Immunity or Regulation? Antinomies of Religious Freedom

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Summary

Immunity or Regulation? Antinomies of Religious Freedom

• The right to religious liberty is often assumed to be a neutral legal instrument designed to protect the right of individuals and groups, particularly religious minorities, to practice their beliefs freely without state coercion and threat of social discrimination.
• At issue is the European formulation of the right to religious liberty—also enshrined in Egyptian law—that distinguishes between the right to “freedom of thought, conscience and religion” in Article 9(1) and the right to “manifest one’s religion or beliefs” in Article 9(2) of the European Convention on Human Rights (ECHR).
• Following the recent critical scholarship on secularism, their assumption throughout this essay is that the secular and the religious are not opposites of each other but are closely intertwined in paradigmatic ways in modern nation-states (see, e.g., Agrama 2012; Asad 2003; Baubérot 2000; Connolly 1999; Keane 2007; Taylor 2009).
• Unlike Judaism and Christianity, which the Egyptian state formally recognizes, the practice of the Bahai faith is prohibited in Egypt, a ban that places certain limits on the civil and political rights of the Bahais.

Regulation or Recognition?

• Things came to a head for Egyptian Bahais in 2004 when the government computerized the system that issues national identity cards (Human Rights Watch and Egyptian Initiative for Personal Rights 2007).
• National identity cards, while crucial to the conduct of civil and political life, had been issued irregularly in the past, and local officials often allowed for the Bahai religion to be recorded on the cards.
• Centralizing the system produced a crisis when state computer programs did not allow for a “Bahai” entry, thereby alerting local officials of the legal violation.
• The government requirement also created a new vigilance among the employees of the Ministry of the Interior and its Civil Status Department (CSD) in relation to the presence of the Bahais as a demographic entity in Egypt that was unprecedented.
• Unable to 136 The South Atlantic Quarterly Winter 2014 proceed with their daily life, these Bahais took their case to administrative courts to challenge the decision of the Ministry of Interior and CSD.12.

Administrative Court of Justice on Bahais’ Religious Liberty

• Among these was a case brought by Husam Izzat and his wife, Ranya Rushdie.
• Notably, in the passage above, the court upholds the position that Bahaism is not a legitimate religion in the eyes of the state, but makes a crucial distinction between the unrecognizability of the Bahai faith in the realm of religion and their recognizability in the realm of civil affairs.
• While the 138 The South Atlantic Quarterly Winter 2014 court grants that non-Muslims lived under Muslim rule in which they were allowed to hold their religious beliefs, it also asserts that this does not mean that Muslims and non-Muslims are equal in the eyes of the state with respect to their rights and obligations.
• Even if the state doesn’t recognize my faith, you cannot commit me to a ‘civil death’—I cannot even open a bank account without an identity card.

Appeal to the Supreme Administrative Court

• Having granted this right, the SAC goes on to distinguish between the right to believe and the right to express this belief in public: “As to the freedom of practicing religious rites, this is subject to the limitation . . . of respecting the public order and public morals.”.
• This contradicts the lower administrative court’s earlier decision (AC 2006a) that had permitted the Bahai religion to be listed on the identity cards precisely as a way to limit its open practice and manifestation in public.
• What is so challenging and difficult in the reasoning of the SAC 2006b judgment is the genuine ambiguity and oscillation between what exactly constitutes the forum internum and what the state should recognize or limit in the forum externum.

Another Tactic?

• The SAC decision was widely condemned by human rights organizations in Egypt, and global Bahai networks mobilized to put pressure on the Egyptian government to address this discriminatory ruling.
• It was precisely this contradiction that opened a window for the human rights organization Egyptian Initiative on Personal Rights (EIPR) to intervene on behalf of another Bahai family, the Rauf Hindi family, whose case was at the time pending in a lower administrative court.
• In an interview, a leading lawyer for this case commented, “This was a pragmatic decision on their part.
• The authors are principally opposed to the state requirement that Egyptians should have to declare their religious affiliation on government documents.

