around an ethno-religious nationalist State-formation project. But in India, contrary to in Israel, the nationalist executive has found a powerful (if possibly unwitting) ally in the Supreme Court to further their ethno-religious agenda. In the next sub-section, it is argued that a distortion of the Supreme Court's positive conception of tolerance into an instrument of power has been instrumental in facilitating this synergy between both branches of government.

C. India: The Power of Tolerance to Constitutionally Redefine Religion

Both the US and Israeli Supreme Court have, as we have seen, restricted the scope of religious freedom in pursuit of their respective conceptions of tolerance. Neither court, however, has gone so far as to limit the scope of religion itself. Quite the opposite, the US Supreme Court is adamant that it is not a constitutional court's business to define or interpret religion.Footnote ²⁵⁷ Its Indian counterpart, however, does not share that position. Through its essential practices doctrine, the Indian Supreme Court is more than willing to (re)interpret and (re)define religion. This distinctive approach results in a more drastic delineation of the constitutional right to religious freedom in India than in Israel or the United States. Ironically, a distorted version of the Indian Court's positive conception of tolerance has been instrumental in facilitating this interpretive move.

The Supreme Court's conception of tolerance is devoid of the element of disapproval inherent in the prevailing conceptions in American and Israeli constitutional law. Instead, in Indian constitutional law tolerance aligns with the positive lens of respect to generate a benign constitutional environment for religious freedom.Footnote ²⁵⁸ But this benign stance comes with a catch. To preserve its understanding of the secular constitutional framework, the Indian Supreme Court has—unlike its Israeli and American counterparts—become heavily invested in (re)defining religion. Whenever religious practices contradict secular values, they cannot—on the Indian Court's understanding of the secular constitutional framework—be part of religion. The alternative would jeopardise the Court's conception of religion as an unambiguously good thing that aligns entirely with the Constitution's secular values.Footnote ²⁵⁹ In its drive to preserve the (romantic) moral goodness of religion and its (fictional) constitutional alignment with secularism, the Court regularly casts out pernicious religious practices from the scope of religious freedom.Footnote ²⁶⁰ It does this by applying the ‘essential practices doctrine’.Footnote ²⁶¹ On this doctrine, only practices that are essential to a religion, as ultimately defined by the Court itself, are worthy of constitutional protection.Footnote ²⁶²

Initially, the essential practices doctrine aimed to ‘ameliorate’ Hinduism, especially in relation to abolition of the caste system and opening up access to temples.Footnote ²⁶³ But more recently, the doctrine appears to have become a tool to curb Muslim minority religious practices, in particular. In its early freedom of religion case law, the Indian Supreme Court already restricted constitutional protection to the ‘essential part’ of religion.Footnote ²⁶⁴ But importantly, the Court initially left the definition of ‘essential practices’ to religious denominations, because ‘no outside authority has any jurisdiction to interfere with their decision in such matters’.Footnote ²⁶⁵ The Court construed its judicial role as limited to assessing the reasonableness of government intrusions on religious freedom by conducting limitation-style analysis.Footnote ²⁶⁶ Under the influence of Justice Gajendragadkar's views, however, the Court gradually reserved for itself the power to define the essential practices of religion.

Justice Gajendragadkar initially struck a famous ‘note of caution’, which would revolutionise the Supreme Court's essential practices doctrine, in Durgah Committee.Footnote ²⁶⁷ There, he warned that ‘purely secular practices … clothed with a religious form’ may well make invalid claims for constitutional protection.Footnote ²⁶⁸ He also noted that nominally religious practices ‘may have sprung from merely superstitious beliefs’ and are in that sense ‘unessential accretions to religion itself’.Footnote ²⁶⁹ Genuine religious practices thus needed to be distinguished from secular practices and superstitious beliefs.Footnote ²⁷⁰ Whereas the delineation was originally left to religious authorities, in Tilkayat Shri Govindlalji Justice Gajendragadkar insisted that the Supreme Court should bear the burden of deciding what counts as an essential practice of religion.Footnote ²⁷¹ ‘The question will always have to be decided by the Court’, he held, ‘because the community might speak with more than one voice’ and would thus fail to come up with an unequivocal answer.Footnote ²⁷²

