Richardson Sociology of Religious Freedom

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Sociobgy of Religion 2006, 67:3 271-294

The Sociology of Religious Freedom:A Structural and Socio-Legal AnalysisJames T. RichardsonUniversity of Nevada, Reno

This paper offers a structural and socio-legd analysis that examines historical, sociological, andcultural factors that have given rise to and promoted die idea of religious freedom in modem humansocieties. The effort involves an integration of research from the sociology of new arui m inority reli-gions with theoretical ideas from the Sociology of Religion and the Sociology of Law. The relationshiof pluralism to religious freedom is examined, as is how the pervasiveness, centralization, autonomy,type (adversarial vs. inquisitorial), and discretion of legal an d judicial systems impact religious free-dom. The application of key ccmcepts from the work of Donald Black, including status, intimacy, andthird party partisanship seem especially useful, and well as issues related to the social production ofevidence used in legal cases involving newer and controversial religious groups

INTRODUCTIONReligious freedotn is an' itnportant and almost universally declared value in

today's world, but this has not always been the case. Indeed, religious freedom isa relatively new concept that has spread widely around the globe. Explaining whythis has happened is the focus of this sociologically oriented analysis.'

The major thesis of this analysis is that there are endogenous and exogenous(Wejnert, 2005) historical, structural, and cultural conditions that contribute tothe development and tnaintenance of religious freedom. Indeed, I will assert that

* Direct correspondence to: James T. Richardson, Judicial Studies, U niversity of Nevada, Ma il Stop311, Reno, Nevada 89557. E-m ail: [email protected]. An earlier draft was presented at annuxil meetingof the Association for the Sociology of Religion, San Francisco, CA., August, 2004. Appreciation isexpressed to reviewers fo r their helpful suggestions.


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272 SOCIOLOGY OF RELIGIONthe idea of religious freedom itself is a product of certain historical/sociologicalconditions which led to the emhodiment of the notion of freedom of religion.Specifically, T he imp ortance of the c oncepts of a "strong sta te" and religious plu-ralism will be discussed, followed by an examination of the roles played in thedevelopment and maintenance of religious freedom by some key characteristicsof legal systems, including their autonom y, pervasiveness, discretion, type (adver-sarial versus inquisitorial), and centralization (Richardson, 2000, 2001, 2004).Also exam ined w ill be the o peration of status and intimacy and th ird party advo-cacy variables from the Sociology of Law (Black, 1976, 1999; Black andBaum gartner 1999). W hile m uch of wh at follows derives from the U nited States'experience, an effort will be made to incorporate comparative material whereappropriate to help demonstrate the efficacy of this synthetic approach.

This perspective is in sharp contrast to the common view that the idea ofreligious freedom was developed by certain enlightened individuals early inAmerican history and then enshrined in sacred legal documents and thereafterpromoted in America and then throughout the world, as other new and oldnations saw the wisdom of the new brilliant idea. In short, I am applying a morethrough-going sociological perspective for understanding the concept of religiousfreedom, and attempting to relate its origin and spread to structural and culturalconditions that developed in the modern world. Just as nature abhors a vacuum,sociology abhors "great person" theories of history, and instead tries to explainthe sociological conditions under which certain ideas arise at a given time andplace.IN THE BEGINNING

The beginning of the modem concept of religious freedom is usually credit-ed to th e tragic religious civil wars that ravaged Europe during th e 16th and 17thcenturies, following the Reformation, particularly the Thirty Years War inGermany, which brought about the deaths of millions of people. In 1618 theGerman Empire had 10 million people; in 1648 it only had six million. Thisdecades long tragedy led to efforts to find ways for peo ple of different faiths to livetogether in relative peace. As Vermeulen (1998: 49) notes:At least a partial solution to help end these horrible civil wars was brought about bytreaties tha t secured religious peace. In these treaties the state declared itself neutral (atleast to a certain extent) and guaranteed a minimum of religious freedom for every citi-zen. These peace treaties.... may be regarded as the first codification of freedom of con-science and religion and even of human rights in general.


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 273led to the movement of millions of people. Some of those migrants came toN or th A merica, to find a bette r life free of religious violence, dem onstrating tha tthe early history of the U nited States owes much to religious conflicts in Europe.That early history included the concept of religious freedom, even if the causesand processes whereby the idea developed have been oft misunderstood.Tbe United States Constitution is tbe first modern national governing doc-ument to explicitly assert tbe idea of religious freedom, witb its now famous andoft-mimicked two part clause in tbe First Amendment dealing witb religion:"Congress sball make n o law respecting an establisbm ent of religion, or prob ibit-ing tbe free exercise tbereof..."