In keeping with the principle of not forcing any citizen to embrace a divine religion . . . issuing a national identity card with no space for religion or with a symbol indicating that he does not belong to any of the three divine reli-

• Gions . . . would conform with the law and reality.
• Scholars of Islamic law have increasingly come to argue that the nature of what used to be called “sharia” has radically changed in the modern period.
• On the one hand, the Egyptian constitution upholds the principle of formal equality between Muslims and non-Muslims, but on the other hand, in invoking the classical concept of “People of the Book,” Egyptian courts conjure a world in which Muslims were formally and substantively superior to non-Muslims.

The Dialectics of Right and Public Order in ECHR Jurisprudence

• From an international and comparative legal perspective, what is most striking about the judgments in the Bahai cases is how the logic and structure of their reasoning bears a close similarity to the religious freedom jurisprudence of the European Court.
• As already noted, the right to religious liberty in the ECHR, like the Egyptian tradition, is premised on distinguishing between the right to “freedom of thought, conscience and religion” and the right to “manifest one’s religion or beliefs” (Articles 9[1] and [2], respectively).
• The dialectic structure between the forum internum and forum externum has generated two dilemmas for the European Court.

As many scholars have observed, the Grand Chamber’s judgment

• What again is striking here is how the US Supreme Court in Hosanna-Tabor draws a remarkably similar distinction to the one advanced by the European Court to justify its contradictory rulings in Lautsi and Dahlab.
• The case thus involved not a limitation on the right to freedom of belief on the basis of public order as suggested by Judge Martens but a genuine conflict of rights between the freedom of the proselytizer to manifest her religion and the freedom of the target of proselytism to have or maintain her religion without being subject to proselytism.
• As the state commissioner’s report concludes, any law requiring Bahaism to be identified in the “religion” field of identity cards is unconstitutional because it infringes on “the public order and morals in which Egyptian society is rooted and on which it is built in all its parts.”.

Conclusion

• 11 Hussein Agrama’s (2012) work shows that this equally applies to cases pertaining to Muslims when it comes to regulating their religious affairs.
• 14 The Supreme Administrative Court case no.
• University of California Press, also known as Berkeley.
• State Law as Islamic Law in Modern Egypt: The Incorporation of the Shari‘a into Egyptian Constitutional Law. Leiden: Brill.

Full text

University of Maryland Francis King Carey School of Law University of Maryland Francis King Carey School of Law
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Immunity or Regulation?: Antinomies of Religious Freedom Immunity or Regulation?: Antinomies of Religious Freedom
Peter G. Danchin
University of Maryland School of Law
, pdanchin@law.umaryland.edu
Saba Mahmood
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The South Atlantic Quarterly 113:1, Winter 2014
 10.1215/00382876-2390455 © 2014 Duke University Press
Saba Mahmood and Peter G. Danchin
Immunity or Regulation?
Antinomies of Religious Freedom
Introduction
The right to religious liberty is often assumed to
be a neutral legal instrument designed to protect
the right of individuals and groups, particularly
religious minorities, to practice their beliefs freely
without state coercion and threat of social discrim-
ination. Yet a comparative reading of the jurispru-
dence from Egyptian courts and the European
Court of Human Rights shows that it is a far more
ambiguous instrument that often legitimates,
rather than simply alleviates, discriminatory prac-
tices of the state against religious minorities. At
issue is the European formulation of the right
to religious liberty—also enshrined in Egyptian
law—that distinguishes between the right to
“freedom of thought, conscience and religion” in
Article 9(1) and the right to “manifest one’s reli-
gion or beliefs” in Article 9(2) of the European
Convention on Human Rights (ECHR). The for-
mer, referred to as the forum internum, is held to
be absolute, while the latter, the forum externum,
is stated to be subject to limitations where neces-
sary to protect public order, morals, or the rights
of others. As we show in this essay, the second
clause of the right to religious liberty authorizes