This shift in the Indian Supreme Court's understanding of the essential practices doctrine should be read in the context of a ‘transformative’Footnote ²⁷³ Indian Constitution. Article 25(2) of the Constitution grants the Indian State the power to regulate ‘secular activity which may be associated with religious practice’ and to provide for social welfare and reform (including by removing caste-based limitations on entry to Hindu temples).Footnote ²⁷⁴ Although nothing precludes the Supreme Court from incorporating these powers in limitation-style analysis under Article 25(1),Footnote ²⁷⁵ the Court has opted to pursue a different path under the revised essential practices doctrine.Footnote ²⁷⁶ To achieve the social reform ambitions of the secular Constitution, in Sastri Yagnapurushadji the Supreme Court for instance rejected a Hindu sect's claim for separate status as a religious denomination distinct from Hinduism as ‘entirely misconceived’, to prevent the sect from acting upon its ‘apprehension … founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion’ to let other Hindus access its temple.Footnote ²⁷⁷ More recently, in the Sabarimala Footnote ²⁷⁸ case on access of women to the Lord Ayyappa Temple at Sabarimala, the Court held that the practice of excluding women aged 10 to 50 from accessing the temple was not an essential practice of Hindu religion and therefore did not merit constitutional protection.Footnote ²⁷⁹

Under the essential practices doctrine, the Supreme Court thus tends to reinterpret religious practices as non-essential to religion whenever the spectre of incompatibility with the secular values of the Constitution arises.Footnote ²⁸⁰ By so circumscribing the scope of religious freedom, the Court has ‘tried to sustain the happy illusion that a deep pluralism of comprehensive doctrines is compatible with the public purposes of a liberal state’.Footnote ²⁸¹ Although a search for perfect alignment of religion with the secular Constitution's aim of social reform explains the Court's interpretive move,Footnote ²⁸² it is important to recognise that tolerance has facilitated this interpretive move. In what follows, I will argue that India's distinctly positive conception of tolerance has gradually been distorted into an instrument of power, thereby enabling circumscription of religious freedom through the essential practices doctrine. The primary ‘victims’ of this distortion have been minority Hindu sects and, especially, Muslims.

Two contextual factors are relevant to the distortion. The first is a constitutional vision of the majority religion of Hinduism as distinctly tolerant. The Supreme Court has described Hinduism as a religion that ‘bred a spirit of tolerance’ and as ‘a tolerant faith [whose] tolerance … has enabled [other religions] to find shelter and support upon this land’.Footnote ²⁸³ Ronojoy Sen has explained that the Court's views on this point correspond, in historical perspective, to the inclusivist strand of reformist Hinduism, which ‘argued for Hinduism as a universal and tolerant religion’.Footnote ²⁸⁴ But, Sen has added, proponents of inclusivist Hinduism also ‘believed in the superiority of Hinduism’.Footnote ²⁸⁵

Here enters the second factor: the benevolent majoritarianism that underlies majority–minority religious relations in India. In SR Bommai, Justices Jeevan Reddy and Agrawal noted that ‘the Indian tradition of tolerance and fraternity’ inspired the creation of a secular State that would not stand minorities being treated as second-class citizens.Footnote ²⁸⁶ At the same time, however, they also found that ‘the dominant thinking appears to be that the majority community, Hindus, must be secular and thereby help the minorities to become secular’.Footnote ²⁸⁷ Rochana Bajpai has remarked, in this context, that the tolerance of the Hindu majority towards religious minorities is that of a

This ‘benevolent’ tolerance is positive, in the sense that it is devoid of disapproval. But it remains marked by the second component of tolerance: power. In this case the power of the older brother (Hinduism) to help his younger siblings (chiefly Islam) to become secular. Such exercise of power in the absence of disapproval has arguably enabled tolerance to justify the Supreme Court's interpretive moves in the (re)calibration of the essential practices doctrine.

We know, for instance, that Justice Gajendragadkar was part of the ‘progressive elites who desire[d] to use the power of the State to “bring about enormous changes” [in Indian society]’.Footnote ²⁸⁹ In this judicial project, he was ‘profoundly influenced by the Nehruvian vision of an “all-embracing and all-powerful Leviathan of state power and bureaucracy” radically transforming Indian society’.Footnote ²⁹⁰ By taking up the ‘Hobbesian mandate’,Footnote ²⁹¹ Justice Gajendragadkar and the Supreme Court with him have drawn on the power element inherent in tolerance to reshape the contours of the constitutional right to religious freedom.

