Michel Rosenfeld (Yeshiva University – Benjamin N. Cardozo School of Law) has posted Constitutional Justice for Minority Religions in Liberal Secular Democracies on SSRN. Here is the abstract:
Constitutional justice operates along three distinct dimensions of distributive justice: material redistribution; identity recognition; and democratic participation. Prior to the Enlightenment, minority religions, even if tolerated, were victims of many injustices given that the majority religion was officially endorsed and institutionalized throughout the realm under the principle of cujus regio eius religio. Liberal constitutional democracies originating in the age of the Enlightenment American and French revolutions, on the other hand, were grounded on a disentanglement between religion and the state under the ideal of institutional secularism (to be distinguished from ideological secularism). This ideal aims at separation between the state and religion as evinced by the Religion Clauses of the First Amendment. The two core requirements of institutional secularism are: accommodation of the greatest possible plurality of religions (and non-religious conceptions of the good) within the constitutional unit consistent with preservation of their peaceful coexistence within the polity; and, refraining from adopting laws or policies based on controverted metaphysical precepts embraced by some religions but rejected by proponents of other religions or by those committed to ideological secularism.
The ideal of institutional secularism has never come close to realization, but it has given rise to six different constitutional models capable of satisfying its two core requirements. These are: the militant secularist; the agnostic secularist; the confessional secularist; the official State religion with institutionalized tolerance for minority religions; the millet system; and the conflation one equating secularism with the majority religion. All these models produce identitarian based injustices to all religions subject to restraints within the constitutional order. Moreover, minority religions are likely to suffer greater injustices than majority ones. Pursuant to the hypothesis that the constitution is supposed to secure a minimum of justice, the “justice essentials” (leaving the rest to infra-constitutional dealings), the article examines the potentials and pitfalls of each of the six models. The article then proposes some categorical and some proportionality based criteria to better secure the justice essentials.
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