I bave elsewbere commented on bow tbis clause came to be a part of tbeConstitution (Ricbardson 200la: 161, n 2):As has been noted by many..., this particular clause...derived from the historical fact ofpluralism in the fledgling America. People of many different religious persuasions hadcome to America, many fleeing religious persecution in their homelands. No religiousgroup had the strength of numhers to dominant the new nation, so a compromise wasstruck in an effort to make sure that such domination could not occur. The compromisewas a bit of, 'If my group cannot he the chosen church, then neither can any other!' Thushegan the great 'lively experiment' (to use Sydney Mead's famous term) of religious free-dom in the new nation of America.Tbis brief comment refers to tbe stalemate tbat bad developed between tbeCongregationalists in New England and tbe Unitarians of tbe Middle AtlanticStates. Botb would bave preferred to be tbe state religion of tbe new nation, butneitber could muster tbe political power to do so. Hence tbe 'great compromise'of tbe religion clauses of tbe Eirst Amendment to tbe Constitution, wbicb wasdrafted as a key part of tbe Bill of Rigbts in 1789, and finally ratified by tbe req-uisite num ber of states in 1791 (Miller and Elowers 1 987:1-5). T be language maybave been tbat of Tbomas Jefferson, but tbe concept was bom of political stale-

mate between equally powerful religious groups tbat were dominant in differentparts of tbe newly formed nation.THEORETICAL CONCEPTS

There are a number of endogenous structural variables tbat relate in signifi-cant ways to tbe development and maintenance of religious freedom in modemsocieties. I will discuss several of tbese variables in wbat follows, including keycbaracteristics of legal systems, as well as tbe continuing role of religious plural-ism in developing religious freedom. I will also discuss tbe application of somemajor concepts from tbe tbeoretical scbeme of Donald Black (1976, 1999) to an


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2 7 4 SOCIOLOGY OF RELIGIONThe Need for a Strong StateVermeulen (1998:49) makes an insightful comment about why the idea ofreligious freedom gained traction during the time period of the religious wars inEurope:

These peace treaties were not concluded for purely moral reasons. A most convincingargument was that the only way to end a civil war fought for religious motives betweenequally strong parties was to erect a superior power able to keep them apart and to estab-lish and maintain peace by guaranteeing a minimum level of reciprocal toleration...On lya strong state is able to guarantee religious freedom in a society torn apart by religious dis-sension.This quote suggests a strong state as a crucial prerequisite for religious toler-

ation and freedom. Vermeulen probably does not mean that a strong state giiar-antees religious freedom, but instead seems to be asserting that a strong state wasa necessary but not sufficient condition for the emergence of religious freedom.^Whether in modern times a strong state is required is an empirical question. But,tbe examples of tbe former Soviet Union and contemporary Communist Cbina,not to mention certain Islamic states certainly demonstrate tbat a strong statecan be antitbetical to religious freedom. Also, some would cbaracterize contem-porary Americaa "strong state"as demonstrating a degree of intolerancetoward minority faitbs, accompanied by a seeming growing tolerance for estab-lishment of selected religious traditions and beliefs (Ricbardson 1995a;Hammond, Macbacek, and Mazur 2004). Tbis being said, it is difficult to imag-ine a society, particularly a pluralistic one, developing religious freedom witbouta strong state to enforce religious freedom.Pluralism and Religious FreedomIt is axiomatic tbat religious freedom is of interest only in religiously plural-istic societies. If a society is homogeneous in terms of religion, tben tbere usual-ly would be little concern about religious freedom witbin tbat society. If all agreedon religious matters, wbo would raise tbe question of rigbts of religious minori-ties, and wby would it even be raised?Having stated tbe axiom, we need to acknowledge tbat virtually all contem-porary societies are religiously pluralistic to some degree, wbicb mean s tb at con-cerns about religious freedom issues exist in all modem societies (see Ricbardson2004). At issue is tbe degree and type of pluralism tbat exists in a society andwb at effect tb at bas on religious minorities trying to practice tb eir religion open -


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 275ly.^ One might predict some strong relationships between the degree and type ofpluralism present in a society and the level of concern about religious freedom.Thus, for instance we might expect a society that is structurally quite pluralisticto have a relatively high degree of religious freedom in terms of both fortnal pol-icy and practical application of that policy. A strong and centralized politicaland/or religious establishnient might repress religious niinorities, of course, as wehave seen in communist countries or under radical Islam regimes. That situationnotwithstanding, we would posit a positive relationship in most modem societiesbetween pluralism and religious freedom. For instance, if a highly pluralistic soci-ety in terms of religion did not h ave much religious freedom, the n we would pre-dict that another institution such as the military or a political party was exercis-ing an ino rdinate am oun t of power in tha t society. We would also predict tha t, insuch societies, a considerable amount of resources would have to be allocated tosuppress religious practices of those groups which were not favored by the state.Suc h a situation seems to be the case now in Cb ina , w ith its pervasive efforts tosuppress religious groups not sanctioned by the state (Edelman and Richardson2003, 2005).

Of special interest in terms of the development of religious freedom are theformer communist countries, most of which were relatively homogeneous interms of religion, even if of different faiths, prior to the advent of communism in1917 and then the later expansion of the Soviet Union after WWII. To varyingdegrees communism suppressed religion in those societies, accomplishing thisimpressively in East Germany, for instance, while failing miserably in Poland,where the Catholic Church managed even to augment its already prominentposition in society during the communist decades.

