The Oxford Handbook for Free Speech (Forthcoming)
18 Pages Posted: 24 Apr 2019
Date Written: April 23, 2019
The tensions between religion and freedom of expression are familiar to most modern democracies. As a wide-ranging system of moral beliefs and commitments – what John Rawls called a ‘comprehensive doctrine’ – religion, by its very nature, assigns to the freedom of expression a particular place in its hierarchical order of values. In non-theocratic States (to which this chapter limits itself), this may clash with the (higher) normative value accorded to the freedom of expression under the secular order. Moreover, religious claims themselves will often be made from within the constitutional system: that is, the State’s own constitutional commitment to protect religious freedom will be invoked to argue that, in certain domains, the secular order must defer to religion’s hierarchy of values. This may include – as this chapter shall discuss – the subordination of religious expression to revealed religious truth. Disputes will often also involve contestation over a constellation of other constitutional norms, such as the commitment to maintaining diversity and pluralism, the right to equality and cultural dissent, and not least, the imperatives of public order. Consequently, such disputes raise a host of complex issues. Depending upon the context, the State’s adjudicatory authorities must decide whether to attempt an accommodation between the conflicting claims of religion and free speech, or privilege one over the other.
The tension between religion and freedom of expression is not limited to open conflict. There are situations where the State is supportive of religious expression. The conflict here occurs between a perceived proximity between the State and religious speech on the one hand, and the State’s own claim to establish a public sphere where all citizens can participate equally regardless of religious affiliation. And lastly, sometimes the State can be over-zealous while pursuing the above endeavour, leading to a third kind of conflict: between the State and religious expression (the right to which, of course, is a subset of the freedom of expression).
In this chapter, I shall explore the topic of ‘religious speech’ in the context of these three frameworks. I shall begin with a brief recapitulation of the central importance of freedom of expression (focusing specifically on religious speech) to modern constitutional democracies (section I). I shall then discuss the role of religion in censorship – that is, censorship of religious (or irreligious) speech, which is often framed in the language of blasphemy, apostasy, or other variants of religious dissent (section II). I shall go on to discuss the constitutional issues that arise when the State chooses to sanction, endorse, or otherwise ally itself with religious speech by mandating, encouraging, or permitting (for example) religious instruction or religious symbols in State schools (section III). Lastly, I shall examine situations in which the State privileges other values over the right to (religious) expression, such as (for example) limiting invocations to religion in an election campaign, curtailing religious expression in public forums, or subordinating religious expression to anti-discrimination laws (section IV). I shall conclude with an argument that, despite the differences in context across the globe, issues around religious speech essentially come down to whether – and the extent to which – constitutional democracies are willing to support genuine pluralism and diversity in forms of life and expression (section V).
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