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Sociology of Religion 2006, 67:3 271-294 The Sociology of Religious Freedom" A Structural and Socio-Legal Analysis James T. Richardson University of Nevada, Reno This paper offers a structural and socio-legal analysis that examines historical, sociological, and cultural factors that have ~ven rise to and promoted the idea of religious freedom in modero human societies. The effort involves an integration of research from the sociology of new and minority reli- gions with theoretical ideas from the Sociology of Religion and the Sociology of Law. The relationship of pluralism to religious freedom is examined, as is how the pervasiveness, centralization, autonomy, type ( adversarial vs. inquisitorial), and discretion of legal and judicial systems impact religious free- dom. The application of key concepts from the work of Donald Black, including status, intimacy, and third party partisanship seem especially useful, and well as issues related to the social production of evidence used in legal cases involving newer and controversial religious groups INTRODUCTION Religious freedom is an important and almost universally declared value in today's world, but this has not always been the case. Indeed, religious freedom is a relatively new concept that has spread widely around the globe. Explaining why this has happened is the focus of this sociologically oriented analysis. 1 The major thesis of this analysis is that there are endogenous and exogenous (Wejnert, 2005) historical, structural, and cultural conditions that contribute to the development and maintenance of religious freedom. Indeed, I will assert that * Direct correspondence to:James T. Richardson, Judicial Studies, University of Nevada, Mail St@ 31 l, Reno, Nevada 89557. E-mail: [email protected]. An earlier draft was presented at annual meeting of the Association for the Sociology of Religion, San Francisco, CA., August, 2004. Appreciation is expressed to reviewers for their helpful suggestions. lA study of the development of religious freedom is obviously related to the spread of democracy in the modero world. See Wejnert (2005) for an excellent study comparing the impact of endogenous and exogenous factors on the development of democracy, and Richardson (2006) fora discussion of the specific role of religion in the spread of democracy within the region formerlydominated by the Soviet Union. 271 at RMIT University Library on September 4, 2014 http://socrel.oxfordjournals.org/ Downloaded from

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Sociology of Religion 2006, 67:3 271-294

The Sociology of Religious Freedom" A Structural and Socio-Legal Analysis

James T. Richardson University of Nevada, Reno

This paper offers a structural and socio-legal analysis that examines historical, sociological, and cultural factors that have ~ven rise to and promoted the idea of religious freedom in modero human societies. The effort involves an integration of research from the sociology of new and minority reli- gions with theoretical ideas from the Sociology of Religion and the Sociology of Law. The relationship of pluralism to religious freedom is examined, as is how the pervasiveness, centralization, autonomy, type ( adversarial vs. inquisitorial), and discretion of legal and judicial systems impact religious free- dom. The application of key concepts from the work of Donald Black, including status, intimacy, and third party partisanship seem especially useful, and well as issues related to the social production of evidence used in legal cases involving newer and controversial religious groups

INTRODUCTION

Religious freedom is an important and almost universally declared value in today's world, but this has not always been the case. Indeed, religious freedom is a relatively new concept that has spread widely around the globe. Explaining why this has happened is the focus of this sociologically oriented analysis. 1

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

* Direct correspondence to:James T. Richardson, Judicial Studies, University of Nevada, Mail St@ 31 l, Reno, Nevada 89557. E-mail: [email protected]. An earlier draft was presented at annual meeting of the Association for the Sociology of Religion, San Francisco, CA., August, 2004. Appreciation is expressed to reviewers for their helpful suggestions.

lA study of the development of religious freedom is obviously related to the spread of democracy in the modero world. See Wejnert (2005) for an excellent study comparing the impact of endogenous and exogenous factors on the development of democracy, and Richardson (2006) fora discussion of the specific role of religion in the spread of democracy within the region formerly dominated by the Soviet Union.

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the idea of religious freedom itself is a product of certain historical/sociological conditions which led to the embodiment of the notion of freedom of religion. Specifically, The importance of the concepts of a "strong state" and religious plu- ralism will be discussed, followed by an examination of the roles played in the development and maintenance of religious freedom by some key characteristics of legal systems, including their autonomy, pervasiveness, discretion, type (adver- sarial versus inquisitorial), and centralization (Richardson, 2000, 2001, 2004). Also examined will be the operation of status and intimacy and third party advo- cacy variables from the Sociology of Law (Black, 1976, 1999; Black and Baumgartner 1999). While much of what follows derives from the United States' experience, an effort will be made to incorporate comparative material where appropriate to help demonstrate the efficacy of this synthetic approach.

This perspective is in sharp contrast to the common view that the idea of religious freedom was developed by certain enlightened individuals early in American history and then enshrined in sacred legal documents and thereafter promoted in America and then throughout the world, as other new and old nations saw the wisdom of the new brilliant idea. In short, I am applying a more through-going sociological perspective for understanding the concept of religious freedom, and attempting to relate its origin and spread to structural and cultural conditions that developed in the modern world. Justas nature abhors a vacuum, sociology abhors "great person" theories of history, and instead tries to explain the sociological conditions under which certain ideas arise at a given time and place.

IN THE BEGINNING

The beginning of the modern concept of religious freedom is usually credit- ed to the tragic religious civil wars that ravaged Europe during the 16th and 17th centuries, following the Reformation, particularly the Thirty Years War in Germany, which brought about the deaths of millions of people. In 1618 the German Empire had 10 million people; in 1648 it only had six million. This decades long tragedy led to efforts to find ways for people of different faiths to live together in relative peace. As Vermeulen (1998: 49) notes:

At least a partial solution to help end these horrible civil wars was brought about by treaties that secured religious peace. In these treaties the state declared itself neutral (at least 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.

After the killing of millions, the idea of toleration, the forerunner of the con- cept of religious freedom, seemed to those in authority to be worth trying, and so it was, bringing a modicum of peace to the war-ravaged European subcontinent. However, these religious wars and the persecution that those conflicts entailed

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led to the movement of millions of people. Some of those migrants carne to North America, to find a better life free of religious violence, demonstrating that the early history of the United States owes much to religious conflicts in Europe. That early history included the concept of religious freedom, even if the causes and processes whereby the idea developed have been oft misunderstood.

The United States Constitution is the first modero national governing doc- ument to explicitly assert the idea of religious freedom, with its now famous and oft-mimicked two part clause in the First Amendment dealing with religion: "Congress shall make no law respecting an establishment of religion, or prohibit- ing the free exercise thereof..."

I have elsewhere commented on how this clause came to be a part of the Constitution (Richardson 2001 a: 161, n 2):

As has been noted by many..., this particular clause...derived from the historical fact of pluralism in the fledgling America. People of many different religious persuasions had come to America, many fleeing religious persecution in their homelands. No religious group had the strength of numbers to dominant the new nation, so a compromise was struck in an effort to make sure that such domination could not occur. The compromise was a bit of, 'If my group cannot be the chosen church, then neither can any other!' Thus began the great 'lively experiment' (to use Sydney Mead's famous term) of religious free- dom in the new nation of America.