Even before the fall of communism these societies were experiencing theeffects of religious pluralism, as Western and Eastern cultural influences, includ-ing religious diversity, were being felt. But after the fall, a flood of new religionsfrom the West arrived, and something akin to a new "rush hour of the gods"(McFarland 1967) developed within these societies, as citizens sought newanswers to perennial questions of life and death. The old god of communism hadfallen, and replacements were rapidly imported or developed from indigenousreligions.Into this spiritual maelstrom also came new exertions of formerly dominantchurches, seeking their historical place of preem inence in their societies, such asin Russia with the Russian Orthodox Church (Shterin and Richardson 2000),but also in other nations in the region (see Richardson, 1997; and papers in


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276 SOCIOLOGY OF RELIGIONBorowik 1999, 2003; Borowik and Jablonski 1995; Borowik and Babinsky 1997;Borowik and Tomka 2001). Some formerly dominant and/or official churches inthese societies, whose leaders supported the concept of religious freedom in thelate 1980s and early 90s when still suffering under communist dominance, wereno longer so certain t ha t com plete religious freedom is such a good idea. Or theywanted religious freedom to be defined in organizational terms and granted onlyto formerly dominant religions such as their own. These former church leadersnow wanted to limit competition from the newer faiths, and assumed that thiscould be done by legal edict. These religious leaders had abandoned not onlycommunism but one of the real truths of Marxism, that certain historical forcescannot be resisted.

Pluralism is an inexorable historica l force th at w ill co ntin ue to develop w ith-in the former communist world whether it is welcomed by dominant political andreligious forces or not. This assertion is based in part on the ease of travel andcom munication in contemporary society which allows various religious groups todisseminate their message (Dawson and Cowan 2000) . Short of violent repres-sion, there is simply no way the growth of religious pluralism can be stopped, andeven violent repression does not seem able to stop the spread of new religiousideas over the long-term. Contributing to this inexorable force is the fact thatformer communist societies are in effect already quite pluralistic in nature, evenif unrecognized by societal leaders (Jagodzinski 1995).Also, these societies have been infused with Western values, including thatof religious tolerance, a process that was occurring even before the fall of com-munism, but was greatly accelerated by that event. These values include somedegree of recognition of human and civil rights, including religious freedom. So,the combination of structural pluralism, that is the presence of many differentand visible religious groups, coupled with the Westernization of values thatinclude individual autonomy and religious tolerance means that former commu-nist countries will have a difficult time going back to the situation prior to thefall of communism , a lthough it will no t be for wan t of trying in some former com -munist societies.

Western European countries are also having to deal with growing pluralism,both in terms of integrating Islam (see articles on Western Europe in Richardson2004), but also involving the spread of nontraditional versions of Christianityand so-called New Religious Movements (Shupe and Bromley 1994). This situa-tion has been particularly the case in recent years in France, Germany, andBelgium, although there have been some problems in other European societies aswell. But, societies such as the Netherlands (Kranenberg 1994) seem relativelyfree of such difficulties, and Denmark as well, although the rise of Islam in these


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 277ment or its implication, or if there is an understanding, opt for trying to retainmore hom ogene ity and religious and cultural "purity" tha n seems possible. Majorbattles have erupted over "new religions," sometimes called by the derogatoryterms "cult" or "sect", as well as older religious minorities such as Jehovah'sWitnesses. Severe restrictions have been placed on minority and new faiths insome Western European countries, to such an ex tent as to have provoked inter-national comment and condemnation in some cases, such as with Germany,Belgium, and F rance (Introv igne 1998; Beckford 2004; Duvert 2 004; Luca 2004;Eautre 2004; Introvigne 2004; Swantko 2004; Richardson and Introvigne 2001;Siewert, 2004; Aires 2004; G un n, 2004). These developm ents in W estern Europehave been used by some former communist countries to justify actions beingtaken to limit religious competition and re-establish formerly dominant church-es as defacto if not dejure state churches (see Shterin and Richardson 2000 onthe Russian situation). This could be considered an example of a spatial orregional exogenous factor (Wejnert, 2005) that might influence the developmentof religious freedom in areas close to W estern European dem ocracies.

One method for handling pluralism within the European context, which isinfluenced by its history of state sanctioned chu rches , is to develop a hierarchy ofreligions (Richardson 2001). Thus, some European societies arrange religiousgroups into lists, grouped into several different categories. Such a grouping mightlook like the following:

Table 1Hierarchy of Religious Groups Used in Some Societies

OEEICIALLY SANCTIONEDCH UR CH ES, ALLOWED EULLACCESS AND ALL PRIVILEGES

OTHER ACCEPTABLE CHU RCH ES,ALLOWED LIMITED PRIVILEGES

ALL OTHER RELIGIOUS GROUPS,WITH EEW OR NO PRIVILEGES


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278 SOCIOLOGY OF RELIGIONAlthough the grouping of religious organizations within the separate hoxescould vary over time and hy society, it is possible to offer some important char-acterizations. For example, those religious groups in hox 1 can have access toschools for religious education, to the military and prisons with chaplains, andthey are often granted special tax status and state funding, as well as special leg-islation (a "concordant") granting them privileged status in the society. Groupsin hox two may he religious organizations th at have a special status in oth er soci-eties of importance to the host society, or they may have historical status withinthe society. For instance, some European countries will grant a second level sta-tus to major religious organization that operate as major denominations withinthe U.S., or they may allow the Muslim community special privileges, such as ade facto recognition on polygamous marriages. Also, the Jewish faith may he

allowed to function with some privileges, especially in the aftermath of WWIIand the holocaust.Those in hox 3 have few privileges, and may not he allowed to own proper-ty or rent puhlic halls, or proselytize for m emh ers. Th ey migh t he allowed to m eetin private homes and possess their religious materials and books, hut little else.To violate these regulations may result in fines and even imprisonment. Thosegroups tha t fall into group 4 function undergrou nd, and m ay be subject to harass-m en t hy the authorities and others involved in self-help b ut officially sanctio ned

