Comparative Constitutional Law & Religion

The rule of law and the rule of God - two of the most powerful ideas of all time, an “odd couple” of sorts, diametrically opposed in many respects, yet at the same time sharing strikingly similar characteristics, each with its own sacred texts, interpretive practices, and communities of reference - seem destined to collide. Their charged encounters are further accentuated by the intersection of two broad trends: the return of religion to the forefront of world politics and global convergence to constitutionalism. Religion and the belief in God have made a major comeback. From the fundamentalist turn in predominantly Islamic polities to the spread of Catholicism and Pentecostalism in the global south, and from the increase in religiously devout immigrants in Europe to the rise of the Christian right in the United States, it is hard to overstate the significance of the religious revival in late twentieth and early twenty-first century politics. At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Constitutional supremacy - a concept that has long been a major pillar of the American political order - is now shared, in one form or another, by over one hundred and fifty countries and several supra-national entities across the globe. In this chapter (forthcoming in Tom Ginsburg and Rosalind Dixon, eds., The Research Handbook in Comparative Constitutional Law, Edward Elgar, 2011) I delineate two key aspects of the tense intersection of constitutional law and religion worldwide: (i) the range of constitutional models - from atheism or strict separation to full enshrinement - for arranging “religion and state” relations; and (ii) the main types of religion and state constitutional controversies as they have manifested themselves under each of these models over the last few decades. Because the constitutional status of religion varies considerably across constitutional models, there appears to be more cross-country divergence in the comparative constitutional jurisprudence of religious freedom than with respect to most other freedoms. I identify the main existing constitutional models for arranging the relationship between state and religion, and, where applicable, and illustrate each model’s unique features by reference to landmark court rulings that define the rules of engagement between state and religion in each setting.

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