The Inexorability of Religion in the Public Sphere – Replacing Neutrality with Objectivity

Abstract

State sovereignty and the freedom of religious choice are closely linked, especially in contemporary constitutional states where the freedom of religion is constitutionally entrenched. Balancing state interests with religious demands is a perpetual problem. The state is founded upon the notion of sovereign coercive power, while religions lay claim to their version of transcendental truth. However, the state ignores religious considerations at the peril of committing injustice.

This paper surveys the implications of the inextricable historical and contemporary links between religion and the authority of the state. Maintaining public order while honouring the constitutional demands of religious freedom inevitably requires limiting religious expression, but how this is to be achieved justly is, ironically, complicated by the liberal foundations of constitutionalism. This is because, although constitutionalism is not a religion, its tenets express specific, religion-like views of the world.

In many liberal democracies, the courts and other organs of state justify the manner in which they deal with difficult religious matters by claiming to be religiously neutral. Neutrality in matters bearing profound ontological positions, such as the source of state authority and religious views that do not coincide with liberal democracy, is impossible, and therefore the claim of state neutrality is nothing other than an illusion.

Nevertheless, it is possible for a constitutional state to protect and defend religious freedom by approaching matters of religion objectively, as opposed to relying on illusory neutrality. How this can be achieved is suggested in this paper.