This brief comment refers to the stalemate that had developed between the Congregationalists in New England and the Unitarians of the Middle Atlantic States. Both would have preferred to be the state religion of the new nation, but neither could muster the political power to do so. Hence the 'great compromise' of the religion clauses of the First Amendment to the Constitution, which was drafted as a key part of the Bill of Rights in 1789, and finally ratified by the req- uisite number of states in 1791 (Miller and Flowers 1987:1-5). The language may have been that of Thomas Jefferson, but the concept was born of political stale- mate between equally powerful religious groups that were dominant in different parts of the newly formed nation.

T H E O R E T I C A L C O N C E P T S

There are a number of endogenous structural variables that relate in signifi- cant ways to the development and maintenance of religious freedom in modern societies. I will discuss several of these variables in what follows, including key characteristics of legal systems, as well as the continuing role of religious plural- ism in developing religious freedom. I will also discuss the application of some major concepts from the theoretical scheme of Donald Black (1976, 1999) to an understanding of the origins and maintenance of religious freedom. First, the role of the state itself needs examination.

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The Need for a Strong State Vermeulen (1998:49) makes an insightful comment about why the idea of

religious freedom gained traction during the time period of the religious wars in Europe:

These peace treaties were not concluded for purely moral reasons. A most convincing argument was that the only way to end a civil war fought for religious motives between equally 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...Only a strong state is able to guarantee religious freedom in a society torn apart by religious dis- sension.

This quote suggests a strong state asa crucial prerequisite for religious toler- ation and freedom. Vermeulen probably does not mean that a strong state guar- antees religious freedom, but instead seems to be asserting that a strong state was a necessary but not sufficient condition for the emergence of religious freedom. 2 Whether in modern times a strong state is required is an empirical question. But, the examples of the former Soviet Union and contemporary Communist China, not to mention certain Islamic states certainly demonstrate that a strong state can be antithetical to religious freedom. Also, some would characterize contem- porary America--a "strong s tate"has demonstrating a degree of intolerance toward minority faiths, accompanied by a seeming growing tolerance for estab- lishment of selected religious traditions and beliefs (Richardson 1995a; Hammond, Machacek, and Mazur 2004). This being said, it is difficult to imag- ine a society, particularly a pluralistic one, developing religious freedom without a strong state to enforce religious freedom.

Pluralism and Religious Freedom It is axiomatic that religious freedom is of interest only in religiously plural-

istic societies. If a society is homogeneous in terms of religion, then there usual- ly would be little concern about religious freedom within that society. If all agreed on religious matters, who would raise the question of rights of religious minori- ties, and why would it even be raised?

Having stated the axiom, we need to acknowledge that virtually all contem- porary societies are religiously pluralistic to some degree, which means that con- cerns about relŸ freedom issues exist in all modern societies (see Richardson 2004). At issue is the degree and type of pluralism that exists in a society and what effect that has on religious minorities trying to practice their religion open-

2See Edelman and Richardson (2003, 2005) for discussion of religious freedom in China, as well as the entire issue of Nova Religio 6 (2), 2003. See Shterin and Richardson (1998, 2000, 2002) and Richardson, Krylova, and Shterin, 2004) for discussion of religious freedom for minority faiths in Russia. For discussion of Islamic countries see Boyle and Sheen (1997).

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ly.30ne might predict some strong relationships between the degree and type of pluralism present in a society and the level of concem about religious freedom. Thus, for instance we might expect a society that is structurally quite pluralistic to have a relatively high degree of religious freedom in terms of both formal pol- icy and practical application of that policy. A strong and centralized political and/or religious establishment might repress religious minorities, of course, as we have seen in communist countries or under radical Islam regimes. That situation notwithstanding, we would posit a positive relationship in most modero societies between pluralism and religious freedom. For instance, if a highly pluralistic soci- ety in terms of religion did not have much religious freedom, then we would pre- dict that another institution such as the military or a political party was exercis- ing an inordinate amount of power in that society. We would also predict that, in such societies, a considerable amount of resources would have to be allocated to suppress religious practices of those groups which were not favored by the state. Such a situation seems to be the case now in China, with its pervasive efforts to suppress religious groups not sanctioned by the state (Edelman and Richardson 2003, 2005).

Of special interest in terms of the development of religious freedom are the former communist countries, most of which were relatively homogeneous in terms of religion, even if of different faiths, prior to the advent of communism in 1917 and then the later expansion of the Soviet Union after WWII. To varying degrees communism suppressed religion in those societies, accomplishing this impressively in East Germany, for instance, while failing miserably in Poland, where the Catholic Church managed even to augment its already prominent position in society during the communist decades.

Even before the fall of communism these societies were experiencing the effects of religious pluralism, as Western and Eastern cultural influences, includ- ing religious diversity, were being felt. But after the fall, a flood of new religions from the West arrived, and something akin to a new "rush hour of the gods" (McFarland 1967) developed within these societies, as citizens sought new answers to perennial questions of life and death. The old god of communism had fallen, and replacements were rapidly imported or developed from indigenous religions.

Into this spiritual maelstrom also came new exertions of formerly dominant churches, seeking their historical place of preeminence in their societies, such as in Russia with the Russian Orthodox Church (Shterin and Richardson 2000), but also in other nations in the region (see Richardson, 1997; and papers in

31 am aware of recent promising efforts to deconstruct the concept of pluralism into its several constituent parts (Beckford 2003). I will use mainly an approach herein that focuses on visible religious diversity of groups and individuals within a society. See Witte (2005:242) for the observation that structural pluralism underpins international norms of religious free- dom, as exemplified in a number of international accords.

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Borowik 1999, 2003; Borowik and Jablonski 1995; Borowik and Babinsky 1997; Borowik and Tomka 2001). Some formerly dominant and/or official churches in these societies, whose leaders supported the concept of religious freedom in the late 1980s and early 90s when still suffering under communist dominance, were no longer so certain that complete religious freedom is such a good idea. Or they wanted religious freedom to be defined in organizational terms and granted only to formerly dominant religions such as their own. These former church leaders now wanted to limit competition from the newer faiths, and assumed that this could be done by legal edict. These religious leaders had abandoned not only communism but one of the real truths of Marxism, that certain historical forces cannot be resisted.

Pluralism is an inexorable historical force that will continue to develop with- in the former communist world whether it is welcomed by dominant political and religious forces or not. This assertion is based in part on the ease of travel and communication in contemporary society which allows various religious groups to disseminate their message (Dawson and Cowan 2000) . Short of violent repres- sion, there is simply no way the growth of religious pluralism can be stopped, and even violent repression does not seem able to stop the spread of new religious ideas over the long-term. Contributing to this inexorable force is the fact that former communist societies are in effect already quite pluralistic in nature, even if unrecognized by societal leaders (Jagodzinski 1995).

Also, these societies have been infused with Western values, including that of religious tolerance, a process that was occurring even before the fall of com- munism, but was greatly accelerated by that event. These values include some degree of recognition of human and civil rights, including religious freedom. So, the combination of structural pluralism, that is the presence of many different and visible religious groups, coupled with the Westernization of values that include individual autonomy and religious tolerance means that former commu- nist countries will have a difficult time going back to the situation prior to the fall of communism, although it will not be for want 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 Richardson 2004), but also involving the spread of nontraditional versions of Christianity and so-called New Religious Movements (Shupe and Bromley 1994). This situa- tion has been particularly the case in recent years in France, Germany, and Belgium, although there have been some problems in other European societies as well. But, societies such as the Netherlands (Kranenberg 1994) seem relatively free of such difficulties, and Denmark as well, although the rise of Islam in these societies is severely testing that historical tolerance (Aries 2004; Singelenberg 2004; Rothstein 2004; Davie 2005).

