The right to freedom of religion in education: religion as a secular blasphemy?

In the beginning of the strong development of human rights in the mid-20th century, rights were interpreted creatively as a tool towards the liberation of people and the protection of human dignity'. It quickly became clear that the implementation of this idea was not as simple: human rights can be perverted; they can be translated in the power to maintain the status quo and privileges, as mentioned.

Engaging with the right to religious freedom presupposes a degree of clarity on the recurring question of the limits (and defense) of religious and inter-connected cultural practices in the process of exercising human rights. Freedom and respect for religious difference depends on one’s understanding of religion. Similar to culture,[1] however, religion resists definition because it appears contested, fluid, dynamic and evolving. At the same time, religion has often been perceived within human rights law discourse as premodern, a hindrance to progress, as primitive or as backward, in order to justify lack of human rights exercise, to the exclusion of other political, socio-economic or structural factors.

But as we are gradually moving away from the notion of‘Kultur’ as an instrument stressing national boundaries and national identities, and in the light of migratory movements and national and transnational legal processes, it would be more accurate to analyze legal systems as they relate to religious freedom(s) as “unbounded, contested, and connected to relations of power”.

In the European space, for instance, the notion and concept of religion as a protected identity marker has known expansive development. A typical illustration of this expansion is evident in the ways in which the European Union (EU) has engaged with religion in law and policy. Despite the lack of an express competence, religious affairs have been affected in the EU by the 1999 Treaty of Amsterdam and the connected directives guaranteeing non-discrimination and other fundamental rights. With the help of alternative strategies, religious identity has entered the frame of EU consideration while connected to employment, education, culture or the integration of third-country nationals.

Essentially, there are three main trajectories through which religion has been gaining a more central position in the Union: (European) citizenship, nondiscrimination and immigration. Within the Treaty on the Functioning of the EU (TFEU), Article 17(3) formalized a previously informal exchange by calling the EU to recognize religious groups and maintain an open, transparent and regular dialogue with these churches and organizations.

The increasing importance of religious actors as ‘agents’ shaping the conditions of the socio-legal exercise of the right to religious freedom is thus acknowledged,

The concepts 37 even in the absence of a firm legal basis for action. Similar to other contexts, religion is lacking here, too, a commonly agreed definition.[2]

The EU Charter of Fundamental Rights includes the relevant Articles 10 (on freedom of thought, conscience and religion), 21 (on non-discrimination) and 22 (on cultural, religious and linguistic diversity). These legally binding provisions reflect the net of protection of religious freedom available in other supranational fora, for example, the Council of Europe’s European Convention on Human Rights, imposing the obligation on States and EU institutions to respect their content when acting within the scope of EU law.

It is also interesting to stress how religion was introduced in the EU’s public sphere and agenda, as Carrera and Parkin show in their work, in connection with immigration. They argue that this connection signified a treatment of religion as a ground for exemption from recognized European rights and freedoms to third-country nationals. Instead of raising a shield of protection, religious difference was interpreted, especially for non-Christian religions, as an inhibiting factor towards integration, a resistance to liberal democratic values justifying the right of Member States to use integration requirements to limit access to EU legal protection.

Within this framework, the question of what constitutes ‘common values’ surfaces: ‘neutral’ liberal norms usually fit the context of the term. The debate on values, as case studies examined later will further confirm, is a recurring one at both the national and supra-national levels. Yet, the notion of values does not spell out the mutual adjustment duties between the Autochthonous European and the Migrant ‘Other’.

Returning to religious freedom(s), the 20th century, often called the century of secularization in Europe, proved misleading with respect to religion. Since the late 1970s, a so-called religious revival began and, certainly following 9/11, religion is firmly back on the public agenda as a social force or a source of tensions.

Despite the lack of conceptual clarity as a term, religion appears to work on many levels, including in the present analysis: as a constructed (legal) category, it represents a system of beliefs and norms but also provides the space for one’s questions on the nature of human existence and its purpose.[3] The many meanings of religion in contemporary terms lead also to a more nuanccd understanding of the evolution of religiosity in Europe: there is a multitude of parallel processes underway in this respect, that, among others, include the transfer of religious property and institutions to the State, the decline of personal religiosity, the transformation of religious views into cultural ones, or the decreasing levels of commitment to religious institutions. Grace Davie’s concept of “'believing without belonging”, for example, adequately describes the low level of church commitment of Britons with the large diffusion of faith in the 20th century, although the opposite - “belonging without believing”- may also apply in conditions where religions lead social networks (e.g. in some Islamic mosque communities in Europe). The work of José Casanova, taken as another example, demonstrated how religious associations seek public presence, taking a more communal form within a process that is labeled ‘deprivitization’.’

