The July 14, 2006, issue of Commonweal carried an article by Michael J. Perry, entitled The Morality of Human Rights: A Problem for Nonbelievers?. In that article, as in his books The Idea of Human Rights: Four Inquiries, and Toward a Theory of Human Rights: Religion, Law, Courts, Perry argues that a plausible nonreligious foundation for the idea of human rights has yet to be articulated—that this idea, therefore, appears to be unavoidably religious. He expresses concern that “the growing marginalization of religious belief in many societies that have taken human rights seriously—in particular, in many liberal democracies… may leave those societies bereft of the intellectual resources to sustain the morality of human rights.”

Nicholas Wolterstorff shares Perry's judgment. “It is impossible to develop a secular account of human dignity adequate for grounding human rights. Or to speak more cautiously: given that, after many attempts, no one has succeeded in developing such an account, it seems unlikely that it can be done.”

This article comments on a definition of religion recently proffered by Brian Leiter. Leiters definition first appeared in a paper arguing that there is no principled reason for the Constitution to single out religion as one of many forms of conscience for special tolerance. Martha Nussbaum then suggested that we owe something more than mere tolerance for religious belief; in our efforts to make sense of the world, we owe “a special respect for the faculty in human beings in which they search for life's ultimate meaning.” In a later paper, Leiter uses the same definition of religion to argue that Nussbaum is wrong. My argument can be expressed positively: if Nussbaum is right, she is also right that the concept of religious belief (as opposed to particular conceptions or instantiations of it) is entitled to as much respect as any other kind of belief, because once we are talking about any kind of belief it is difficult to draw a principled line. Stated negatively, Leiter's attack is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that Leiter employs an appeal to common sense to distinguish religion and science under a bright line definition. Nevertheless, the very belief in common sense Leiter employs here is the same as the belief in religion Leiter attacks: it is categorical and insulated from further reasons.

The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.

The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts?

What does it mean for a religious belief to be true? This question has been the subject of a rich theological and philosophical debate stretching back thousands of years. But times change, and the answers appropriate for one epoch will cease to fit new ones. As long as people continue to care about their religions and their beliefs, the question must be continually posed and competing answers evaluated.

In the United States, facially theological questions quickly take on constitutional dimensions, thanks to the religion clauses of the First Amendment. Government interaction with religion is inevitable, and ongoing public debate about the proper scope and limits of that interaction is a familiar and necessary component of our constitutional order. The meaning of “free exercise of religion” and its infringement is the continuously evolving product of litigation, legislation, and regulation pursued by state and private actors against a backdrop of assumed—and often contested—constitutional constraints and constitutional ideals.

In New York City on March 18, 2005 Dr. Amina Wadud shocked the Muslim world when she led a mixed-gender congregation in the Friday prayer. The Friday congregational prayer is at the center of Muslim religiosity. On Friday mid-day, Muslims come together as a community and turn collectively toward God. The form of the prayer affirms the community's identity; Muslims pray as brothers and sisters equal before God. They stand in straight lines, shoulder to shoulder. No one has a reserved spot. The rich stand next to the poor.

In his recent encyclical Caritas in Veritate, Pope Benedict XVI grapples with one of the most vexing paradoxes concerning the current global economic crisis. There is no question that it is a global financial crisis. The collapse of the subprime mortgage loan market in the U.S. in 2007 prefigured similar collapses of real estate bubbles in other parts of the world. The collapse of these real estate bubbles exposed the degree of interconnectedness among financial institutions across the globe created by the worldwide market for the derivate investment products created on the backs of the underlying real estate loans—the mortgage-backed securities in all their complex manifestations, and the credit default swaps that were essentially insurance policies on the risks of default of these securities. Various configurations of international coordinating bodies have called for global responses to the crisis. At its root, however, the current crisis is in a very important sense fundamentally a uniquely local phenomenon. It is the result of individual consumer transactions that are about as inherently local as a commercial transaction can ever get—loans to specific individual consumers tied to specific unique, unmovable pieces of residential real estate. Every single loan packaged into the bundles of investment opportunities that became “toxic assets” held by large institutional investors originated with a contractual relationship between an individual borrower and a single lender. In addition to the global macroeconomic consequences of the collapse of this market, every one of these loans that goes into default has personal consequences for the individual borrower whose home is the collateral for that loan.