Western European societies have been quite pluralistic for some time, and that trend continues. Some European leaders do not comprehend this develop-

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mentor its implication, or if there is an understanding, opt for trying to retain more homogeneity and religious and cultural "purity" than seems possible. Major battles have erupted over "new religions," sometimes called by the derogatory terms "cult" or "sect", as well as older religious minorities such as Jehovah's Witnesses. Severe restrictions have been placed on minority and new faiths in some Westem European countries, to such an extent as to have provoked inter- national comment and condemnation in some cases, such as with Germany, Belgium, and France (Introvigne 1998; Beckford 2004; Duvert 2004; Luca 2004; Fautre 2004; Introvigne 2004; Swantko 2004; Richardson and Introvigne 2001; Siewert, 2004; Aires 2004; Gunn, 2004). These developments in Western Europe have been used by some former communist countries to justify actions being taken to limit religious competition and re-establish formerly dominant church- es as defacto if not dejure state churches (see Shterin and Richardson 2000 on the Russian situation). This could be considered an example of a spatial or regional exogenous factor (Wejnert, 2005) that might influence the development of religious freedom in areas close to Westem European democracies.

One method for handling pluralism within the European context, which is influenced by its history of state sanctioned churches, is to develop a hierarchy of religions (Richardson 2001). Thus, some European societies arrange religious groups into lists, grouped into several different categories. Such a grouping might look like the following:

Table 1 Hie ra rchy o.f Religious Groups Used in Some Societies

OFFICIALLY SANCTIONED CHURCHES, ALLOWED FULL ACCESS AND ALL PRIVILEGES

OTHER ACCEPTABLE CHURCHES, ALLOWED LIMITED PRIVILEGES

ALL OTHER RELIGIOUS GROUPS, WITH FEW OR NO PRIVILEGES

ILLEGAL GROUPS, PUNISHED FOR BEING PRESENT AND ACTIVE

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Although the grouping of religious organizations within the separate boxes could vary over time and by society, it is possible to offer some important char- acterizations. For example, those religious groups in box 1 can have access to schools for religious education, to the military and prisons with chaplains, and they are often granted special tax status and state funding, as well as special leg- islation (a "concordant") granting them privileged status in the society. Groups in box two may be religious organizations that have a special status in other soci- eties of importance to the host society, or they may have historical status within the society. For instance, some European countries will grant a second level sta- tus to major religious organization that operate as major denominations within the U.S., or they may allow the Muslim community special privileges, such asa de facto recognition on polygamous marriages. Also, the Jewish faith may be allowed to function with some privileges, especially in the aftermath of WWII and the holocaust.

Those in box 3 have few privileges, and may not be allowed to own proper- ty or rent public halls, or proselytize for members. They might be allowed to meet in private homes and possess their religious materials and books, but little else. To violate these regulations may result in fines and even imprisonment. Those groups that fall into group 4 function underground, and rnay be subject to harass- ment by the authorities and others involved in self-help but officially sanctioned social control. These category 4 groups may be designated by the media and gov- ernment officials in quite derogatory terms, as part of social control efforts (Dillon and Richardson 1994; Richardson 1993a). Sometimes those in these lower categories may be told that they have to exist for a certain length of time and 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 control agents, either public or private, with more severe sanctions applying the lower one's group is in the particular hierarchy functioning in a given society. Thus, pluralism can be structured in a way that allows considerable social control to be exerted over selected segme'nts of that pluralism. This is a common pattern in Europe 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 of structural pluralism.

CHARACTERIZATIONS OF LEGAL SYSTEMS

Centralization and Pervasiveness Societies vary greatly in terms of the character of their legal systems, an

important consideration when discussing religious freedom. Some have legal sys- tems that are very centralized and pervasive, and which act upon many aspects of the lives of individuals, groups, organizations, and institutions within a society.

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There is an obvious distinction between modero and pre-modem societies in terms of centralization and pervasiveness. However, we can also discem 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 that touches virtually every person's life on a regular basis. But, when one considers religion and religious freedom within the context of the U.S., there are interest- ing historical and structural characteristics that represent limits to pervasiveness of the legal system in matters religious. Unlike many countries, the individual American states have considerable autonomy, thus placing some limits on the functioning of the federal legal system in the U.S. Although the federal legal sys- rem has supremacy, the varioª states can afford some protections for religious ideas and practices within there borders. 4 Also, as already noted, the Constitution of the United States affords considerable protection for religious beliefs and behaviors throughout the society. That protection is not absolute: for example, polygamy, snake handling, and use of LSD in religious services are all against the law in the U.S. (Finkelman 2000:462-464; Witte 2005:126-129, 167), but it is also quite legal to ritually sacrifice chickens in a religious service in the U.S., as indicated by a unanimous Supreme Court opinion just a few years ago (Witte 2005:126-129, 167), and it is also legal for open and aggressive proselytizing by smaller and newer faiths to take place on the streets of America, again repeated- ly affirmed by the nation's highest court (Cot› and Richardson 2001).

Religion does not serve in the U.S. as a valid shield against overt law-break- ing, although even a straight-forward appearing episode of violating a law takes on special meaning if claims are made that the person was acting out of religious motivations. Most cases involving such claims will receive special attention to ensure that the person's religious rights are not violated, thus offering some pro- tections for religi0usly motivated behavior. Therefore, the Constitutional pro- tection afforded religion through the First Amendment stands a s a bulwark against incursion of the state into things religious in the U.S. (Bromley and Robbins 1992). This makes it more difficult (but not impossible; see Richardson 1995a,b) for the state to exert control over retigion in general and over newer faiths, including the controversial ones that have caught the attention of the

4The ability of American 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 Religious Freedom Restoration Act (RFRA) which was designed to overtum the effects of Smith and affirm religious freedom asa primary value in American society. However, the U.S. Supreme Court ruled in 1997 in City of Boeme v. Flores that RFRA was itself unconstitutional, thus re- establishing Smith as law. This in turn led to a number of states passing "little RFRA" laws applicable only in a given state. See Richardson (1999a) for an analysis of the federal RFRA, and for discussion of state efforts to establish state-level RFRAs. See www.HSLDA.org, which has a discussion of state RFRA laws.

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media and the general public in recent decades. To exert such control is to limit the religious freedom of some groups and their practitioners (see Shupe and Bromley 1980; Hammond et al., 2004; McGraw 2003; Richardson 200la).

In most modero European countries constitutional protections exist for reli- gious freedom, or the nations have signed international accords guaranteeing religious freedom. However, the provisions do not have the same meaning and are not enforced in the same manner as in the U.S. This is mainly because there is nothing analogous in those documents to the anti-establishment clause that appears in the U.S. Constitution's First Amendment (Witte 2005:243). In large part this may be a function of the historical fact of official (and quasi-official) state churches having evolved within the European context. 5 In many European countries there is an officially sanctioned 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 Germany or the Netherlands, both of which have both Catholicism anda type of Protestantism enjoying official sta- tus.

