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Abstract

French

Despite a recent trend toward the judicialization of religious freedom (JRF), both historical experience and theoretical considerations suggest ‘dejudicialization’ is likely at some point. Yet, dejudicialization has provoked a little comment, and even less theorization, among social scientists studying religious freedom. This article conceptualizes the dejudicialization of religious freedom (DRF) in institutionalist terms, examines the structural forces that have facilitated JRF, and considers whether and how they may be waning in recent years. We argue conditions favorable toward dejudicialization in general, and DRF more specifically, are already emerging; highlight recent developments consistent with such a turn; and develop a typology of the forms that DRF may take.

Keywords

courts dejudicialization judicialization law religious freedom

Scholars in law and the social sciences are increasingly interested in the ‘judicialization of religious freedom’ (JRF), or the expanding role of the courts in adjudicating and defining religious freedom (Breskaya et al., 2018; Mayrl, 2018; Richardson, 2015; Sandberg, 2011, 2014). The involvement of the courts in determining the bounds of religious freedom is often celebrated as a positive development that holds great promise for religious minorities (Finke, 2013; Finke and Martin, 2014; Hurd, 2014).

In this article, we suggest that there is cause for concern about the direction of this trend, and argue that scholars should be alert for signs that a countervailing ‘dejudicialization of religious freedom’ (DRF) may be beginning to build. Our basic point is that we should not take JRF for granted, but instead, must ask whether courts are becoming less favorable terrain for advocates of religious freedom in both absolute and relative terms. Following Mayrl’s (2018) institutionalist approach, we define DRF as the relative decline in the role played by courts in adjudicating religious freedom relative to other institutional venues. We suggest that the political and institutional conditions that have supported JRF over the past 70 years appear to be weakening, making DRF a more likely outcome; and draw on some recent examples to theorize some of the forms that DRF may take.

The question mark in our title is important: our goal is not to definitively demonstrate that DRF has overtaken JRF. Rather, our goal in this piece is to show that the conditions under which we would expect DRF to occur have been strengthening, and to identify some of the concrete ways DRF may occur. We hope thereby to clear the ground for further and more rigorous empirical scholarship on DRF, and to encourage scholars to think about its political, scholarly, and human implications.

From judicialization to dejudicialization

Recent interest in JRF builds upon decades of legal scholarship on the judicialization of politics, or ‘the increased presence of judicial processes and court rulings in political and social life, and the increasing resolution of political, social, or state-society conflicts in the courts’ (Sieder et al., 2005: 3). This literature has documented a global trend toward the increased reliance on courts and judiciaries in resolving political conflicts and public policy (Hirschl, 2011). Building on this literature, scholars have identified JRF in countries where ‘courts [are] playing a major role in the management of religion’ (Richardson, 2015: 14; see also Fokas, 2015, 2016; Koenig, 2015; Sandberg, 2011, 2014). Yet, while the possibility of reversal features prominently in the original literature on the judicialization of politics (e.g. Hirschl, 2006), this has been less true of scholarship on JRF. Dejudicialization has not, to date, been the focus of sustained theoretical or empirical work by social scientists interested in religious freedom. In contrast, our goal in this article is to bring DRF to the analytic center and provide a road map for how to identify and theorize it.

In a recent article, Mayrl (2018: 517) argues that JRF should be understood in institutional terms, as ‘changing relationships between courts and other political venues’. Political actors seeking to defend religious freedom potentially have multiple options, or ‘venues’, in which they can pursue their claims (Baumgartner and Jones, 1993), and their choice of venue reflects their estimation of how likely they are to succeed in each venue. JRF thus depends upon actors’ calculus that courts, rather than other potential venues (e.g. legislatures, school boards, etc.), are where they are most likely to successfully advance their religious freedom claims, relative to other alternatives. This, in turn, depends on courts being more attractive venues than alternatives.

Courts are not inherently more attractive venues for pursuing religious freedom, however. Instead, their appeal depends on particular features that make them relatively more promising venues compared to possible alternatives. To be venues wherein religious freedom claims may be heard (and successfully upheld), courts need to be accessible to claimants, responsive to their arguments, socially legitimate, and politically autonomous (Finke and Martin, 2014; Mayrl, 2018; Richardson, 2006). By implication, JRF should occur when courts are both accessible and relatively more responsive than other venues, because these circumstances encourage political actors to attempt to make their religious freedom claims through the courts rather than other venues. However, if courts become less accessible or relatively less attractive compared to other venues, political action around religion should shift to other venues. This venue-shifting away from courts constitutes dejudicialization.