The legal interpretation of religion as a right, however, calls for, at least, an attempt to even indirectly define the term. Across a variety of jurisdictions, we are currently witnessing a phase of use of a variety of criteria to remedy the lack of a universally valid legal definition of the term: sincerity of belief, centrality of contested practice to the faith in question, or shared public understanding, are some of them as mentioned. At the same time, religious influence on law- and policy-making has grown as an independent area of inquiry, with both political as well as socio-economic ramifications. This growth of interest incidentally suggests and confirms that religious actors are in a position to openly influence the formation and implementation of law, including within ‘secular’ (Western)

The concepts 39 societies.[4] The power and appeal of religious organizations are based on their mobilization potential, which in turn relies on the level and type of religiosity of their adherents. In the framework of public education, this translates into very specific resources and preferences on the level of religious diversity desired and ways to pursue it, depending on the context of each case.

According to Fink, essential considerations when assessing the broader framework of (in)actions of religious organizations and individuals, and the features of such agency that are determining are the legal provisions regulating church-state relations, as well as the cultural assumptions and developing trends on the socially expected role of religion in public life. Although often, particularly in relation to strategic decisions, religious actors’ decisions are tightly linked to their organizational survival, the dimension of their role as social and corporate actors implies broader involvement than that of a cultural variant. This is particularly so in a climate of increasing visibility' of religious divides, with clearer linkages articulated between attitudes to immigration, value orientation and religiosity.

Within this context, religious education in the 21st century is struggling to address conflicting trends: educating students towards religious diversity may entail a religious pluralization of the curriculum in the direction of a post-religious comparative introduction to the various religious traditions and other worldviews and at the same time a deepening of the knowledge of one’s own faith. In light of the overlap between faith and culture, the task is not a minor one in a constantly evolving landscape of our relation to both faith and secularization. The option of ‘educating into religion’ as opposed to that of ‘educating about rcligion(s)’ attempts to find the right balance in the quest for a better understanding of religious plurality', with or without the use of confessional religious education courses. Ultimately, the goal remains to address the religious illiteracy of learners as an alternative to confrontation or mere tolerance.5

Institutional actors, such as teachers and faith organizations themselves, operationalize policy and legal frameworks while bringing in their own agendas and predispositions. The trifold role of teachers, in particular, as experts in religious knowledge, as witnesses to the one tradition where they belong/believe, and as moderators of the interreligious exchange in the classroom,[5] in the context of a development of reflexive religious identities appears paramount for the successful implementation of any policy. It is also often the part of the equation that is most neglected in both secular and ‘faith schools’.

Contemporary approaches to education in general in the Western world, but very evident in Europe, tend to emphasize the creation of a frame for the integration of diversity and promote social instruments that allow them to exist within super-diverse societies. In many cases, it is possible to argue for the need of a paradigm shift that treats immigrant learners as ‘resources’, instead of ‘liabilities’. This paradigm shift, however, based on an intercultural approach to education, continues to pose a number of challenges, beyond Europe as well, on how to transform religious otherness (as often connected to migration) to an “object of knowledge”.

Teaching religion in government-funded education represents thus a challenge in a variety of ways: depending on the approach privileged in each setting, every teacher has to engage with notions of tolerance and respect, with values, with her/his own self-restraint in order to not exploit the learners’ vulnerability and with sensitivity to objectivity and against indoctrination. A post-secular interpretation of religious education would suggest treating religious identity as ‘a matter of faith rather than knowledge’, leading implicitly, however, to the treatment of religious beliefs as controversial. As crucial, in multicultural contexts, it is the expectation that the learning process on religion will yield an understanding of how to share social space with those holding different or no beliefs and with whom one disagrees.