In societies with an official church or churches there may be a tendency for the legal system to become involved in enforcing that official status. When this occurs the legal system may work with other institutions in the society to make sure that the official brand of religion is adhered to by citizens, and that nonoffi- cial religions are discouraged. In such situations a government may attempt to manage religion and the religious life of citizens to a considerable extent more than in other Westem 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 hada hierarchy of acceptable faiths, differentiating between those faiths in terms of status and privilege.

For instance, the legal systems of France, which has Catholicism and an "unofficial" religion, seems more prone to enforce normative behavior in the area of religion than is the case in the Netherlands, Denmark, or Italy (see Beckford 1985, 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 may develop between the political institution and the legal system over the issue of religious freedom. Such seems to be the case in Germany at present, where some minority faiths, including Islam, are under considerable pressure from political authorities (Seiwert 2004; Aires 2004), but have some protection afforded them

SA related consideration is that most Western European countries have a more developed "welfare state" that both supports citizens throughout their lives and encroaches into those lives to more depth than in some other societies, including the United State (Richardson 1986). This encroachment can and does involve things religious (Richardson and Introvigne 2001).

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because of a relatively autonomous legal system, a variable to which we now turn our attention. 6

Autonomy 7

A legal system may have more or less autonomy. Stated another way, in some societies judges are able to exercise more discretion in their decision making than is the case in other societies, a situation that could assist the development of a culture 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 a church 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 Executive Branch (the Presidency), as well as the Congress, through the process of having the power to declare laws passed by Congress unconstitutional, or being able to review actions of the Executive Branch for legality, as occurred in the infamous Watergate scandal of several decades ago.

Many Westem European societies have relatively autonomous legal systems, with the courts able, to varying degrees, to exercise independence from other institutional structures. Thus, we see the court systems of Italy, Germany, the United Kingdom, and a number of other countries able to function with consid- erable freedom from direct intervention by other institutional structures. There are variations in the autonomy of judicial systems among these European soci- eties with, for instance, France having a less autonomous judicial system than is the case with Italy, a situation with implications for the way minority faiths are dealt 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 Court. Kim Schepple (1999, 2003) describes how during the 1990s this court reg- ularly declared, with impunity, a significant proportion of the laws passed by the

6This analysis could be extended to incorporate transnational entities such as the Council of Europe, with its transnational judicial system, the European Court of Human Rights, which exerts authority over member states, including in the area of religious freedom. See Richardson (1995c), Evans (2001), and Richardson and Garay (2004) for discussions of reli- gious freedom cases dealt with by the ECHR, which could be thought of as an important "third party partisan," a concept from Black (1999) to be discussed herein.

7This and some following sections are expansions of ideas presented first in Richardson (200la).

8As noted in footnote 6, European countries are members of the Council of Europe, and thus have voluntarily given up some national autonomy by granting authority to the European Court of Human Rights.

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Hungarian Parliament unconstitutional. She also describes how its advice was sought by the Parliament as it considered new legislation. Thus, in a very short time, Hungary came to resemble some long-term democracies of the West in terms of the degree of autonomy granted its judiciary (see Richardson 1997a).

Once the top courts in a judicial hierarchy within a society achieve some degree of autonomy, this may empower other courts within that system. These lower courts may attempt to "measure up" to the autonomy of courts which are above them or which handle different relatively autonomous spheres of responsi- bility within the legal hierarchy (such as a state court systems and the separate federal bankruptcy or maritime courts which exist in the U.S.). A "culture of autonomy" can develop, making autonomy potentially generalizable throughout a legal system, with lower or different courts being emboldened to act with authority if other courts are able to exercise autonomous power. And, the citi- zenry, aware of the authority of the higher courts, may assume that lower courts share this mantle of autonomy; that is, citizens may tend to abide by court deci- sions more in societies where there is a culture of autonomy which involves a shared understanding that the courts do have independent power.

Sharply contrasted with high degrees of autonomy are situations where the courts serve only at the pleasure of despotic rulers, with its functionaries appoint- ed by such entities. One only needs to think of countries such as Iran and Libya, or courts functioning under communism to grasp this point. Judges in those cir- cumstances understand that they had little autonomy, and that if they chose to exercise autonomy their jobs if not their lives would be jeopardized. Judges under such systems understand that they are to assist in implementing an ideology, whether it be communism, radical fundamentalist Islam, or some other set of beliefs (see Shterin and Richardson 2002; Richardson, Krylova, and Shterin 2004 for examples from Russia).

Somewhere in between high autonomy and low autonomy societies are oth- ers whose legal systems have not achieved significant autonomy, but which have varying degrees of freedom to act independent of political, religious, or military institutions. Falling into this category are some of the societies that were under communism for so many decades. It is unrealistic to think that they would change ovemight into full-blown democracies, with legal systems functioning as they do in more advanced industrial societies in the West. Again, Hungary seems an anomalous case in this regard, but the historical circumstances of this "court- centric" approach taken by Hungary are quite unusual (Schepple 1999, 2003). 9

9Laszlo Solyom (2003), former President of the Hungarian Constitutional Court, writes about the pervasive influence of the German Constitutional Court on developments in Hungary, in what seems a good example of the influence of exogenous variables described in Wejnert (2005).

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To say that a society's legal system has autonomy does not mean, of course, that the legal system is free of all considerations of external influence, for courts must act within a cultural milieu, with its specific cultural values and beliefs, including ones conceming religion and religious groups. Thus, judges and other court personnel (which in some countries includes, quite importantly, individual citizens serving as jurors) are individuals who share to varying degrees the values and beliefs of that culture, and, not surprisingly, those personnel who make up the legal institutions act out those values as they do their work within those insti- tutions. Thus, one can have actors within completely autonomous legal systems acting in ways that to some observers seem quite normative and even in opposi- tion to basic human and civil rights. This could occur, not because of coercion of legal officials but simply because those filling roles within the legal system were acting out their values and beliefs in ways that were discriminatory (Richardson 2000).

Court systems in a society might implement racist values, for example, as some observers have said about the United States' legal system that incarcerates disproportionate numbers of Black men. Court systems might favor one ethnic group over another, granting a higher legal status to one group or another because of cultural values sanctioning such outcomes. The "Black Codes" and Jim Crow laws established in the U.S. after the Civil war illustrate this possibility (Woodward 1974), as do the legal structures developed in Nazi Germany toward Jews (Hilberg 1985). In the United States considerable bias against a minority faith can be shown in legal cases involving the surviving Branch Davidians, who were dealt with in almost a summary fashion in both the criminal and civil actions that followed the tragic episode outside of Waco, Texas in 1993 (Wright 2001; Richardson 2001b).

Most germane for our purposes here, legal systems might favor one religious heritage over others, granting practitioners of the chosen religion a privileged place and special treatment within a legal system. This is another way of saying that legal systems, even though they have considerable autonomy, might not support religious freedom for all citizens in a society, because of the implementa- tion of cultural values that denigrate certain religions while promoting others.

The consideration of cultural values can be demonstrated by considering the possible ways that the cultural value for religious freedom might relate to the variable of autonomy of legal systems. Higher levels of autonomy and more reli- gious freedom would be expected to occur together more frequently, as would cases of little religious freedom and low autonomy. This logic rests on the assump- tion that religious freedom for minority religions requires, among other consider- ations, an autonomous judiciary which is itself protected from external influ- ences. If jurists are not protected themselves, then understandably they would have difficulty protecting controversial or unpopular religious groups through their rulings.

