Hegemonic Religions, Majoritarianism, and the Legitimate Limits of Governmental Religious Bias

Abstract

Recent major court decisions and important political events in democratic countries demonstrated, explicitly or implicitly, governmental bias in favor of a given religious tradition. Some prominent cases include the Swiss minarets ban of 2009, the 2011 ECtHR decision in the Lautsi case (Lautsi vs. Italy (2011) Application No. 30814/06) as well as the recent decision of the U.S. Supreme Court in the American Legion v. American Humanist Association case (No. 17-1717, 588 U.S. (2019), legitimizing the usage of public funds to maintain the Maryland Bladensburg Cross. Major scholars, such as David Miller, Joseph Weiler, and Cecile Laborde suggested a novel, detailed argument, justifying the rights of majorities in given countries to structure religion–state institutions following the majority religion, as long as the rights of minority communities and individuals are upheld. The aim of the current article is twofold: First, in section one, we shall attentively define the ‘religious majoritarian approach’ (RMA), that upholds the presumed rights of majorities to structure religion–state institutions according to the majority-religion. The core features of the RMA will be defined, and three pre-conditions the model requires in order to ‘fit’ any given case will be described (‘shared understanding’; ‘tradition’ and ‘democratic challenge’). Second, in section two, once we have a precise understanding of the RMA, to suggest a critical discussion of this approach. For the sake of the argument, and in order to enable a proper conversation with RMA proponents, this article will not assume that the RMA is illegitimate to begin with, as would be the case if our starting point would have been some version of liberal-neutrality. Rather, the main critical argument will be that the positive case for the RMA is under-studied. In ‘positive’, it would mean here the arguments for the RMA, rather than focusing on the mere permissibility of it. After all, if a government wishes to adopt a certain policy, it is not sufficient to argue that it does not violate certain moral or legal standards, rather, the citizens of said country would like to know what is the utility of this policy? What does it attempt to achieve? How is it justified? The ‘positive’ examination of the RMA will be divided into two categories: The first, examining the merits and plausibility of the pre-conditions and the arguments made by RMA scholars themselves. Therefore, in cases in which they are not met, the RMA should be rejected according to the RMA itself. The second is to confront RMA models with further critiques and difficulties, focusing on concerns raised regarding the entanglement between religion and state that the RMA entails, from the perspective of both religion and government. Somewhat schematically, we can label the former critique as ‘internal’, and the latter as ‘external’.