130 The South Atlantic Quarterly
•
Winter 2014
the state to intervene in what appears to be mere expressions of religious
belief but in fact involves the state in making substantive judgments about
religion, a domain toward which it claims to be neutral. This paradox haunts
the jurisprudence of the Egyptian courts as much as the European Court of
Human Rights. Even though the former seeks to uphold the principles of the
sharia and the latter understands itself to be secular, both systems face irrec-
oncilable conflicts in maintaining that religious belief is immune from state
intervention while at the same time sanctioning its outward expression. In
both cases the courts have tended to privilege the values and sensibilities of
the majority religion and discriminate against minority faiths through
recourse to the secular concept of public order.
In what follows, we explore this tendency in the reasoning and judg-
ments of cases involving religious minorities in Europe and Egypt. The
European Court judgments we discuss involve secular states such as Tur-
key, Switzerland, and France as well as states such as Italy and Greece with
strongly Christian national profiles. In comparison, Egypt is a self-avowedly
Islamic state that regards the Islamic sharia to be the source of all its laws
even though its legal tradition is based on European (primarily French) law.
These important differences notwithstanding, the deployment of the term
public order in all the judgments we analyze produces two effects: one, it
authorizes the state’s intervention in the domain of religious belief that it
declares to be autonomous and sacrosanct; two, it privileges the values and
commitments of the religious majority as the norm against which the reli-
gious practices of the minority are judged and sanctioned. Rather than under-
stand these two aspects to be a result of the misapplication of the right to
religious liberty or the religious personality of certain states, in this essay we
argue that they are a product of the contradictions and antinomies internal
to the conceptual architecture of the right itself.
Following the recent critical scholarship on secularism, our assump-
tion throughout this essay is that the secular and the religious are not oppo-
sites of each other but are closely intertwined in paradigmatic ways in mod-
ern nation-states (see, e.g., Agrama 2012; Asad 2003; Baubérot 2000; Con-
nolly 1999; Keane 2007; Taylor 2009). The emergence of the modern cate-
gory of the secular (in contrast with the premodern Latin term saeculum) is
constitutively related to the rise of the modern concept of religion wherein it
is impossible to track the history of one without simultaneously tracking the
history of the other. Throughout modern history, secularism, as a principle
of state governance, has entailed less the separation of religion from politics
(as is often assumed) than the ongoing regulation of religion through state

Mahmood and Danchin
•
Immunity or Regulation? 131
and civic institutions that constantly entwine religion with politics. Through
this process has emerged a modular conception of religiosity and a concomi-
tant religious subject that animates various secular discourses, including
the juridical, cultural, ethical, and political. The nation-state and its laws
are the primary vectors for disseminating this normative religiosity. Impor-
tantly, this dissemination occurs in not only non-Western societies whose
level of secularity is often questioned but also those regarded as paradigmati-
cally secular, such as the United States, France, Britain, Germany, and the
Netherlands. Thus the problem of religious (in)tolerance cannot be sim-
ply understood as a product of cultural and social values but must address
how modern technologies of secular governance contribute to its ongoing
life in modern societies.
The first half of the essay focuses on Egyptian jurisprudence produced
on the status of the Bahai minority, who constitute a relatively small propor-
tion of the population (less than 1 percent), but offer the most significant
challenge to the constitutionally guaranteed right to religious liberty. Unlike
Judaism and Christianity, which the Egyptian state formally recognizes, the
practice of the Bahai faith is prohibited in Egypt, a ban that places certain
limits on the civil and political rights of the Bahais. Bahais have legally chal-
lenged this ban with increasing frequency in recent years with limited suc-
cess. We analyze several of the judgments issued by Egyptian administrative
courts that try to reconcile the right to freedom of belief that the constitution
guarantees with the state’s right to limit the public expression of the Bahai
faith. In the second half of the essay we turn to the analysis of key cases in
the jurisprudence of the European Court in which the principle of reli-
gious liberty and public order is invoked, including the well-known Lautsi,
Dahlab, Refah Partisi, S¸ a h i n , Kokkinakis, and Otto-Preminger-Institut judg-
ments. While attentive to the differences between these cases, we want to
point to the striking similarities and the conundrums entailed in regulat-
ing religious minorities across the Western and non-Western divide given
the contradictions inherent in the concept of the right itself.
The Unrecognizability of Bahais
The Bahai faith is relatively new, originating in Iran in the late nineteenth
century as an offshoot of Islam that rejects the finality of Muhammad’s
prophecy and the Koran—two of Islam’s cardinal principles—while accept-
ing their sacrality, thereby putting Bahaism outside the doctrinal fold of
Islam. The founder of the faith, Bahaullah, declared himself to be a prophet