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Adversarial Versus Inquisitorial Types of Legal Systems The differences between the adversarial legal system prevalent in the U.S.

and the inquisitorial legal systems found in most European countries and else- where also bear discussion. There are obvious ramifications of for how minority faiths are treated within the two types of legal systems. One major issue would he the importance to unpopular minority faiths of having an independent advocate (an important example of Black's "third party partisan:" see discussion below) for their position such as could be the case within an adversarial system of justice. Examination of the interaction of variables discussed in this paper, such as auton- omy of the legal system, with the type of legal system (adversarial versus inquisi- torial) could yield important insights. For instance, one might expect that the best of all worlds in terms of promoting religious freedom would occur with a re!- atively autonomous judiciary in a society with an adversarial legal system, espe- cially if the values of that society included an emphasis on religious freedom.

SOCIOLOGY OF LAW THEORIES

One can also characterize legal systems according to other variables, includ- ing who or what classes of people have access to the legal system for their private goals, a contingency with important ramifications for religious freedom. Donald Black's work in the sociology of law reveals that a number of structural variables impact access to law and the legal system, including, for instance, status and "intimacy," as weU as the partisanship of third parties (Black, 1976, 1999; Black and Baumgartner 1999). Black's work has direct application to the operation of religion freedom in a given society (Richardson 200la, 2004, chp. 1; 2005).

Status and Intimacy The higher the status of an individual of a group, the more prone they are to

make use of the legal system, and the more prone they are to be able to work their will when using the legal system. Whether or not those in high status positions support religious freedom will have significant impact on how religious freedom is defined and functions in a society. "Intimacy" refers to personal, attitudinal, and cultural closeness to participants in the legal institution, a variable obvious- ly often related to that of status. The higher the social and economic status, the more prone an individual is to having personal relationships--or at least sharing common values--with members of the legal system, which in tum may cause that system to be more responsive to the needs of such socially located people. Also, if higher status individuals or groups have intimate ties with minority religions and their adherents, this can dramatically impact how those minority faiths are treated in the legal system.

Plainly the variables of status and intimacy can work at cross purposes with the key variable of autonomy, even overcoming apparent autonomy on occasion. This might occur in regimes in which powerful political or religious figures can

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effectively dictate outcomes of legal actions, or even instigate legal actions them- selves, either privately or as an agent of a governmental agency, against individ- uals or groups viewed as problematic by those in power. We would hypothesize that autonomy of a legal system would be most easily overcome when those in high positions in the judiciary share cultural values with those in other high sta- tus positions in society with whom they are personally intimate.

We are not suggesting that autonomy is always overcome in such circum- stances. Indeed, another related hypothesis to show how these variables might relate in a manner demonstrating a high degree of autonomy would be the fol- lowing: If a legal system is truly autonomous, then that autonomy will negative- ly impact the intimacy shared by members of that system and other high status persons in other institutional structures. Also, in such situations the status of those in the legal system will be high relative to leaders of other institutional structures.

These and other possible hypotheses can be used to demonstrate how a soci- eties with various configurations of key variables treat small and unpopular reli- gious groups n o t a part of the dominant tradition of the society. A truly autonomous judiciary can defend itself against the actions and desires of high sta- tus individuals who might want to exert control over a given religious group. This would be easier, of course, in a context which included constitutional guarantees that had been deferred to historically and which enjoyed public support, a cir- cumstance indicative of a favorable cultural climate in which to defend religious freedom It would also be easier to exert autonomy in favor of the value of reli- gious freedom if judges in the judicial system knew that their decisions were sub- ject to review by external bodies, such as the European Court of Human rights (see note 6).

But, be reminded that earlier in the discussion of autonomy I discussed prob- lems that can arise if those in decision making positions within the legal system (usually judges, but also sometimes, especially in the U.S., juries) are biased about a given religious group, or do not share values conceming religious freedom (or they do not accept a claim that a party is in fact a "real religion"), lo This situa- tion could be exacerbated in societies with centralized and pervasive legal sys- tems. Thus the important Blackian variables of status and intimacy can interact with the issue of autonomy, centralization, and pervasiveness in ways that severe- ly limit religious freedom in a given society. They can also interact in a manner

l~ DeWitt, Richardson, and Warner (1996) and Pfieffer (1995, 1999) for experimen- tal studies showing the impact of bias and misinformation on the actions of potential jurors in "cult cases," and see Richardson (1991), Anthony(1990), Anthony and Robbins (1992), and G insburg and Richardson (1998) for discussion of some of these major cases involving "brain- washing" claims against so-called "cults." See Richardson (1996) for an examination of the diffusion of "brainwashing" ideology around the world, a situation that would seem to illus- trate Richardson and Ginsburg (1996) and Wejnert's (2005) process of diffusion.

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conducive to religious freedom, and being able to discern the differences between those two polar opposite situations would be important.

Third Party Partisans Third party partisans, another of Black's key concepts (Black and

Baumgartner 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, occasionally such groups may attract unlikely defenders. Some groups or individuals in a soci- ety who value religious freedom may come to the defense of minority religious groups and their practices. Within the U.S. groups such as the ACLU or the National Council of Churches might defend a minority faith's rights to believe and practice that religion, even though it was controversial and unpopular. On the international level there are a number of groups and organizations that some- times enter controversies over religious freedom, including NGOs such as Amnesty International, the Organization for Security and Cooperation in Europe (OSCE) (Gunn 2002), and pan-governmental organizations such as the European Court of Human Rights (Evans 2001).

In other situations political and other societal leaders may, for various reason defend unpopular groups. In Hungary, for instance, liberal members of Parliament sided with the Hare Krishna in battles over their right to receive revenues from the State, and this also may have affected the positive outcome in a major libel action the HK had brought against a prominent leader of the Reform Church in Hungary (Kamaras 1997; Richards0n 1997a). In the United States the filing of a large number of amicus briefs by major religious organizations on behalf of Reverend Moon in his appeal of his conviction for tax evasion is another promi- nent illustration of third party intervention (Richardson 1992b; H. Richardson, 1984). 11

Sometimes, however, third party partisans may align themselves with those who are attacking religious groups and working to limit religious freedom. When this occurs it places minority faiths at an even greater disadvantage than might otherwise be the case. When Westem anti-cult organizations allied in the 1990s with the Russia Orthodox Church and conservation politicians in Russia this resulted is great difficulties for non-Orthodox religious groups (Shterin and Richardson 2000). There have even been instances in Russia where the govern- ment took the role of a third party partisan in a civil action between parents of participants in minority religions and those religious groups (Richardson et al. 2004).

llThe involvement of professional organizations and individual scholars in legal battles involving controversial new religions also might be characterized as intervention by third party partisans (Richardson 1998a, 1997b).

