Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Passive Secularism as Active Management of Religion
The following are remarks I made yesterday at the Buffett Center conference at Northwestern University on "State Management of Islam." The talk includes comments on some other papers that were presented at the conference.
I’m going to offer a hypothesis about state management of Islam, drawn from an analogous case in American law. I’m a lawyer and a political scientist, not an anthropologist or a sociologist, and I know hardly anything about the processes of state management of Islam that this conference focuses on, so this really is a hypothesis, and I’m eager for your reactions.
Here is my hypothesis. Passive secularism, of the kind one finds in the United States, is itself a tool for managing religion, and in many ways a more powerful tool than the instrumentalities of management that are used in the assertive secular states, such as France and Turkey. The reason why the state may want to manage religion is that religion can sometimes be a threat to the state’s legitimate goals. This is a problem with certain specific forms of religion, not with religion as such. The most prominent illustration in United States history is the abolition of slavery, which originated as a purely religious movement. The opposite case, where religious intervention in politics is oppressive and tyrannical, is at least as well known, with the early days of Khomeini in Iran serving as a kind of paradigm case.
My hypothesis draws upon Ahmet Kuru’s very useful typology of secularisms:
Passive secularism, which requires that the secular state play a “passive” role in avoiding the establishment of any religions, allows for the public visibility of religion. Assertive secularism, by contrast, means that the state excludes religion from the public sphere and plays an “assertive” role as the agent of a social engineering project that confines religion to the private domain.
The United States and India are instances of passive secularism; France, Turkey, and Mexico are instances of assertive secularism. Kuru observes that “[a]ssertive secularism seems to be incompatible with any religion that has public claims.” The consequence has been the familiar, bitter controversies over the role of religion in France and Turkey.
The pathologies of assertive secularism are particularly clear in France. John Bowen’s wonderful book, Why the French Don’t Like Headscarves, nicely shows how the French state has projected fantasies on what Islam must be like onto people with very different agendas, thus exacerbating the alienation and marginality of Muslim citizens.
The obvious advantage of passive secularism is that it is a possible object of overlapping consensus. It does not drive religious persons to the margins of politics. So Kuru is quite right to ask whether passive secularism is a more attractive option for Muslims than the more aggressive form that prevails in France and Turkey.
My hypothesis extrapolates from one historical case. That case, which may or may not have an analogy in contemporary Islam, is that of American Catholics. Passive secularism helped to transform Catholicism into a liberal and democratic religion.
Catholicism was once stubbornly antisecularist and antidemocratic. It reinvented itself largely through pressure from American Catholics, who were forced to reinterpret Catholic teachings, making them compatible with the requirements of American pluralism, in order to show that Catholics could be good American citizens. Eventually, they brought their new ideas back to Rome and transformed Catholicism worldwide, so that the Church itself now espouses religious toleration. If a liberalized Islam is going to flourish, perhaps it will be through the moderating force of passive secularism.
The problem of reconciling authoritarian religion with liberal democratic norms was starkly presented in the United States by the massive immigration of Catholics in the early part of the 19th century. At the time of the Revolution, barely one percent of the population was Catholic, about 30,000 people. That number grew to 600,000 in 1830, 1.5 million by 1850, twice that many ten years later, 12 million by 1900.
The Protestant majority regarded the newcomers, who were mostly poor and Irish, with deep suspicion. They feared “the church’s authoritarian institutional structure, its long-standing association with feudal or monarchical governments, its insistence on close ties between church and state, its endorsement of censorship, and its rejection of individual rights to freedom of conscience and of worship.” Anti-Catholic suspicions were exacerbated by the Vatican’s 1864 publication of the Syllabus of Errors, which denounced the freedom of conscience and disestablishment.
The Protestant majority response was a peculiar kind of “secularism,” one that defined core Protestant practices as secular. Most notably, public school students read from the King James Bible, a translation which the Catholic Church did not recognize. The idea of an unmediated approach to the Bible was, of course, a cornerstone of Protestantism.
The consequence was to drive Catholics into private enclaves. In response to the aggressive Protestantism of the public schools, the Catholics set up a massive system of schools of their own. Their efforts to secure public funding for these schools were universally rejected as “sectarian,” and by 1890, 29 states had amended their constitutions to impose some limitation on private school funding.