social contro l. These category 4 groups may he designated hy the media an d gov-ernment officials in quite derogatory terms, as part of social control efforts(Dillon and Richardson 1994; Richardson 1993a). Sometimes those in theselower categories may be told that they have to exist for a certain length of timeand achieve a certain number of participants before being considered for a high-er status and more privileges (Witham 1997).Such hierarchies of religious groups serve as guidelines for social controlagents, either puhlic or private, with more severe sanctions applying the lowerone's group is in the particular hierarchy functioning in a given society. Thus,

pluralism can be structured in a way tha t allows considerable social contro l to beexerted over selected segments of tbat pluralism. Tbis is a common pattem inEurope for both Western and former communist countries, thus religious plural-ism does not directly equate to significant religious freedom in every society.Other historical or political forces may interfere with the "natural" impact ofstructural pluralism.CHA RAC TERIZATION S OF LEGAL SYSTEMS

Centralization and Pervasiveness


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 279There is an obvious distinction between tnodem and pre-modern societies interms of centralization and pervasiveness. However, we can also discern impor-tant differences on this variable within the category of modern societies, partic-ularly pertaining to religion.

For instance, in the United States there is a very pervasive legal system thattouches virtually every person's life on a regular basis. But, when one considersreligion and religious freedom within the context of the U.S., there are interest-ing historical and structural characteristics that represent limits to pervasivenessof the legal system in matters religious. Unlike many countries, the individualAmerican states have considerable autonomy, thus placing some limits on thefunctioning of the federal legal system in the U .S . A ltho ug h the federal legal sys-tem has supremacy, the various states can afford some protections for religiousideas and practices with in the re borders.'' Also, as already noted , the C on stitu tionof the United States affords considerable protection for religious beliefs andbehaviors throughout the society. That protection is not absolute: for example,polygamy, snake handling, and use of LSD in religious services are all against thelaw in the U.S. (Finkelman 2000:462-464; Witte 2005:126-129, 167), but it isalso quite legal to ritually sacrifice chickens in a religious service in the U.S., asindicated by a unanimous Supreme Court opinion just a few years ago (Witte2005:126-129, 167), and it is also legal for open and aggressive proselytizing bysmaller and newer faiths to take place on the streets of America, again repeated-ly affirmed by the nation's highest court (Cote and Richardson 2001).

Religion does not serve in t he U .S . as a valid shield against overt law-break-ing, although even a straight-forward appearing episode of violating a law takeson special m eaning if claims are made tha t the person was acting out of religiousmotivations. Most cases involving such claims will receive special attention toensure that the person's religious rights are not violated, thus offering some pro-tections for religiously motivated behavior. Therefore, the Constitutional pro-tection afforded religion through the First Amendment stands as a bulwarkagainst incursion of the state into things religious in the U.S. (Bromley andRob bins 1992). Th is makes it more difficult (but n ot impossible; see Richardso n1995a,b) for the state to exert control over religion in general and over newerfaiths, including the controversial ones that have caught the attention of the

T h e ability of Am erican states to assert religious freedom in the face of federal limita-tions is illustrated by reaction to the 1993 Smith v. Oregon case, a decision establishing limi-tations on religious freedom at the federal level. This decision led directly to the ReligiousFreedom Restoration Act (RFRA) which was designed to overturn the effects of Smith and


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280 SOCIOLOGY OF RELIGIONmedia and the general public in recent decades. To exert such control is to limitthe religious freedom of some groups and their practitioners (see Shupe andBromley 1980; Hammond et al., 2004; McGraw 2003; Richardson 2001a).

In most modem European countries constitutional protections exist for reli-gious freedom, or the nations have signed intemational accords guaranteeingreligious freedom. However, the provisions do not have the same meaning andare not enforced in the same manner as in the U.S. This is mainly because thereis nothing analogous in those documents to the anti-establishment clause thatappears in the U.S. Constitution's First Amendment (Witte 2005:243). In largepart this may be a function of the histor ical fact of official (and quasi-official)state churches having evolved within the European context.' In many Europeancou ntries the re is an officially sanction ed type of religion, even if the specific for-mal arrangements for that sanctioning differ somewhat. Sometimes that official-ly sanctioned religion is dual in nature, as in Germ any or the N etherla nds, bothof which have b oth C atholicism and a type of Protestantism enjoying official sta-tus.

In societies with an official church or churches there may be a tendency forthe legal system to become involved in enforcing that official status. When thisoccurs the legal system may work with other institutions in the society to makesure that the official brand of religion is adhered to by citizens, and that nonoffi-cial religions are discouraged. In such situations a govemment may attempt tomanage religion and the religious life of citizens to a considerable extent morethan in other Western democracies, thus potentially limiting the religious free-dom of its citizens. This would especially be the case in a more religiously plural-istic society which had a hierarchy of acceptab le faiths, differentiating betw eenthose faiths in terms of status and privilege.