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In the United States and Europe there has been an intervention by key rep- resentatives of the mental health profession in ways that limit religious freedom for some controversial religious groups, as participation in those groups has become defined as a mental health problem (Richardson, 1991, 1992a, 1993c; Richardson and Stewart 2004; Kilboume and Richardson 1984; Anthony 1990; Anthony and Robbins 2004). Also, child welfare workers have sometimes inter- vened in religious communities in very dramatic ways that include attempts to permanently remove children from their parents in the group (Swantko 2004, Richardson 1999b). In both examples the professionals can be thought of as third party partisans who have aligned themselves against the religious group, thereby potentially limiting religious freedom of such groups.

Discretion and the Rules of Evidence Several key sociological variables of importance to understanding how legal

systems operate have been described, especially as they relate to the use of the legal system asa social control mechanism for use with religious groups and prac- tices perceived as deviant within the greater society. Such social control can limit religious freedom.

Evidentiary issues, that is, rules and criteria for acceptance of evidence and the discretion involved in their application will be a focus of this brief section (see Ginsburg and Richardson 1998; Richardson 2000 for more detail). Problems concerning production and quality of evidence can arise in cases involving con- troversial groups and their alleged practices, even in societies with relatively autonomous legal systems anda cultural value of religious freedom. Evidentiary decisions can limit religious freedom of minority religions in society in a number of ways. Included would be decisions to admit or not certain kinds of evidence, as well as decisions to produce evidence to support a normative decision (Cooney 1994) or to refuse admittance of evidence that might be helpful to religious minorities.

Such discretionary decisions can occur because of cultural values that involve biases and stereotypes about such groups and practices. Courts seem more prone to allow (or even on occasion to encourage) problematic forms of evidence in cases involving marginal groups and practices so that the normative role of the judicial system can be exercised (Richardson 200la). This can occur because decision makers in legal systems can act out their prejudices and misinformation about such groups, based on their stereotypes. Decisions are sometimes made by judges to admit evidence that would not be admitted under other, more normal, circumstances. Also jurors are prone to accept questionable evidence when it supports notions that a strange and unpopular group has done something illegal, no matter how bizarre the allegations.

My contention is that legal systems, as they handle cases involving unpopu- lar religious groups and behaviors, may show considerable flexibility that enables them to function in a normative way, regardless of actual rules that might operate

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concerning what is and is not acceptable evidence. 12 Acting normatively means that controversial and unpopular religious groups would more often lose, and thereby experience an official and legally sanctioned diminution of their religious freedom.

Put another way, it seems clear that in any legal action the production of evi- dence is crucial: without evidence there is no basis for the case. And, it is justas clear that the production of evidence is a social process, subject to the operation of sociological variables such as those discussed above (Cooney 1994; Richardson, Gatowski and Dobbin 1995; Richardson and Ginsburg 1996; Gatowski, Dobbin, Richardson, and Ginsburg 1997). Production and acceptance in court of evidence against religious groups can operate to limit religious free- dom, such as in cases involving claims of "brainwashing" that have been used against some religious groups (Anthony 1990; Richardson 1991; Ginsburg and Richardson 1998), claims that a group is a "cult" (Pfeiffer 1995, 1999), or that a religious group is dangerous to others (Richardson 1993a, b, 2000; Dillon and Richardson 1994).

SUMMARY AND CONCLUSIONS

This analysis of the historical, socioiogical, and cultural contexts relevant to the development of religious freedom has attempted to demonstrate the value of integrating research from sociological studies of minority and new religions with theories from both the Sociology of Religion and the Sociology of Law. Following is a summary of how some of those ideas may be usefully applied to the treatment of newer and minority faiths in modero societies.

Given the centralization and pervasiveness of legal systems in the modero world, coupled with the growth of religious pluralism in modero societies, many legal actions will arise that involve newer and smaller religious groups. The amount may vary by society, but in all modero societies the legal system will be involved in exerting control over such religious groups and practices, a charac- teristic of such societies that can and does limit religious freedom. Observing the frequency and pattems of social control efforts applied to new religions and other minority faiths can reveal much about the values and organization of a society, as well as about 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

12I am not suggesting that minority faiths always lose legal actions in which they are involved. That is not the case, as the history of religious freedom cases in the U.S. demon- strates (Wybraniec and Finke 2004). However, when minority faiths do win in the legal arena this demands explanation, which could entail attention to the variables discussed herein. See Richardson (1991, 1995a,c, 1998b, 1999b; Bromley 1983, LeMoult 1983) for a discussion of "new religion" court cases, including some in which the new religions prevailed.

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share the values of tolerance and religious freedom. If so, then the inherent dis- cretion of any legal system can become a bulwark for religious freedom. The type of legal system also is important; in adversarial systems there is a greater chance that relatively powerless religious groups will attract assistance in their legal con- flicts. Also, the presence of enforceable constitutional and statutory provisions protective of religious freedom, as well as powerful third party partisans can be crucial to defending religious freedom in a society.

Status and prestige variables playa major role in decisions made within legal systems about newer faiths, including key evidentiary decisions that are made by the 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 an action brought by a smaller or newer group or its representatives. Thus, newer and 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 since key decision makers in the legal system may be unfamiliar with new and minori- ty faiths. Decision makers may share quite negative views of certain religious groups and their practices, and those views may have become hegemonic through negative media coverage and the actions of societal opinion leaders. Thus, the newer groups are not only strangers, they may become feared strangers, thought to require normative intervention by those decision makers who may assume that "messages must be sent" that the alleged behaviors and beliefs are not acceptable in normal society.

Those normative communications can be acted out in many forms, including the evidentiary decisions or any other discretionary action of judicial and legal systems. Such decisions may limit religious freedom under some of the conditions described herein. Third party partisans can also playa key role in how religious freedom is defined in a given society. If key groups and individuals attack religious groups and their practices and beliefs, then religious freedom will be limited. If third party partisans, including those extemal to a society, support minority reli- gious groups with their non-normative beliefs and practices, then religious free- dom will be more prone to flourish.

REFERENCES

Aires, W. 2004. Germany's Islamic minority: Some remarks on historical and legal develop- ments. In Regulating reli~on, edited by J.T. Richardson. 103-112. New York: Kluwer.

Anthony, D. 1990. Religious movements and brainwashing litigation: Evaluating key testi- mony. In In gods we trust, edited by T. Robbins and D. Anthony, 295-344. New Brunswick: NJ: Transaction Books.

Anthony, D. and T. Robbins. 1992. Law, social science and the 'brainwashing' exception in the First Amendment. Behavioral Sciences and the Law 10:5-30.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from

290 SOCIOLOGY OF RELIGION

Anthony, D. And T. Robbins. 2004. Pseudoscience versus minority religions: An evaluation of the brainwashing theories of Jean-Marie Abgrall. In Regulating religion, edited by J. T. Richardson, 151-178. New York: Kluwer.

Beckford, J. A. 1985. Cult controversies: The societal response to the new religious movements. London: Tavistock.

Beckford, J. A. 2003. Social theory & reIigion; Cambridge: Cambridge University Press. 2004. 'Laicit› 'dystopia,' and the reaction to new religions in France. In

Regulating religion, edited by J. T. Richardson, 27-40. New York: Kluwer. Black, D. 1976. The behavior of law. New York: Academic Press.

�9 1999. The social structure of right and wrong. New York: Academic Press. Black, D. And M.P. Baumgarmer. 1999. Toward a theory of the third party. In The sociology of

right and wrong, 95-124. New York: Academic Press. Borowik, I. 1999. Church-state relations in Central and Eastern Europe. Krakow: Nomos.