  • [1] Sally Engle Merry, ‘Human Rights Law and the Demonization of Culture (and Anthropology Along the Way)’, in Polar: Political and Legal Anthropology Review, 26(1), May 2003, 55-76 at 62. 2 On this point see Merry (2003) at 74. 3 Merry (2003) at 76. 4 See Declaration 11 of the Treaty that “The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States” [EU Declaration on the Status of Churches and Non-Confessional Organizations No. 11 to the Last Act of the Treaty of Amsterdam, O.J. 10/111997, 133]. 5 Sergio Carrera and Joanna Parkin, ‘The Place of Religion in EU Law and Policy: Competing Approaches and Actors Inside the European Commission’, Religare Working Document No. 1, September 2010, at 1.
  • [2] With the exception of Article 10(1) of Directive 2004/83/EC on the status of third-country nationals or stateless persons as refugees which approaches religion as “the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief”. 2 Carrera and Parkin (2010) at 16. 3 Carrera and Parkin (2010) indicatively discuss the transposition of Directive 2003/86/EC on the right to family reunification COM(2008)610, 8 October 2008 and the connected case C-540/03 Parliament v. Council (2006) ECRI-5769 that both confirm the requirement for states to meet the general objectives of the directive and those of fundamental rights principles of EU law before imposing restrictions on this category of individuals. 4 The notion of European values appears to hold a central position in the discourse of the European Commission on the integration of migrant communities, without defining what those values are or to what extent they are shared among Member States. See the European Pact on Immigration and Asylum of 2008, Council of the EU, 13440/08, Brussels, 24 September 2008. 5 While it has been mentioned that the EU’s religious identity framework acknowledges the growing agency of religious actors, it neglects minority faith groups resulting in the overrepresentation of Christian actors, without due consideration to the overlapping marginalization, poverty and discrimination connected with non-majoritarian faith groups. (Cf. Carrera and Parkin (2010) at 27.)
  • [3] Ryan T. O’Leary, ’The Irony of the Secular: Violent Communication at the Limits of Tolerance’, Journal of Religion, Conflict and Peace, 3(2), Spring 2010, at 2, available at www. 2 Hans G. Kippenberg, ‘Europe: Area of Pluralization and Diversification of Religions’, Journal of Religion in Europe, 1,2008, 133-155 at 149. 3 Grace Davie, Religion in Britain Since 1945: Believing Without Belonging, Oxford: Black-well, 1994. 4 Kippenberg (2008) at 151. 5 José Casanova, Public Religions in the Modern World, University of Chicago Press, 1994. 6 Veit Bader, ‘Post-Secularism or Liberal Democratic Constitutionalism?* Erasmus Law Review, 5( 1 ), 2012, 5-26 at 7. He particularly discussed the Canadian case Syndicat Northcrest v. Anselem (2004) SCC 47; (2004) 2 S.C.R. 551 where the Court explains ‘sincerity of belief in length.
  • [4] Simon Fink, ‘Churches as Society Veto Players: Religious Influence in Actor-Centred Theories of Polity-Making’, West European Politics, 32( 1 ), 2009, 77-96 at 77. 2 Fink (2009) refers to these adherents as ‘voters’ at 78. He defines “mobilization potential”, as “the ability of a church to mobilize its adherents for political action, such as collective action in the form of protests or voting behaviour”. 3 Fink (2009) at 84, despite diverging opinions in literature discussed on whether a closed or more remote connection to the State may increase the impact of religious actors in governance. 4 Fink (2009) at 90. 5 Hajo G. Boomgaarden and André Freire, ‘Religion and Euroscepticism: Direct, Indirect or No Effects?’ West European Politics, 32(6), November 2009, 1240-1265, at 1240. 6 Boomgaarden and Freire (2009). 7 Lieven Boeve, ‘Religious Education in a Post-Secular and Post-Christian Context’, Journal of Beliefs and Values, 33(2), August 2012, 143-156 at 144. 8 Boeve (2012) refers to these parallel dynamics as “post-Christian” and “post-Secular”. 9 Mike Castelli, ‘Faith Dialogue as a Pedagogy for a Post Secular Religious Education’, Journal of Beliefs and Values, 33(2), August 2012, 207-216 at 208.
  • [5] Boeve (2012) at 154. 2 Nathalie Muller Mirza, ‘Civic Education and Intercultural Issues in Switzerland: Psychosocial Dimensions of an Education to “Otherness”’, Journal of Social Science Education, 10(4), 2011,31-40 at 31. 3 Mirza (2011) at 32. 4 Mirza (2011) at 32. 5 In the words of Trevor Cooling: “To teach as settled something that is controversial is indoctrination and to teach as controversial something that is settled is irrational”. [Cf. Trevor Cooling, ‘What Is a Controversial Issue? Implications for the Treatment of Religious Beliefs in Education’, Journal of Beliefs and Values, 33(2), August 2012, 169-181 at 170.] 6 Cooling (2012) at 174. 7 Cooling (2012) at 177.
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