At the same time, American liberalism worked in important ways to the advantage of American Catholics. In 1922, Oregon voters approved a referendum, supported by the Ku Klux Klan, that abolished private schools. The Supreme Court struck down the law on the basis of “the liberty of parents and guardians to direct the upbringing and education of children under their control,” and it denied “any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”
More generally, though there were some nasty episodes of anti-Catholic violence, Catholics for the most part lived and flourished undisturbed in America. By the mid-1940s, they were the nation’s largest denomination, they dominated many major cities, and they advanced socially and economically, to the point where Al Smith, the Catholic four-time governor of New York, was the Democratic presidential candidate in 1928. This was very different from their experience in, say, Ireland. The Catholics’ flourishing in the United States, and their desire to show themselves to be good Americans, led them to adapt their religious views to their new circumstances. They had to confront their status as a religious minority in a context in which liberalism was an indispensable friend. They had no interest in the Church’s intolerant doctrines, which could not possibly be implemented in the U.S. anyway.
From the beginning, there was a tension between American Catholics, who were inclined to accept American institutions and complained of the Protestant biases of public education, and the Vatican, which rejected those institutions. An “Americanist” movement within the Church, which tried to adapt Catholicism to American pluralism, was rebuked by an 1895 encyclical letter from Pope Leo XIII. The Americanists ultimately triumphed in the Second Vatican Council, in which delegates and theologians from the United States overcame considerable opposition to produce the 1965 Declaration on Religious Liberty.
Is a similar transformation possible within worldwide Islam?
A persistent theme in the papers on this panel is the malleability of Islam in the face of local political forces. Michael Peletz emphasizes the “heterogeneity, unevenness, and domain-specific and contingent nature” of processes of desecularization, as Islam gets invoked in Malaysia and Indonesia by very different actors for very different ends, and how it is transformed when it is interpreted by lawyers schooled in British jurisprudence. Karen Barkey shows how Islam was deployed and transformed by the Ottoman Empire for its own purposes. Leonard Binder shows how delusional the idea of “an effortless emergence of a closely knit, morally integrated, authentically Islamic community” is. None of these papers directly address the situation of Muslims living in secularist regimes.
Most pertinent for my purposes is Vit Sisler’s study of fatwa-issuing websites addressing audiences in non-Islamic countries. The fact that shari’a is not an official source of law, Sisler observes, “transforms the observance of Islamic rules into a matter of individual choice.” (4) The consequence is “a new space in which traditionally educated muftis compete with new popular preachers over audiences,” thus displacing interpretive authority “from scholars towards selective personal interpretation.” The displacement is clearest in the phenomenon of “fatwa-shopping,” in which “a person approaches different authorities in order to obtain a fatwa that suits his or her needs.”
The consequence of all this will inevitably be a Protestantized form of Islam, in which religion has authority, but that authority is mediated by the conscience of the individual. That form of Islam will be friendlier to liberal and democratic values to the extent that Muslims in the West are under no pressure to distance themselves from their Muslim identities. It also matters quite a lot, of course, if those people are economically integrated and prosperous. If this kind of Islam grows and prospers in the United States – and this is already happening - it will not stay there. It must have some effect on worldwide Islam. Before the West thinks about imposing a liberal democratic Islam on other countries through military force, it would be wise to grow some at home.
In short, perhaps the promotion of passive secularism in the West can be the most effective thing we can do to promote democratic Islam abroad. Refusing to manage religion is itself a way of managing religion.  Ahmet T. Kuru, Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies toward Religion, 59 World Politics 568, 571 (2007).  Id. at 594. There is an ambiguity in Kuru’s typology, because “passive secularism” refers both to the state’s nominal neutrality on religious questions and to its adoption of public religious symbols, such as “In God We Trust” on the currency. Id. at 571. The latter is not secularist at all; it is a vague kind of official religion. Lumping these policies together as “inclusionary toward public visibility of religion” blurs these differences.  See especially pp. 141-49 of John R. Bowen, Why the French Don’t Like Headscarves (2007), showing the strange contortions of French administrators attempting to implement the headscarf ban.  John C. Jeffries and James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299-300 (2001).  Steven Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy 61 (2000).  Jeffries and Ryan at 305.  Pierce v. Society of Sisters, 268 U.S. 510 (1925).  A. James Reichley, Religion in American Public Life 211 (1985).  Id. at 286-88.