For instance, the legal systems of France, which has Catholicism and an"unofficial" religion, seems more pro ne to enforce n orm ative b ehavior in the areaof religion than is the case in the Netherlands, Denmark, or Italy (see Beckford1985, 2004; Kranenborg 1994; Richardson and van Dreil 1994; Introvigne 1994;Luca 2004; Intorvigne 2004; Duvert 2004; Homer 2004; Singelenberg 2004;Rothstein 2004). It is also clear that in some European societies conflict maydevelop between the political institution and the legal system over the issue ofreligious freedom. Such seems to be the case in Germany at present, where someminority faiths, including Islam, are iinder considerable pressure from politicalauthorities (Seiwert 2004; Aires 2004), but have some protection afforded them


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 2 8 1because of a relatively autonomous legal system, a variable to which we now turnour a t ten t ion . 'Autonomy^

A legal system m ay have m ore or less autonom y. Sta ted an oth er way, in somesocieties judges are able to exercise m ore discretion in the ir decision m aking th anis the case in other societies, a situation that could assist the development of aculture of religious freedom. In some societies the legal system may be dominat-ed by other institutions, such as political or military institutions, or even by achurch that has special recognition as the state church. It is clear, for example,that the legal system in the United States enjoys considerable autonomy com-pared to many other societies. The legal system has seen an evolution of a his-torical role in America that allows it, on occasion, to dominate the ExecutiveBranch (the Presidency), as well as the Congress, through the process of havingthe power to declare laws passed by Congress unconstitutional, or being able toreview actions of the Executive Branch for legality, as occurred in the infamousWatergate scandal of several decades ago.

Many Western European societies have relatively autonomous legal systems,with the courts able, to varying degrees, to exercise independence from otherinstitutional structures. Thus, we see the court systems of Italy, Germany, theUnited Kingdom, and a number of other countries able to function with consid-erable freedom from direct intervention by other institutional structures. Thereare variations in the autonomy of judicial systems among these European soci-eties with, for instance, France having a less autonomous judicial system than isthe case with Italy, a sitiuation with implications for the way minority faiths aredealt with in those societies.*The case of Hungary is very interesting, given its recent history under com-munism. This society also demonstrates a legal system with considerable autono-my, especially with the power assumed by and granted to its Constitutional

C ou rt. Kim S chepple (1999, 2003) describes how during the 1990s this court reg-ularly declared, with impunity, a significant proportion of the laws passed by the

'Th is analysis could be extended to incorporate transna tional entities such as the Councilof Europe, with its transna tional judicial system, the European Court of Hum an Rights, whichexerts authority over member states, including in the area of religious freedom. SeeRichardson (t99 5c ), Evans (2001), and Richardson and G aray (2004) for discussions of reli-gious freedom cases dealt with by the ECHR, which could be thought of as an important


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282 SOCIOLOGY OF RELIGIONHungarian Parliament unconstitutional. She also describes how its advice wassought by the Parliament as it considered new legislation. Thus, in a very shorttime, Hungary came to resemble some long-term democracies of the West interms of the degree of autonomy granted its judiciary (see Ricbardson 1997a).

Once the top courts in a judicial hierarchy within a society achieve somedegree of autonomy, tbis may empower otber courts within tbat system. Theselower courts may attempt to "measure up" to the autonomy of courts which areabove the m or whicb ban dle different relatively auton om ous spheres of responsi-bility within tbe legal bierarcby (such as a state court systems and tbe separatefederal bankruptcy or maritime courts which exist in the U.S.). A "culture ofautonomy" can develop, making autonomy potentially generalizable througho uta legal system, witb lower or different courts being emboldened to act withauthority if other courts are able to exercise autonomous power. And, the citi-zenry, aware of tbe authority of tbe higher courts, may assume that lower courtssbare tbis mantle of autonomy; tbat is, citizens may tend to abide by court deci-sions more in societies wbere tbere is a culture of autonomy wbicb involves asbared understanding tbat tbe courts do have independent power.

Sbarply con trasted w itb high degrees of autonom y, are situations w here tbecourts serve only at tb e pleasure of despotic rulers, w itb its functionaries appo int-ed by sucb entities. One only needs to tbink of countries sucb as Iran and Libya,or courts functioning under communism to grasp tbis point. Judges in tbose cir-cumstances understand tbat tbey bad little autonomy, and tbat if tbey cbose toexercise autono my tbeir jobs if not tbeir lives would be jeopardized. Judges un dersucb systems understand tbat they are to assist in implementing an ideology,wbether it be communism, radical fundamentalist Islam, or some otber set ofbeliefs (see Sbterin and Ricbardson 2002; Ricbardson, Krylova, and Shterin 2004for examples from Russia).

Somewhere in between bigb autonomy and low autonomy societies are otb-ers wbose legal systems bave not achieved significant autonomy, but wbicb bavevarying degrees of freedom to act independent of political, religious, or militaryinstitutions. Falling into tbis category are some of tbe societies tbat were undercommunism for so many decades. It is unrealistic to tbink tbat tbey wouldcbange ovemigbt into full-blown democracies, witb legal systems functioning astbey do in more advanced industrial societies in tbe West. Again, Hungary seemsan anomalous case in tbis regard, but tbe bistorical circumstances of tbis "court-centric" approacb taken by Hungary are quite unusual (Scbepple 1999, 2003).'


