In a recent blogpost, Professor Hans-Martien ten Napel responds to my observation that there is a legal revolution underway against the place of religion in Western societies. He offers a thoughtful review of my dissertation and raises some interesting questions regarding the European context.
In my dissertation, The Legal Revolution Against the Accommodation of Religion: The Secular Age v the Sexular Age, I contend that historical, philosophical and practical considerations led the West to protect religious practices in order to maintain civil peace; religious accommodation, in turn, paved the way for other fundamental rights such as freedom of expression and freedom of assembly. Prof. ten Napel himself takes a similar position in his 2017 book, Constitutionalism, Democracy and Religious Freedom To be Fully Human, where he explains that Christian presuppositions made liberal democracy possible. He argues that “no legitimate liberal democracy is feasible without there being the type of protection of religious freedom offered by the right to freedom of religion or belief as it has historically developed” (at p. 7).
Thus, we both agree that to deny religious accommodation is to jeopardize the very health and functioning of democratic society – a serious prospect indeed! Yet, as I note in my dissertation, this is the revolutionary trajectory we are on. Even though the law grants exemptions for religious groups, the legal community is in the process of rejecting the law as unjust. As societal norms have changed, particularly with regards to sexuality, religion is no longer presumed to benefit society. The Trinity Western University law school case illustrates how a private religious institution’s claim for religious accommodation is increasingly seen by the legal community as seeking a “right to discriminate”.
In his blog post, Prof. ten Napel concurs with my “starting situation”, where “religion was considered valuable for politics and society”. He cites Tocqueville, who “considered religion an important condition for the functioning of public institutions in a democracy.” However, Prof. ten Napel’s conclusion is somewhat bleaker than my own, in that he believes “this revolution [against religion] has already taken place in America” and is now being met with a “conservative counter-revolution”. He cites Harvard law professor Mark Tushnet, who claims that the “culture wars are over and [the left] won”.
For Prof. ten Napel, the question now is whether, and to what extent, my research applies to Europe. I look forward to hearing the results of his inquiry and any further dialogue on the revolution against religious accommodation.