Wrestling with Religious Diversification

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Jaclyn L. Neo 

In the introduction to Sandy Levinson’s book Wrestling with Diversity, he states that his “principal goal” is “to examine the various ways that we attempt to come to terms with—to ‘wrestle’ with—the complex issues presented by contemporary life in a decidedly diverse, multicultural, and culturally pluralistic society.” This is a noble aim. We live in a diverse society with multiple sources of divisions (e.g., culture, language, ideology, and religion). In this post, I want to specifically orient our minds towards religious diversification as a social dynamic that requires critical attention in the public eye. This means that with increasing religious diversification, the old constitutional settlements of asserting the privatizing of religion, and ideologically bracketing religion, may no longer be sufficient.

First, a word on demographics. Demography shapes the underlying values of society and determines the pathways of change. Diversification brings about changes in societal makeup. A diversifying demography can portend more social cleavages, though institutional designs can assert centripetal or centrifugal forces in the face of such diversification. Religious diversification is occurring in many parts of the world, including in America. This diversification not only involves a widening range of religious sects but also an increase in the religious nones. In its 2015 The Future of World Religions: Population Growth Projections, 2010–2050, the Pew Research Center projected a significant decline of Christians in the United States, from more than three-quarters (78%) of the population in 2010 to two-thirds (66%) by 2050. The second largest group in the United States would be atheists, agnostics, and those religiously unaffiliated (25.6%, up from 17.1%), while Islam would become the largest non-Christian religion in the United States (2.1% of the population), replacing Judaism (1.4%).[1] Increasing diversification will also take the form of a rising proportion of other religions, though still small (from 0.6% to 1.5% of the population in the United States). 

These projected religious changes in the United States (with similar dynamics projected in Europe) are also significant when compared to projected religious changes globally. While the religious nones (atheists, agnostics and other people who do not affiliate with any religion) are projected to rise in North America and Europe, their proportions will fall in the rest of the world. Instead, Islam will grow faster than any other major religion globally, with its believers becoming as numerous as Christians.[2] The Hindu and Jewish populations are also set to grow globally, while the global Buddhist population will be about the same size it was in 2010. Thus, as the rest of the world is set to remain or become more religious and more diverse, North America and Europe will become less religious overall and more diverse. 

In fact, often, it is the process of diversification, and not the mere existence of diversity, that is most unstable and leads to great social fractures and political instability. As dominant religious groups lose their majority status, or perceive the risk of such loss, they may react negatively (even violently) to such changes. Such instability can be accentuated as societies move from mostly religious to increasingly non-religious. This is especially where these religious societies shared common values and dominated the constitutional system in such a way that the rise of religious nones would be considered especially threatening. 

As we therefore wrestle with new demography and new realities, what new constitutional settlements may be necessary? Dominant constitutional paradigms influence how one identifies important questions for constitutional interpretation. One such area of interrogation is already occurring in challenges against liberal secularism, especially as it is premised upon a particular conception of voluntaristic religion. Secularism as separationism in particular, and the claimed inextricability of secularism from modernity, has increasingly been seen as “highly unstable”[3] and inadequate for more pluralistic realities involving less squeamish religions.[4] Another area for interrogation is the definition of religion itself, which has also been subject to challenge. The legal definition of religion is critical to how courts allocate constitutional protections, but all definitions have a tendency to suffer from over-inclusiveness and under-inclusiveness.[5] Furthermore, where a Judeo-Christian religion is used as a baseline for religiosity (which is typically the case), this leads to an undue focus on text and authority structures. 

In some countries, such a focus on a Judeo-Christian religion may be incongruous in the face of a diversified society where Christianity is no longer the dominant religion. Outside of the Judeo-Christian paradigm, religions do not always prioritize textual authority or even establish an authoritative institutional structure. One already sees this incongruence in how constitutional law has had to adapt to new religious realities. The German constitution, for instance, is foundationally (understandably) Christian-centric, where the primary religious divide addressed is that of the two Christian churches—Catholic and Protestant. As German society diversified, the constitutional system has had to address the management of a significant segment of Muslims, including how to extend religious privileges and protections to ensure religious equality. This is not a simple matter of extending religious privileges as new frameworks have to be established. Since Muslims are not organized in the same institutional structures of authority as the Christians in Germany, the extension of privileges such as religious education in public schools (as provided under Article 7, paragraph 3 of the German Constitution) is not a simple matter. Wittmer and Waldhoff argue that within the strictures of the German constitutional structure, where religious education is facilitated and not directly determined by the state, the identification of a representative for a religious society becomes crucial to provide content in accordance with the principles of the religious society. As they put it, the core problem in establishing Islamic religious education in Germany, consistent with the state’s constitutional obligations, has been: “With whom should the state cooperate? If nobody can be identified the project must fail, as the state is not able to define the content of the Islamic religious education itself due to its obligation of neutrality in religious and ideological matters.”[6] 

A crucial part of the problem therefore is that existing constitutional frames presume a certain form of religious society, which are then put to test in a diversifying state where different forms of religious societies are more dominant. This means that there needs to be an interrogation of assumed categories, entrenched assumptions about law and religion, as well as the nature of religion and religious affiliations. Insofar as constitutional law has been built around dominant frames influenced by Christianity and European Enlightenment values, the focus on secularism, assumptions of embedded common religious (Christian) values, as well as the emphasis on text and authority structures may need to be reconsidered and adapted to diversifying conditions. The tendency may be to force the square peg into a round hole, by remaking these ‘new’ religious realities into an image of the old. In countries where Christianity has been dominant, this could mean remaking new religions into (poor?) images of Christianity with textual and institutional structures that are not traditionally found in these religions, as seems to be the case in Germany, for instance. The outcomes may be less than ideal; perhaps more foundational rethinking of the relationship between law and religion is needed. 

As Sandy suggests, wrestling with diversity and diversification requires a stronger commitment, going beyond what liberal multiculturalism theories may accommodate. It goes beyond facilitating individuals’ “right to assimilate … in the public sphere, with toleration of ‘difference’ in the private sphere” to something that requires the reformulation of the public sphere to accommodate their conceptions of the good.[7] As more individuals and groups demand the right to have their “difference” publicly recognized, what more needs to be done from the constitutional perspective? One question has to be whether law has to be more proactive in managing diversity more clearly. In jurisdictions worldwide, varying degrees of legal regulation of religion, including inter-religious relations, is the norm (notwithstanding the asserted claims of state neutrality). As religious diversification accelerates, a refusal to consider appropriate forms of legislation, may portend religious conflicts (and even violence). Good will, good faith, and good sense are not always in place to protect societies against such extreme social fragmentation. 

Ultimately, constitutional law may have to move beyond claims of state neutrality towards a more muscular form to better balance the need for state regulation of religion to be “in pursuance of legitimate public interests and [is] proportionate”, while also meaningfully uphold controlling principles to advance the cause of freedom for all, especially for religious minorities.[8] In short, secularism, in my view, should be directed at managing and maintaining religious pluralism. Managing societal threats arising from religious diversification is crucial and may require some state management in which neutrality may no longer be a sufficient conceptual tool. The suitability of constitutional law for the diversifying and diversified world will be contingent on its ability to persuade and adapt. Wrestling, as Sandy rightly points out, “is a permanent condition”.[9] 

Jaclyn L. Neo is Associate Professor in the Faculty of Law and Director of the Centre for Asian Legal Studies at the National University of Singapore. You can contact her at jaclyn.neo@nus.edu.sg.