Once the leviathan had been unleashed, however, it proved impossible to control. Later Justices seized upon Gajendragadkar's description of Hinduism as ‘a way of life’Footnote ²⁹² to (unwittingly) further the Hindutva conception of a homogenous Hinduism on which ‘Christians and Muslims [are constructed] as a threat to the Hindu nation’.Footnote ²⁹³ In a second major recalibration of the essential practices doctrine, the Indian Supreme Court has, Ratna Kapur explains, ‘construct[ed] a singular and unitary religion that has inadvertently aligned with the agenda of the Hindu Right and reinforced Hindu majoritarianism’.Footnote ²⁹⁴

In Ramesh Yeshwant Prabhoo, a bench of the Indian Supreme Court not only described the nationalist Hindutva belief as ‘a synonym of “Indianisation”, i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country’.Footnote ²⁹⁵ The bench also legitimated the Hindutva belief by describing it as ‘indicative … of a way of life of the Indian people’ rather than a religion.Footnote ²⁹⁶ As it was held not to be a religion, promoting Hindutva beliefs could not contravene electoral legislation, which bars candidates from appealing to religion during election campaigns.Footnote ²⁹⁷ Instead, the Court held, use of the words Hindutva and Hinduism should be understood to ‘promote secularism’ or ‘criticize the policy of any political party as discriminatory or intolerant’.Footnote ²⁹⁸ The Hindutva movement was thereby cast in the role of the tolerant party promoting secularism against ‘intolerant’ political parties.

Here, the interplay between the Supreme Court's role as an (unwitting) enabler of Hindu-nationalist discourse, on the one hand, and the ongoing process of democratic retrogression in India, on the other, becomes particularly salient. Several commentators have pointed out that the Court's equating of the nationalist Hindutva ideology with a ‘way of life’ in the ‘Hindutva’ cases has ultimately contributed to electoral victories of Narendra Modi's Hindu-nationalist Bharatiya Janata Party (BJP), since the BJP could now openly advocate its Hindu-nationalist ideology in electoral campaigns without falling foul of the ban on appeals to religion for electoral purposes.Footnote ²⁹⁹

Following Modi's rise to power in 2014 (confirmed and strengthened during the 2019 elections), India has been described as being on a trajectory towards an ‘illiberal democracy’,Footnote ³⁰⁰ marked by ‘national-populism’Footnote ³⁰¹ and ‘executive aggrandizement’.Footnote ³⁰² The Modi government is pursuing a Hindu-nationalist State-formation project attended by exclusion of minorities, especially of Muslims.Footnote ³⁰³ To cite just one recent example,Footnote ³⁰⁴ in December 2019 the BJP-controlled Parliament passed the Citizenship (Amendment) Act 2019, which enables migrants ‘belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ who initially entered India without a valid permit to regularise their stay and apply for citizenship. The Act, however, does not cover Muslim migrants, who remain designated as ‘illegal migrants’ and can thus not claim citizenship.

Importantly, the Modi government's exclusionary project can draw on (potentially unwitting) historical support by the Supreme Court. As Kapur argues, in ‘a series of decisions … the Indian Supreme Court has endorsed the Hindu Right's majoritarian and homogenising understanding of religion’.Footnote ³⁰⁵ By contrast, minority religious practices that could have been the object of ‘benign’ and ‘benevolent’ tolerance, have instead been excluded from the scope of religious freedom as non-essential. Muslim minority practices, in particular, have suffered from this pernicious turn in the essential practices doctrine. The relevant cases often centre on divisive issues on which Hindu-nationalist interests are diametrically opposed to the interests of the Muslim minority (or segments thereof). Two such issues are discussed here.Footnote ³⁰⁶