�9 2003. Religion, churches, and the scientific studies of religion: Potand and Ukraine. Krakow: Nomos.

Borowik, I. and G. Babinsky. 1997. New religious phenomena in Central and Eastem Europe. Krakow: Nomos.

Borowik, I. and P. Jablonski. 1995. The future ofreligion: East and west. Krakow: Nomos. Borowik, 1. and M. Tomka. 2001. Religion and social change in post-communist Europe. Krakow:

Nomos. Boyle, K, and J. Sheen. 1997. Freedom ofreligion and belief: A world report. London: Routledge. Bromley, D. 1983. Conservatorships and deprogramming: Legal and political prospects. In The

brainwashing/deprogramming controversy, edited by D. Bromley and J. T. Richardson, 267-294�9 Lewiston, NY: Edwin Mellen Press.

Bromley, D. and T. Robbins. 1992. The role of government in regulating new and unconven- tional religions. In The role of govemment in monitoring and regulating religion in public life, edited by J. Wood and D. Davis, 205-240�9 Waco, TX: Baylor University.

Cooney, M. 1994. Evidence as partisanship. Law and Society Review 28:833-858. Cot› E and J. T. Richardson. 2001. Disciplined litigation, vigilant litigation, and deforma-

tion: Dramatic organization change in Jehovah's Witnesses. Journat for the Scientific Study of Religion 40:11-26.

Davie, G. 2005. Pluralism, tolerance, and democracy: Theory and practice in Europe. Forthcoming in The new religious pluralism and democracy, edited by T. Banchoff. New York: Oxford University Press.

Dawson, L. and D. Cowan. 2004. Religion online. New York: Routledge. DeWitt, J., J. T. Richardson and L. Wamer. 1996. Novel scientific evidence in controversial

cases: A social psychological analysis. Law and Psychology Review 21:1-26. Dillon, J. and J. T. Richardson. 1994. The 'cult' concept: A politics of representation analysis.

SYZYGY: Journal of Alternative Religion and Culture 3:185-197. Duvert, C. 2004. Anti-cultism in the French Parliament. In Regulating reli~on, edited by J. T.

Richardson, 41-52. New York: Kluwer. Edelman, B. and J. T. Richardson. 2003. Falun Gong and the law: Development of legal social

control in China. Nova Religio 6(2):312-331. �9 2005. Imposed limitations on freedom of religion in China and the margin of

appreciation doctrine: A legal analysis of the crackdown on the Falun Gong and other 'evil cults'. Journal of Church and State 47:243- 268.

Evans, C. 2001. Freedom of religion under the European Convention on Human Rights. Oxford: Oxford University Press.

Fautr› W. 2004. Belgium's anti-sect policy. In Regulating religion, edited by J. T. Richardson, 113-126. New York: Kluwer.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from

THE SOCIOLOGY OF RELIGIOUS FREEDOM 291

Finkeman, P. 2000. Religion and American law: An encyclopedia. New York: Garland. Gatowski, S. I., S. A. Dobbin, J. T. Richardson and G. Ginsburg. 1997.The globalization of

behavioral science evidence about battered women: A theory of production and dif- fusion. Behavioral Sciences & the Law 15:285-306.

Ginsburg, G. and J. T. Richardson. 1998. 'Brainwashing' evidence in light of Daubert. In Law and science, edited by H. Reece, 265-288. Oxford: Oxford Press.

Gunn, J. 2002. The Organization for Security and Co-Operation in Europe and the rights of religion or belief. In Protecting the human rights and religious minorities in Eastern Europe, edited by P. Danchin and E. Cole, 222-250. New York: Columbia University Press.

�9 2004. Under God but not the scarf: The founding myths of religious freedom in the United States and laicit› in Dance. Journal of Church and State 46(1 ):7-24.

Hammond, P., D. Machacek and E. Mazur. 2004. Religion on trial: How Supreme Court trends threaten freedom of conscience in America. Walnut Creek, CA: Altamira Press.

Hilberg, R. 1985. The destruction of the European Jews. Rev. Ed. New York: Holmes and Meier. Homer, M. 2004. New religions in the Republic of Italy. In Regulating Reli~on, edited by J. T.

Richardson, 203-212. New York: Kluwer. Introvigne, M. 1994. The anti-cult movement in Italy. In Anti-cult movements in cross-cultur-

al perspective, edited by A. Shupe and D. Bromley, 171-198. New York: Garland. .2004. Holy mountains and anti-cult ecology: The campaign against the Aumist

religion in Dance. In Regulating religion, edited by J. T. Richardson, 73-84. New York Kluwer.

Jagodzinske, W. 1995. Religious pluralism in Westem Europe. In The future ofreligion: East and west, edited by I. Borowik and P. Jablonski, 7-27. Krakow: Nomos.

Kamaras, I. 1997. Devotees of Krishna in Hungary. In New religious phenomena in Central and Eastern Europe, edited by I. Borowik and G. Babinski, 325-340. Krakow: Nomos.

Kilbourne, B. and J. T. Richardson. 1984. Psychotherapy and new religions in a pluralistic society. American Psychologist 39:237-251.

Kranenborg, R. 1994. The anti-cult movement in The Netherlands: An unsuccessful affair. In Anti-cult movements in cross-cultural perspective, edited by A. Shupe and D. Bromley, 221-238�9 New York: Garland.

LeMoult, J. E. 1983. Deprogramming members of religious sects. In The brainwashing/depro- gramming controversy, edited by D. Bromley and J. Richardson, 234-257. Lewiston, NY: Edwin Mellen Press.

Luca, N. 2004. Is there a unique French policy of cults? A European perspective. In Regulating reli~on, edited by J. T. Richardson, 53-72. New York: Kluwer.

McFarland, N. 1967. Rush hour of the gods: A study of new religious movements in Japan. New York: MacMillan.

McGraw, B. 2004. Rediscovering America's sacred ground. New York: SUNY Press. Miller, R. T. and R. Flowers. 1987. Toward benevolent neutrality: Church, state, and the Supreme

Court. Waco: Baylor University Press. Pfeifer, J. 1995. The psychological framing of cults: Schematic representations and cult eval-

uation. Journal of Applied Social Psychology 22:531-544. Pfeifer, J. 1999. Perceptual biases and mock juror decision making: Minority religions in court.

Social Justice Research 12 (4):409-420. Richardson, H. 1984. Constitutional issues in the case of Rev. Moon. New York: Edwin Mellen. Richardson, J. T. 1986. Consumer protection and deviant religion. Review of Religious Research

28:168-179. 1991. Cult/brainwashing cases and freedom of religion. Journal of Church and

State 33:55-74.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from

292 SOCIOLOGY OF RELIGION

1992a. Mental health of cult consumers: Legal and scientific controversy. In Religion and mental heahh, edited by J. Schumaker, 233-244. New York: Oxford.

. 1992b. Public opinion and the tax evasion trial of Reverend Moon. Behavioral Sciences & the Law 10:53-65.

1993a. Definitions of cult: From sociological-technical to popular-negative. Review of Religious Research 34:348-356.