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 283To say that a society's legal system has autonotny does not mean, of course,that the legal system is free of all considerations of external influence, for courtsmust act within a cultural milieu, with its specific cultural values and beliefs,including ones concerning religion and religious groups. Thus, judges and othercourt personnel (which in some countries includes, quite importantly, individualcitizens serving as jurors) are individuals who share to varying degrees the valuesand beliefs of that culture, and, not surprisingly, those personnel wbo make upthe legal institution s act out those values as they do tbeir work w ithin those insti-tutions. Thus, one can bave actors witbin completely autonomous legal systemsacting in ways tbat to some observers seem quite normative and even in opposi-tion to basic bum an and civil rigbts. Tb is could occur, no t because of coercion oflegal officials but simply because tbose filling roles witbin tbe legal system were

acting out tbeir values and beliefs in ways tbat were discriminatory (Ricbardson2000).Court systems in a society migbt implement racist values, for example, assome observers bave said about tbe United States' legal system tbat incarceratesdisproportionate numbers of Black men. Court systems migbt favor one etbnicgroup over anotber, gran ting a bigber legal status to one group or anotb er becauseof cultural values sanctioning sucb outcomes. Tbe "Black Codes" and Jim Crowlaws establisbed in tbe U.S. after tbe Civil war illustrate tbis possibility(Woodward 1974), as do tbe legal structures developed in Nazi Germany towardJews (Hilberg 1985). In tbe United States considerable bias against a minorityfaitb can be sbown in legal cases involving tbe surviving Brancb Davidians, wbowere dealt witb in almost a summary fasbion in botb tbe criminal and civilactions tbat followed tbe tragic episode outside of Waco, Texas in 1993 (Wrigbt

2001; Ricbardson 2001b).Most germane for our purposes bere, legal systems migbt favor one religiousberitage over otbers, granting practitioners of tbe cbosen religion a privilegedplace and special treatment witbin a legal system. Tbis is anotber way of saying

that legal systems, even tbougb tbey bave considerable autonomy, migbt notsupport religious freedom for all citizens in a society, because of tbe implementa-tion of cultural values tbat denigrate certain religions wbile promoting otbers.Tbe consideration of cultural values can be demonstrated by considering tbepossible ways tbat tbe cultural value for religious freedom migbt relate to tbevariable of autonomy of legal systems. Higber levels of autonom y and more reli-gious freedom would be expected to occur togetber more frequently, as wouldcases of little religious freedom and low autono my . Tbis logic rests on tb e assump-tion tba t religious freedom for mino rity religions requires, among oth er consider-ations, an autonomous judiciary wbicb is itself protected from external influ-


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2 8 4 SOCIOLOGY OF RELIGIONAdversarial Versus Inquisitorial Types of Legal SystemsThe differences between tbe adversarial legal system prevalent in tbe U.S.and the inquisitorial legal systems found in most European countries and else-wbere also bear discussion. Tbere are obvious ramifications of for bow minorityfaitbs are treated witbin tbe two types of legal systems. One major issue would betbe im portance to unpopular minority faitbs of baving an in depe nden t advocate(an important example of Black's "tbird party partisan:" see discussion below) fortbeir position sucb as could be tbe case witbin an adversarial system of justice.Exa min ation of tbe interaction of variables discussed in tbis paper, sucb as auto n-omy of tbe legal system, witb the type of legal system (adversarial versus inquisi-torial) could yield important insigbts. For instance, one migbt expect tbat tbebest of all worlds in terms of promoting religious freedom would occur witb a rel-atively autonomous judiciary in a society witb an adversarial legal system, espe-cially if the values of tbat society included an empbasis on religious freedom.SOCIOLOGY OF LAW THEOR IES

One can also cbaracterize legal systems according to otber variables, includ-ing wbo or wbat classes of people bave access to tbe legal system for tbeir privategoals, a contingency witb important ramifications for religious freedom. DonaldBlack's work in tbe sociology of law reveals tbat a number of structural variablesimpact access to law and tbe legal system, including, for instance, status and"intimacy," as well as tbe partisansbip of tbird parties (Black, 1976, 1999; Blackand Baumgartner 1999). Black's work bas direct application to tbe operation ofreligion freedom in a given society (Ricbardson 2001a, 2004, cbp. 1; 2005).Status and IntimacyTbe bigber tbe status of an individual or a group, tbe more prone tbey are tomake use of tbe legal system, and tbe more pron e tbey are to be able to work tb eirwill wben using tbe legal system. Wbetber or not tbose in bigb status positionssupport religious freedom will bave significant impact on bow religious freedomis defined and functions in a society. "Intimacy" refers to personal, attitudinal,and cultural closeness to participants in tbe legal institution, a variable obvious-ly often related to tbat of status. Tbe bigber tbe social and economic status, tbemore prone an individual is to baving personal relationsbipsor at least sbaringcommon valueswitb members of tbe legal system, wbicb in turn may cause tbatsystem to be more responsive to tbe needs of sucb socially located people. Also,if bigher status individuals or groups have intimate ties with minority religionsand tbeir adberent, this can dramatically impact bow tbose minority faitbs are


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 285effectively dictate outcomes of legal actions, or even instigate legal actions tbem-selves, eitber privately or as an agent of a governmental agency, against individ-uals or groups viewed as problematic by tbose in power. We would bypotbesizetbat autonomy of a legal system would be most easily overcome wben tbose inhigh positions in tbe judiciary sbare cultural values witb tbose in otber bigb sta-tus positions in society witb wbom tbey are personally intimate.

We are not suggesting tbat autonomy is always overcome in sucb circum-stances. Indeed, anotber related bypotbesis to sbow bow tbese variables migbtrelate in a manner demonstrating a high degree of autonomy would be tbe fol-lowing: If a legal system is truly autonomous, tben tbat autonomy will negative-ly impact tbe intimacy sbared by members of tbat system and otber bigb statuspersons in otber institutional structures. Also, in sucb situations tbe status oftbose in tbe legal system will be bigb relative to leaders of other institutionalstructures.

