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

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<ul><li><p>Sociology of Religion 2006, 67:3 271-294 </p><p>The Sociology of Religious Freedom" A Structural and Socio-Legal Analysis </p><p>James T. Richardson University of Nevada, Reno </p><p>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 </p><p>INTRODUCTION </p><p>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 </p><p>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 </p><p>* Direct correspondence to:James T. Richardson, Judicial Studies, University of Nevada, Mail St@ 31 l, Reno, Nevada 89557. E-mail: jtr@unr.edu. 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. </p><p>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. </p><p>271 </p><p> at RM</p><p>IT U</p><p>niversity Library on Septem</p><p>ber 4, 2014http://socrel.oxfordjournals.org/</p><p>Dow</p><p>nloaded from </p><p>http://socrel.oxfordjournals.org/</p></li><li><p>272 SOCIOLOGY OF RELIGION </p><p>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. </p><p>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. </p><p>IN THE BEGINNING </p><p>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: </p><p>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. </p><p>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 </p><p> at RM</p><p>IT U</p><p>niversity Library on Septem</p><p>ber 4, 2014http://socrel.oxfordjournals.org/</p><p>Dow</p><p>nloaded from </p><p>http://socrel.oxfordjournals.org/</p></li><li><p>THE SOCIOLOGY OF RELIGIOUS FREEDOM 273 </p><p>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. </p><p>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..." </p><p>I have elsewhere commented on how this clause came to be a part of the Constitution (Richardson 2001 a: 161, n 2): </p><p>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. </p><p>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. </p><p>T H E O R E T I C A L C O N C E P T S </p><p>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. </p><p> at RM</p><p>IT U</p><p>niversity Library on Septem</p><p>ber 4, 2014http://socrel.oxfordjournals.org/</p><p>Dow</p><p>nloaded from </p><p>http://socrel.oxfordjournals.org/</p></li><li><p>274 SOCIOLOGY OF RELIGION </p><p>The Need for a Strong State Vermeulen (1998:49) makes an insightful comment about why the idea of </p><p>religious freedom gained traction during the time period of the religious wars in Europe: </p><p>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. </p><p>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. </p><p>Pluralism and Religious Freedom It is axiomatic that religious freedom is of interest only in religiously plural- </p><p>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? </p><p>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 rel 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- </p><p>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). </p><p> at RM</p><p>IT U</p><p>niversity Library on Septem</p><p>ber 4, 2014http://socrel.oxfordjournals.org/</p><p>Dow</p><p>nloaded from </p><p>http://socrel.oxfordjournals.org/</p></li><li><p>THE SOCIOLOGY OF RELIGIOUS FREEDOM 275 </p><p>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). </p><p>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. </p><p>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. </p><p>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 </p><p>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 observ...</p></li></ul>

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