The contrast between the respective judgments of the Chamber and Grand Chamber of the European Court of Human Rights in Lautsi v Italy exposes an emerging fundamental distinction in religious human rights law. On the one hand there are those who insist that rights to religious liberty and equality only require the avoidance of concrete individual infringements. Human rights protect the interests of real individuals, and a certain threshold of interference with those interests must be reached before questions of State discretion, justification or violation arise. On the other hand there are those who argue that human rights have systemic implications for political institutional design. In this book, Temperman makes a sustained case for the latter position. Taking human rights to religious liberty and non-discrimination seriously requires us to recognize that certain institutional arrangements in the field of State—religion relations are incompatible with those rights. To put that another way, there is an emerging right to religiously neutral governance.
The book falls into two parts. In Part I (Chapters 2 to 6) Temperman engages in a wide-ranging comparative legal analysis of State—religion relations. He presents his readers with a spectrum of types, ranging from religious States, State religions and State churches, through various forms of State support and acknowledgment of religion, the accommodation of religions and non-identification, secularism and the separation of State and religion finally reaching secular State ideologies and negative identification by totalitarian anti-religious regimes. He clearly sympathizes with the view of other State—religion comparativists that there is, in fact, a continual circle, where the most extreme forms of anti-religious State are actually based on competing ideologies akin to strongly religious States.
Of particular value in this part of the book is a set of distinctions that Temperman proposes in the area of secularism and non-establishment. A State is constitutionally secular if it declares that it is not religious, is non-denominational, is not linked to any ideology or religious belief, or if it does not invoke religious justifications for its authority. This may be combined with the promotion of secularism as an atheist ideology, but not necessarily so, and is clearly distinguishable. Non-establishment is the refusal to privilege any specific religion. It is compatible with a range of forms of cooperation and interaction between the State and religion. In its American version, it represents a principle of separation which requires the recognition of mutual spheres of autonomy: protecting the State from religion and religion from the State. In some of its manifestations in the world today, separation may be one-sided only, perhaps reflecting a rejection of historic entanglements one way or the other.
Temperman is well aware of the difficulties of such typological exercises. Not only is reality messier, but there may be considerable mismatches between formal constitutional commitments and State practice. This is nicely handled not only in the context of formal commitments to separation (critically discussed at pp 133–36) but also in the fine discussion of symbolic acknowledgement through preambular invocations of God, historical influences, mottoes, flags and the like (pp 72–90). One wonders, however, whether the arrangement of material in this Part is still not too beholden to formal distinctions rather than being rooted in substantive State—religion relations. Why else would one distinguish ‘state supported religions’ (Chapter 3) from ‘state religions’ (Chapter 2)? Furthermore, the all-too-brief Chapter 4 places ‘non-identification’, which is a formal category, next to ‘accommodation’, which is a highly significant and wide-ranging substantive category encompassing a long history of the mutual shaping of the social and public roles of both religion and the State. Indeed, throughout this part there is little acknowledgement of the historical development of the State within various religious traditions. Rather, the State is treated as an atemporal given, which faces the ‘human rights problem’ of its relationship to religion.
Part II opens with a helpful account of the ambiguity of the travaux préparatoires on the question of whether religious human rights have structural implications. Here we find the lynchpin of Temperman's argument. It is not sufficient to focus only on the human right to religious liberty. ‘Establishment’ (now used loosely for a range of positive State—religion identifications) is both (by implication) in breach of non-discrimination rights and likely to cause breaches of those rights (p 165). This thesis is then developed in Chapters 8 to 11 by reference to a wide range of State–religion problems.
Chapter 8 makes the unsurprising case that State enforcement of religious laws breaches human rights. Temperman's targets here are traditional readings of Islamic and Jewish law which treat women as inferior beings, make conversion extremely costly and discriminate against people of other faiths. State support for such laws breaches the individual's freedom from religion and equality before the law, as well as requirements such as transparency and legal certainty.
Chapter 9 provides the reader with a good discussion of a range of other forms of State entanglement: inadequate formal guarantees of freedom of religion, conscientious objection, problems around identity cards, proselytism bans, religious taxes, religious holidays, blasphemy/defamation and religious group registration requirements. Again, the extent to which Temperman is seeking an optimal protection of religious equality becomes apparent in his consideration of ways to make State practice around weekly rest days and public holidays genuinely neutral. One wonders how realistic this sort of cultural purism is.
The final part of Chapter 9 addresses religious employment. Temperman acknowledges the difficulties around the application of human rights in the private sphere, but boldly claims that human rights give rise to a right of religious non-discrimination here as well. This permits the existence of genuine occupational requirements for specific posts, but not broader-based religious ethos exceptions to non-discrimination law. It leads him to argue that posts that are not intrinsically religious (eg secretaries, cleaners) may not be made subject to religious tests even in churches and other religious associations. By the same token, in Chapter 10, he argues that even private religious schools may only impose religious tests for those posts directly involved in teaching religion.
This is certainly a familiar position in domestic debates about the reach of religious non-discrimination laws, but it sits oddly with his recognition that public schools should not offer an ‘integrated’ educational programme and that religious parents may also have problems with biology, history, sex education and sport. Presumably, one of the purposes of allowing private religious-based education is to give parents the option of a religiously integrated education, and that would then tend in favour of ‘religious ethos’-type exceptions for religious schools. Chapter 10 also traces the difficulties with religious education opt-out clauses, favouring religiously neutral public education, and considering the possibility that there is an emerging State duty to provide children with neutral teaching about religions—regardless of parental choice.
In the light of his critique of religious ethos exemptions in employment and education, Temperman proves surprisingly open in his final substantive chapter to religious influences on political life. There are, of course, easy human rights arguments to be made against religious tests for the holding of public office and against religious oaths, as well as preferential forms of political representation. However, religious political parties should not be banned; moreover, States should not interfere with religious membership criteria of such parties (p 326), although gender or other discrimination on religious grounds should be prohibited. It is sufficient to have safeguards of State neutrality in place.
This openness to religious pluralism in the context of political parties contrasts strongly with Temperman's limited acceptance of pluralism in the educational and employment fields. Indeed, throughout the book, there is a suspicion of pluralist solutions (eg for church taxes) in favour of secularist ones, and there is some grounding for this argument. Temperman rightly points out that pluralist solutions tend to favour large established religions and disfavour new minorities. His concern to respect the right of individuals to construct their own understandings of religion leads him to be suspicious of collective identities not only at the State level but also on the part of non-state social groups. However, it has to be acknowledged that freedom of association plays a rather uneven role in this argument. If pluralist solutions are sub-optimal from the point of view of non-discrimination, secularist solutions may be sub-optimal from the point of view of religious associational liberty. Secularist solutions may require individuals unwillingly to confine their religion to certain predefined, ‘safe’ and largely private spaces. Thus Temperman's argument here depends heavily on the existence of some universal notion of the proper domain of the religious and the possibility of ‘non-religious’ exercises of social influence and power. That assumption is contentious, to say the least.
The structural-implications reading of human rights requires us to move from minimum standards of justice to optimal constitutional arrangements. Temperman's case that there is an emerging right to religiously neutral governance is meticulously researched and elegantly argued. However his view that there is such an optimum, and that it takes this form, is not nearly as straightforward as it seems.