One of the most divisive religious issues in India concerns the destruction of the Babri mosque in Ayodhya by Hindu nationalists in 1992. With the express support of the BJP, Hindu nationalists have claimed the disputed site as the birthplace of Lord Ram and aim to (re)construct a temple to this deity at the site.Footnote ³⁰⁷ In a series of cases, the Supreme Court has effectively ruled in favour of the Hindu-nationalist majority, thereby paving the way for the (re)building of the temple. In Ismail Faruqui, the Court rejected the claim that government acquisition of the site of the destroyed mosque had violated Muslims’ religious freedom. Although the Court could have dispensed with the case on other grounds, it did so by excluding prayer at a mosque from the very scope of religious freedom. In the name of tolerance and secularism,Footnote ³⁰⁸ the Court ruled that ‘[a] mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere’.Footnote ³⁰⁹ Once prayer at a mosque had been labelled a non-essential practice of Islam, the conclusion swiftly followed that acquisition of the mosque in exercise of the ‘sovereign or prerogative power of the State’ did not contravene the Constitution.Footnote ³¹⁰

In its 2019 ruling on the Ayodhya case, the Supreme Court definitively settled the religious dispute in favour of the Hindu-nationalists by upholding a petition submitted in the name of the Lord Ram himself.Footnote ³¹¹ The Court paid lip service to the values of tolerance and respect in its judgment, noting that ‘[t]olerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity [in the Indian constitutional framework]’.Footnote ³¹² In principle, this translates to a ‘solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value’.Footnote ³¹³ In practice, however, the 2019 ruling supports the Hindutva agenda by paving the way for (re)construction of a Hindu temple on the site.

A similarly divisive issue concerns the slaughter of cows. The sacred nature of the cow to (most) Hindus is reflected in the Indian Constitution. A non-justiciable Directive Principle in Article 48 of the Constitution enjoins the State to ‘take steps for … prohibiting the slaughter, of cows and calves’. As Arun Thiruvengadam explains, this Directive Principle ‘was originally inserted [in the Constitution] to appease Constituent Assembly members of a Hindu nationalist persuasion who had a specific commitment to cow protection’.Footnote ³¹⁴ Several Indian states, among which the state of Gujarat, have adopted an absolute ban on cow slaughter over the past couple of decades. The Supreme Court reviewed—and upheld—the Gujarat ban in Mirzapur Moti Kureshi.Footnote ³¹⁵ This ruling allows us to draw insightful contrasts to the Israeli tolerance-based approach. Whereas the Israeli Solodkin case deals with an animal—the pig—that provokes disgust among Jews, the Indian Mirzapur Moti Kureshi case focuses on another animal—the cow—that enjoys great reverence among Hindus.Footnote ³¹⁶ Yet both cases are also analogous in the sense that what is done to the animal—selling its meat in Israel, slaughtering it in India—elicits strong disapproval in powerful segments of society. This makes cow slaughter in India, much like the sale of pig meat in Israel, a difficult case for tolerance.Footnote ³¹⁷

Under the tolerance-based compromise solution favoured in the Israeli Solodkin judgment, an absolute ban such as the one in place in Gujarat would arguably not stand. The Israeli Supreme Court would likely consider it to impede the compromise required by the Israeli conception of tolerance. The Indian Supreme Court, however, upheld the absolute ban in Gujarat. In an obiter passage, the Court applied its essential practices doctrine to confirm that ‘[s]laughtering of cows on [the Muslim holy day of] BakrI'd is neither essential to nor necessarily required as part of the religious ceremony’.Footnote ³¹⁸ Immediately afterwards, the Court noted that ‘it is common knowledge that the cow and its progeny, i.e., bull, bullocks and calves are worshipped by Hindus’.Footnote ³¹⁹ It further held, in line with the Hindu-majoritarian argument, that it would be ‘an act of reprehensible ingratitude to condemn a cattle in its old age as useless and send it to a slaughter house taking away the little time from its natural life that it would have lived’.Footnote ³²⁰ In sharp contrast to the Israeli approach, the Indian Court thereby rejected the possibility of a compromise solution. Instead, as in other cases, the Court sided with the Hindu-majoritarian argument by finding a minority religious practice ‘optional’ and ‘not covered’ by the constitutional right to religious freedom.Footnote ³²¹ This has emboldened the Hindu-nationalist BJP to enact absolute bans on cattle slaughter in several other states.Footnote ³²² It is in these kinds of cases, then, that the pernicious distortion of India's conception of tolerance—benevolent in principle, but a majoritarian instrument of power in practice—bears its teeth.