The Challenge of Strong Religion in the Liberal State

Abstract

Liberal states are struggling to find ways to deal with strong religion in a manner that would enable them to give due respect to the religious beliefs of citizens while adhering to core liberal values, such as respect for human rights and avoidance of undue entanglement of religious and state authority. One solution is granting authority and autonomy to private religious tribunals, for example, in the area of religious family law. Another solution is creating a direct link between state law and some religious obligations, as in the New York Get Laws (“NY Get Laws”). Some people have criticized these solutions as deviating from the pattern of religion-state relations suitable for the liberal state, while others have embraced them. This Article rejects the tendency to view these solutions as similar and claims that they differ in both the structure of religion-state relations that they advance and in their compatibility with human rights. It argues that only the latter solution, exemplified in the NY Get Laws, is a proper solution for the challenge of strong religion in a liberal state that aims to respect the rights of all, including weaker members of the community, such as women.

In order to clarify the important differences between the two solutions, in terms of both structure and rights, this Article employs a wide comparative perspective on religion-state relations, analyzing such relations in both liberal and non-liberal countries and offering a typology of three distinct approaches that states take towards religion – nationalization, authorization, and privatization. It assesses the advantages and disadvantages of these approaches in responding to the challenge of strong religion and their compatibility with liberal religion-state structure and with liberal human rights. It then employs this analysis to highlight the significant differences between the two solutions to the challenge of strong religion, rejecting the calls for the authorization of private religious tribunals and embracing the careful and conditional incorporation of religious considerations into civil law, as in the NY Get Laws. This Article argues that the latter is an appropriate and essential means for respecting both strong religion and liberal values since it enables the liberal state to acknowledge the importance of religious belief in people’s lives, while at the same time protecting the rights of all its citizens.

Keywords: Women's Rights, Religion-State Relations, Liberal states, Strong Religion