Tbese and otber possible bypotbeses can be used to demonstrate bow a soci-eties witb various configurations of key variables treat small and unpopular reli-gious groups not a part of tbe dominant tradition of tbe society. A trulyautonomous judiciary can defend itself against tbe actions and desires of bigb sta-tus individuals wbo might want to exert control over a given religious group. Tbiswould be easier, of course, in a context wbicb included constitutional guaranteestbat bad been deferred to bistorically and wbicb enjoyed public support, a cir-cumstance indicative of a favorable cultural climate in wbicb to defend religiousfreedom It would also be easier to exert autonomy in favor of tbe value of reli-gious freedom if judges in tbe judicial system knew tbat tbeir decisions were sub-ject to review by extemal bodies, sucb as tbe European Court of Human rigbts(see note 6).

But, be reminded tbat earlier in tbe discussion of autonomy I discussed prob-lems tbat can arise if tbose in decision making positions witbin tbe legal system(usually judges, but also sometimes, especially in tbe U.S., juries) are biased abouta given religious group, or do not sbare values concerning religious freedom (ortbey do not accept a claim tbat a party is in fact a "real religion").'" Tbis situa-tion could be exacerbated in societies witb centralized and pervasive legal sys-tems. Tbus tbe important Blackian variables of status and intimacy can interactwitb tbe issue of autonomy, centralization, and pervasiveness in ways tbat severe-ly limit religious freedom in a given society. Tbey can also interact in a manner

'"See DeWitt, Richardson, and Warner (1996) and PfiefFer (1995, 1999) for experimen-


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286 SOCIOLOGY OF RELIGIONcond ucive to religious freedom, and being able to discern the differences betw eenthose two polar opposite situations would be imp ortant.Third Party PartisansThird party partisans, another of Black's key concepts (Black andBaumgartner 1999), also can play a key role in defending religious freedom.When politically weak religious groups are attacked in the media, by politicians,or in legal actions, they usually are remarkably disadvantaged. But, occasionallysuch groups may attract unlikely defenders. Som e groups or individuals in a soci-ety wbo value religious freedom may come to tbe defense of minority religiousgroups and tbeir practices. Witbin tbe U.S. groups sucb as tbe ACLU or tbeNational Council of Cburcbes migbt defend a minority faitb's rigbts to believeand practice tbat religion, even tbougb it was controversial and unpopular. Ontbe interna tional level tbere are a num ber of groups and organizations tbat some-times enter controversies over religious freedom, including NGOs sucb asAmnesty Intemational, tbe Organization for Security and Cooperation in Europe(OSCE) (Gunn 2002), and pan-governmental organizations sucb as tbeEuropean Court of Human Rigbts (Evans 2001).

In o tber situations political and otber societal leaders may, for various reasondefend unp opu lar groups. In Hungary, for instance, liberal members of Parliam entsided witb tbe Hare Krisbna in battles over tbeir rigbt to receive revenues fromtbe State, and tbis also may bave affected tbe positive outcome in a major libelaction tbe HK bad brougbt against a prominent leader of tbe Reform Cburcb inHungary (Kamaras 1997; Ricbardson 1997a). In tbe Un ited States tbe filing of alarge number of amicus briefs by major religious organizations on bebalf ofReverend M oon in bis appeal of bis conviction for tax evasion is ano tber promi-nent illustration of tbird party intervention (Ricbardson 1992b; H. Ricbardson,1984)."

Sometimes, bowever, tbird party partisans may align tbemselves witb tbosewbo are attacking religious groups and working to limit religious freedom. Wbentbis occurs it places minority faitbs at an even greater disadvantage tban migbtotberwise be tbe case. W be n W estern anti-cult organizations allied in tbe 1990switb tbe Russia Ortbodox Cburcb and conservation politicians in Russia tbisresulted is great difficulties for non-Ortbodox religious groups (Sbterin andRicbardson 2000). Tbere bave even been instances in Russia wbere tbe govern-ment took tbe role of a tbird party partisan in a civil action between parents ofparticipants in minority religions and tbose religious groups (Ricbardson et al.2004).


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 287In tbe United States and Europe tbere bas been an intervention by key rep-resentatives of tbe mental bealtb profession in ways tbat limit religious freedomfor some controversial religious groups, as participation in tbose groups basbecome defined as a mental bealtb problem (Ricbardson, 1991, 1992a, 1993c;Ricbardson and Stewart 2004; Kilboume and Ricbardson 1984; Antbony 1990;Antbony and Robbins 2004). Also, cbild welfare workers bave sometimes inter-vened in religious communities in very dramatic ways tbat include attempts topermanently remove cbildren from tbeir parents in tbe group (Swantko 2004,Ricba rdson 1999b). In bo tb examples tbe professionals can be tbou gb t of as tbirdparty partisans wbo bave aligned tbemselves against tbe religious group, tberebypotentially limiting religious freedom of sucb groups.