. 1993b. Religiosity as deviance: Anti-cult bias in the DSM. Deviant Behavior 14:1-20.

1993c. A social psychological critique of 'brainwashing' claims and recruitment to new religions. In Handbook of cuhs and sects in America, edited by J. Hadden and D. Bromley, 75-98. Greenwich, CT: JAI Press.

1995a. Legal status of minority religions in the United States. Social Compass 42:249-264.

. 1995b. Minority religions ('cults') and freedom of religion: Comparisons of the United States, Europe, and Australia. University of Queensland Law Review 18:183-207.

�9 1995c. Minority religious, religious freedom, and the new pan-European parlia- mentary and judicial institutions. JournaI of Church and State 37:39-59.

. 1996. 'Brainwashing' claims and minority religions outside the United States: Cultural diffusion of a questionable concept in the legal arena�9 Brigham Young University Law Review 1996:873-904�9

. 1997a. New religions and religious freedom in Eastern and Central Europe: A sociological analysis. In New religious phenomena in Central and Eastern Europe, edited by I. Borowik and G. Babinski, 257-282�9 Krakow: Nomos.

�9 1997b. Sociology and the new religions: 'Brainwashing,' the courts and religious freedom. In Witnessingfor sociology: Sociologists in court, edited by P. Jenkins and S. Kroll. Smith, 115-134�9 Westport, CT: Praeger.

�9 1998a. The accidental expert. Nova Religio 2:31-43. . 1998b. Law and minority religions: "Positive" and "negative" uses of the legal

system. Nova Religio 2:93-107 1999a. The Religious Freedom Restoration Act: A short-lived experiment in

religious freedom. In Religion and law in the global village, edited by D. Guinn, C. Barrigar, and K. Young, 142-164. Atlanta, GA: Scholars Press.

�9 1999b. Social control of new religions: From 'brainwashing' claims to child sex abuse accusations. In Children in new religions, edited by S. Palmer and C. Hardman, 172- 185. New Brunswick, NJ: Rutgers University Press.

�9 2000. Discretion and discrimination in legal cases involving controversial reli- gious groups and allegations of ritual abuse. In Law and religion, edited by R. Ahdar, 111- 132. Aldershot: Ashgate.

�9 200la. Law, social control, and minority religions. In Frontier Religions in Public Space, 139-168�9 Ottawa: University of Ottawa Press.

2001b. 'Showtime' in Texas: Social production of the Branch Davidian trials. Nova Religio 5:152-170.

.2004. Regulating retigion: Case studies from around the globe. New York: Kluwer.

.2005 Law. In Handbook of religion and social institutions, edited by H. R. Ebaugh, 227-240�9 New York: Springer.

2006. Religion, constitutional courts, and democracy in former communist countries. Forthcoming in The Annals of the American Academy of Political and Social Science .

Richardson, J. and A. Garay 2004. The European Court of Human Rights and former com- munist countries. In Religion and patterns of social transformation, edited by D.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from

THE SOCIOLOGY OF RELIGIOUS FREEDOM 293

Jerolimoc, S. Zrinscak, and I. Borowik, 223-234. Zagreb: Institute for Social Research.

Richardson, J. T., S. Gatowski and S. Dobbin. 1995. The production of scientific evidence. Presented at biannual meeting of Social Justice Research Conference, Reno, NV.

Richardson, J. T. and G. Ginsburg. 1996. The production and diffusion of scientific evidence: theoretical issues and hypotheses. Presented at annual meeting of Law and Society Association, Glasgow, Scotland.

Richardson, J. T. and M. Introvigne. 2001. Brainwashing theories in European Parliamentary and administrative reports on 'cults and sects.' Journal for the Scientific Study of Religion 40:143-168.

Richardson, J. T. and B. van Driel. 1994. New religions in Europe: A comparison of develop- ments and reactions in England, France, Germany, and the Netherlands. In Cult Movements in Cross-Cultural Perspective, edited by A. Shupe and D. Bromley, 129- 170. New York: Garland.

Richardson, J. T., G. Krylova, and M. Shterin. 2004. Legal regulation of religion in Russia: New developments. In Regulating religion, edited by J. T. Richardson, 247-258. New York: Kluwer.

Richardson, J. T. and M. Stewart 2004. Medicalization and regulation of deviant religion: An application of Conrad and Schneider's Model. In Regulating reli~on, edited by J. T. Richardson, 507-534. New York: Kluwer.

Rothstein, M. 2004. Regulating new religions in Denmark. In Regulating religion, edited by J.T. Richardson, 221-237. New York: Kluwer.

Schepple, K. L. 1999. The new Hungarian constitutional court. East European Constitutional Review 8(4):51-87.

Scheppele, K. L. 2003. Constitutional negotiations: Political contexts of judicial activism in post-Soviet Europe. International Sociology 18(1):219-238.

Shterin, M. and J. T. Richardson. 1998. Local laws restricting religion in Russia: Precursors of Russia's new national law. Journal of Church and State 40:319-342.

.2000. Effects of the western anti-cult movement in development of laws con- cerning religion in in post-communist Russia. Journal of Church and State 42:247-271.

. The Yakunin vs. Dworkin trial and the emerging religious pluralism in Russia. Religion in Eastern Europe 22(1):1-38.

Shupe, A. and D. Bromley. 1980. The new vigilantes. Beverly Hills, CA: Sage. �9 1994. Anti-cult movements in cross-cultural perspective. New York: Garland.

Siewert, H. 2004. The German Enquete Commission on sects: Political conflicts and com- promises. In Regulating reli~on, edited by J T. Richardson, 85-102. New York: Kluwer.

Singelenberg, R. 2004. Foredoomed to failure: The anti-cult movement in the Netherlands. In Regulating reli~on, edited by J. T. Richardson, 213-220. New York: Kluwer.

Solyom, L. 2003. The role of constitutional courts in the transition to democracy. Intemational Sociology 18:133-161.

Swantko, J. 2004. The Twelve Tribes messianic communities, the anti-cult movement, and governmental response. In Regulating religion, edited by J. T. Richardson, 179-202. New York: Kluwer.

Vermeulen, B. 1998. The historical development of religious freedom. In Religious freedom and the new millennium, edited by D. Fefferman, 49-51.Falls Church, VA: The International Coalition for Religious Freedom.

Wejnert, B. 2005. Diffusion, development, and democracy. American Sociolo~cal Review 70: 53-81.

Witham, L. 1997. Austria law puts faiths in recognition limbo: Strict law sets up second-class religions. Washington Times. Thursday, Dec. 11: Al, Al2.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from

294 SOCIOLOGY OF RELIGION

Witte, J. 2005. Religion and the American constitutional experiment, 2nd edition. Oxford: Westview Press.

Woodward, C. V. 1974. The strange career ofJim Crow. New York: Oxford U. Press. Wybraniec, J. and R. Finke. 2004. Religious regulation and the courts: The judiciary's chang-

ing role in protecting minority religions from majoritarian rule. In Regulating Religion, edited by J. T. Richardson, 535-554. New York: Kluwer

Wright, S. 2001. Justice denied: The Waco civil trial. Nova Religio 5:143-151.

at RM

IT U

niversity Library on Septem

ber 4, 2014http://socrel.oxfordjournals.org/

Dow

nloaded from