Western bookstores today are full of small boxes that advertise “Voodoo Revenge Kit” on the front. Their short descriptions encourage anyone who wishes to harm a cheating lover and curse a difficult boss to buy this product. Companies now sell t-shirts, mugs, buttons and key chains with “voodoo dolls,” and bound figures with needles through the heart. Novels, newspapers, and movies have, for over a century, produced representations of human sacrifice, cannibalism and devil worship as rituals central to the practice Obeah, Vodou and Santeria. U.S. televangelist Pat Robertson even remarked that the catastrophic earthquake in Haiti on January 12, 2010, was God's retribution on Haitians for practicing voodoo and making a “pact with the devil.” Remarkably, few people recognize that these depictions are, to a large degree, linked to slavery and racism, which continue to leave their stain on the past and present laws of American and Caribbean nations.

During the past fifteen years, the European Court of Human Rights has been engaging seriously with the freedom of religion and belief under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In many ways, the scope and ambition of the Court's jurisprudence has been breathtaking, especially when viewed from the United States; but many questions have begun to emerge about whether the Court has established an intellectual and conceptual architecture that is up to the task of dealing with the increasingly complex cases involving religious freedom that the Court is currently facing and will soon face. Accordingly, several sections of the Association of American Law Schools sponsored a program in January, 2010 entitled, “The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights: Legal, Moral, Political and Religious Perspectives.”

The Article 9 religious freedom jurisprudence of the European Court of Human Rights most basically concerns the question of religious pluralism. The “principle of pluralism seems to be the main—the core—principle” guiding the Court's religious freedom jurisprudence, argues one of the Court's judges. Assessing the Court's work in the area of religious freedom therefore requires considering its treatment of pluralism, which is the concept most often employed to interpret Article 9 of the European Convention on Human Rights. The Court's approach to religious pluralism is still heavily indebted to the decision in Kokkinakis v. Greece, a 1993 case involving a Jehovah's Witness who had been repeatedly arrested and jailed for violating Greece's prohibition on proselytism. In the majority opinion finding that Mr. Kokkinakis's Article 9 rights had been violated, the Court writes the following:

The European Court of Human Rights is currently considering several German cases on the autonomy of religious organizations or churches within secular German labor law and resulting conflict resolution issues that arise within religious communities. In the past, the European Court of Human Rights has consistently underlined the importance of church autonomy, relying on the European Convention of Human Rights and Fundamental Freedoms Article 9 guarantees of freedom of thought, conscience and religion:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Implementing these provisions in the context of religious autonomy, the Court has critically noted:

[T]he autonomous existence of religious communities is indispensable for pluralism in a democratic society and is, thus, an issue at the very heart of the protection which Article 9 affords.… The right [of religious communities] to an autonomous existence is at the very heart of the guarantees in Article 9.

The Evolution of Religious Freedom in the European Court of Human Rights

Article 9 of the European Convention on Human Rights, which protects religious freedom, looked for many decades as though it was going to be effectively a dead letter. The European Court of Human Rights (“the Court”) did not find a violation of Article 9 until the case of Kokkinakis v. Greece which was decided only seventeen years ago, in 1993. Even after that seminal decision, religious freedom cases were still relatively rare for several years; in 2001, there had been fewer than thirty Court cases on Article 9. However, in the last decade the case law has expanded significantly; and from 2001 to 2010 there have been more than sixty additional cases. Thus, in a relatively short period, the Court has been pushed to develop a jurisprudence of religious freedom to deal with increasingly complex and controversial cases. As the case law has multiplied and the issues have diversified, however, it has become clear that the Court has not yet developed a sufficiently coherent and principled approach to this area. So far, its approach has proved of very limited utility to individuals making claims of religious freedom.

This is not to suggest that the Court has played no role in the protection of religious freedom in Europe. Indeed, in recent years, it has arguably played an increasingly positive role, particularly in cases involving group religious rights. However, this jurisprudence has not translated into greater protection for religious individuals in many instances.

During the past five years, issues concerning the freedom of religion, and its relationship with the freedom of expression have received an ever higher profile in both the media and in political debate. The purpose of this article is to reflect on the approach taken by the European Court of Human Rights to some of the most significant of these issues. In a short article of this nature it is not possible to examine each of the issues in a comprehensive fashion, but by juxtaposing relatively brief overviews of these cases, some general insights regarding the current mood of the Court and the capacity of the Convention system to engage with ever more pressing issues will emerge. The main challenge appears to be the need to reconcile the Court's emphasis upon neutrality and impartiality, found in its more recent case law concerning state relations with religious associations, with the core value of respect, which has long dominated its approach in other areas. Its failure to address this challenge in an appropriate manner threatens the Court's ability to engage with emerging problems in a satisfactory fashion.