Discretion and the Rules of EvidenceSeveral key sociological variables of importance to understanding bow legalsystems operate bave been described, especially as tbey relate to tbe use of tbelegal system as a social control mecbanism for use witb religious groups and prac-tices perceived as dev iant w itbin tbe g reater society. Su cb social control can limitreligious freedom.Evidentiary issues, tbat is, rules and criteria for acceptance of evidence andtbe discretion involved in tbeir application will be a focus of tbis brief section(see Cinsburg and R icbardso n 1998; Ricba rdson 2000 for more detail) . Problemsconcerning production and quality of evidence can arise in cases involving con-troversial groups and tbeir alleged practices, even in societies witb relativelyautonomous legal systems and a cultural value of religious freedom. Evidentiarydecisions can limit religious freedom of minority religions in society in a numberof ways. Included would be decisions to admit or not certain kinds of evidence,as well as decisions to produce evidence to support a norm ative decision (Cooney1994) or to refuse admittance of evidence tbat migbt be belpful to religiousminorities.Sucb discretionary decisions can occur because of cultural values tbatinvolve biases and stereotypes about sucb groups and p ractices. Courts seem m oreprone to allow (or even on occasion to encourage) problematic forms of evidencein cases involving m arginal groups and practices so tbat tbe n orm ative role of tb ejudicial system can be exercised (Ricbardson 2001a). Tbis can occur becausedecision makers in legal systems can ac t out tb eir prejudices an d misinformationabout sucb groups, based on tbeir stereotypes. Decisions are sometimes made byjudges to admit evidence tbat would not be admitted under otber, more normal,

circumstances. Also jurors are prone to accept questionable evidence wben itsupports notions tbat a strange and unpopular group bas done sometbing illegal,


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288 SOCIOLOGY OF RELIGIONconcerning what is and is not acceptable evidence.'^ Acting normatively meansthat controversial and unpopular religious groups would more often lose, andthereby expe rience a n official and legally sanctioned dim inutio n of their religiousfreedom.

Put a noth er way, it seems clear that in any legal action the p rodu ction of evi-dence is crucial: w ithout evidence there is no basis for the case. A nd , it is just asclear that the production of evidence is a social process, subject to the operationof sociological variables such as those discussed above (Cooney 1994;Richardson, Gatowski and Dobbin 1995; Richardson and Ginsburg 1996;Gatowski, Dobbin, Richardson, and Ginsburg 1 997). Production and acceptancein court of evidence against religious groups can operate to limit religious free-dom, such as in cases involving claims of "brainwashing" that have been usedagainst some religious groups (A nth on y 1990; Richard son 1991; Ginsbu rg andRichard son 1998 ), claims tha t a group is a "cu lt" (Pfeiffer 1995, 1999), or tha t areligious group is dangerous to others (Richardson 1993a, b, 2000; Dillon andRichardson 1994).SUM M ARY A N D CO NCL U SI O NS

This analysis of the historical, sociological, and cultural contexts relevant tothe development of religious freedom has attempted to demonstrate the value ofintegrating research from sociological studies of minority and new religions withtheories from bo th th e Sociology of Religion and the Sociology of Law. Followingis a summary of how some of those ideas may be usefully applied to the treatmentof newer and minority faiths in modern societies.

Given the centralization and pervasiveness of legal systems in the modernworld, coupled with the growth of religious pluralism in modern societies, manylegal actions will arise that involve newer and smaller religious groups. Theamount may vary by society, but in all modem societies the legal system will beinvolved in exerting control over such religious groups and practices, a charac-teristic of such societies th at can and does limit religious freedom. Observ ing thefrequency and patterns of social control efforts applied to new religions and othermino rity faiths can reveal m uch about the values and organization of a society, aswell as ahout the state of religious freedom in that society.The degree of autonomy of the judicial system in a society is crucial to main-tain religious freedom, if those occupying positions of authority in that system


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THE SOCIOLOGY OF RELIGIOUS FREEDOM 289share the values of tolerance and religious freedom. If so, then the inherent dis-cretion of any legal system can hecome a hulwark for religious freedom. The typeof legal system also is important; in adversarial systems there is a greater chancethat relatively powerless religious groups will attract assistance in their legal con-flicts. Also, the presence of enforceable constitutional and statutory provisionsprotective of religious freedom, as well as powerful third party partisans can becrucial to defending religious freedom in a society.

Status and prestige variables play a major role in decisions made within legalsystems about n ewer faiths, including key evidentiary decisions tha t are made bythe judiciary. Newer and minority religious groups nearly always have lower sta-tus and prestige than the group's adversaries involved in the legal system, includ-ing the parties bringing the action against the group, or defending against anaction brought by a smaller or newer group or its representatives. Thus, newerand smaller religious groups are disadvantaged from the outset in such processes,limiting the religious freedom of practitioners.

The variable of personal and cultural intimacy also plays a crucial role sincekey decision makers in th e legal system may be unfamiliar w ith new and mino ri-ty faiths. Decision makers may share quite negative views of certain religiousgroups and the ir practices, and those views may have becom e hegem onic throug hnegative media coverage and the actions of societal opinion leaders. Thus, thenewer groups are not only strangers, they may become feared strangers, thoughtto require normative intervention by those decision makers who may assume that"messages must be sent" th at the alleged behaviors and beliefs are no t acceptablein norm al society.Those n orma tive com mun ications can be acted out in many forms, includingthe evidentiary decisions or any other discretionary action of judicial and legalsystems. Such decisions may limit religious freedom under some of the con ditionsdescribed herein. Third party partisans can also play a key role in how religiousfreedom is defined in a given society. If key groups and ind ividuals a ttack religious

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Richardson Sociology of Religious Freedom