132 The South Atlantic Quarterly
•
Winter 2014
and set down his own principles of the Bahai faith in the Holy Book (Kitab
al-Aqdas). Despite persecution, Bahais have won converts throughout the
Middle East, Asia, and Europe and are currently estimated to be six to seven
million adherents globally.
1
The Bahai administrative structure is akin to a
corporate model, with vertical hierarchies that are integrated horizontally
through a network of globally dispersed Bahai communities. At the top sits
the Universal House of Justice, located in Haifa, Israel, also known as the
Bahai World Center, which is the spiritual and administrative locus of the
Bahai faith. Given modern geopolitical tensions between Israel and most
Middle Eastern states, the location of their headquarters in Haifa has often
made Bahais a national security threat in the eyes of these governments
(see Cole 1998).
2
Bahais have been living in Egypt since the 1860s when a small num-
ber arrived to proselytize secretly and won a few converts from Islam as well
as Judaism and Christianity. Their numbers have remained small even
though in the 1920s they flourished, establishing a temple and petitioning
the government to recognize them as an official religion with its own family
law. Their fortunes turned in the 1960s, however, as the tensions between
Egypt and Israel escalated and President Gamal Abdel Nasser passed a presi-
dential decree (Law 263/1960) that dissolved Bahai institutions and crimi-
nalized their activities. After an initial failed attempt to challenge the decree,
the Bahais ceased all efforts to have the Egyptian state recognize their reli-
gion and have continued to practice their faith under the public radar.
3
It is
not surprising, however, that the Bahais have periodically encountered the
state’s administrative bureaucracy, given that it rules over all aspects of a citi-
zen’s life, from the most intimate to the most public. The primary site where
Bahais encounter the state’s discriminatory powers is in civil and family law:
when Bahais have to acquire civil documents from the Ministry of Interior,
or register births and marriages, and settle custody and inheritance claims
in family law courts. Some of the recent legal cases have centered on the con-
troversial Egyptian law that requires citizens to declare their religious affili-
ation on national identity cards. Given that only Islam, Christianity, and
Judaism are accorded formal recognition, when Bahais have tried to list their
religion on their identity cards, it creates a legal conundrum for the Egyptian
state. If the state permits Bahais to register their religion on an official docu-
ment, it amounts to a de facto recognition of their faith; but if the state does
not permit them to do so, then it forces Bahais to list their religious identity
as Muslim, Christian, or Jewish, which constitutes a lie—itself a violation of
state law.

Frequently asked questions

Q1. What have the authors contributed in "Immunity or regulation?: antinomies of religious freedom" ?

Mahmood and Danchin this paper argued that the distinction between forum internum and forum externum and corresponding conceptions of public order either recognizing or limiting claims to religious freedom in each sphere are what underlies the striking similarities in the Egyptian and the European courts. 

Q2. What future works have the authors mentioned in the paper "Immunity or regulation?: antinomies of religious freedom" ?

The Impossibility of Religious Freedom. 

Q3. What does the court say about the public order clause?

The court further notes that because the public order clause gives the state the authority to144 The South Atlantic Quarterly • Winter 2014limit the expression of religious beliefs that contradict the social order and public morality of a given polity, it then follows that the Egyptian state can place limitations on the public expression of the Bahai religion because it contradicts Islam, the religion of the majority of Egyptians and therefore the basis of the nation’s social order. 

Q4. What did the Bahais do after the initial attempt to challenge the decree?

After an initial failed attempt to challenge the decree, the Bahais ceased all efforts to have the Egyptian state recognize their religion and have continued to practice their faith under the public radar. 

Q5. What is the main reason why the Bahais have tried to list their religion on their identity?

Given that only Islam, Christianity, and Judaism are accorded formal recognition, when Bahais have tried to list their religion on their identity cards, it creates a legal conundrum for the Egyptian state.