Whereas, ‘judicialization’ is an established area of study in legal scholarship, scholarship on ‘dejudicialization’ is nascent, with limited consensus on definitions and still fewer studies of how it works in practice. In the most elaborate analysis of dejudicialization, Abebe and Ginsburg (2019) define it narrowly as ‘the complete removal from judicial cognizance of a policy issue that had previously been subject to judicialization’ (2019: 521). For them, dejudicialization is distinct from ‘backlash’, which reduces ‘the scope and depth of judicial governance’ (Abebe and Ginsburg, 2019: 521). In contrast with this narrow definition, others conceive of dejudicialization in broader terms. Thus, it has been used to refer to the transfer of dispute resolution to other bodies beside the courts (Gascón Inchausti, 2018; Ghodoosi, 2020; Kraljić, 2020), the retrenchment of judicial review (Peerenboom, 2009), a turn toward more overtly political forms of dispute contestation (Steinberg, 2018), and the reassertion of the prerogatives of non-judicial actors within the political system (Vinjamuri and Snyder, 2015).

Our definition of dejudicialization flows from our institutionalist theoretical perspective. If judicialization entails ‘the expansion of the province of the courts or the judges at the expense of the politicians and/or the administrators, that is, the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts’ (Vallinder, 1995: 13), then dejudicialization should entail the diminution of the province of courts and judges to the benefit of other political actors, and the transfer of decision-making rights to the legislature, cabinet, civil service, or other non-judicial bodies. Similarly, if JRF entails ‘an increasing reliance upon judicial activity in deciding religious matters’ (Mayrl, 2018: 515), then DRF should reflect a decreasing reliance on courts and judges in deciding religious affairs.

Our definition of dejudicialization is thus relative and relational: it emphasizes that the power of courts relative to other actors in a political ecosystem is variable, and focuses our attention on which venues within a given system are the most prominent ‘ultimate arbiters’ of religious freedoms. DRF occurs not only when courts are curbed or eliminated, but when other venues (such as legislatures, bureaucracies, or quasi-public bodies) take on a larger role in managing religious affairs relative to the courts. In this sense, while our definition is substantially broader than the narrowest definitions discussed earlier, it follows them in emphasizing that judicialization ‘should not be considered a teleological process’, and that ‘courts are embedded in broader systems of governance’ (Abebe and Ginsburg, 2019: 521, 523) that constrain the actions of the courts in important ways.

Weakening structural supports for judicialization

Many scholars see JRF as an important condition for the expansion of religious freedom.¹ Quantitative evidence that an independent judiciary is often associated with the protection of religious freedoms lends support to this view (Finke and Martin, 2014; Finke et al., 2017a; Mataic and Finke, 2019; but see Finke et al., 2017b; Schleutker, 2018). Yet, we should not assume this trend toward judicialization is permanent. Rather, JRF is akin to secularization: a trend that has advanced, but which is always subject to politics and contestation (Gill, 2008; Smith, 2003); whose perpetuation rests on institutional, political, and social foundations (Mayrl, 2016; Peker, 2019); and which is always reversible (Gorski, 2000; Saeed, 2017). If the politics of the judiciary changes, if institutional aspects of the courts shift, if social relationships are transformed, we might expect JRF to slow, or even reverse.

Over the past 70 years, broad structural supports – cultural, political, and institutional – have favored the growth of legal power. These include the rise of human rights and religious freedom as global norms, spread by international treaties, advocacy organizations, and legal professionals in world society (Breskaya et al., 2018; Cole, 2012; Koenig, 2015; Meyer et al., 1997). These norms have been actualized through new international and regional courts (including, prominently, the European Court of Human Rights (ECtHR)), which have established and solidified their jurisdiction over rights claims, including religious rights; and through expanded legal support structures (lawyers, activists, and other litigation resources) that facilitate legal mobilization (Epp, 1998; Fokas, 2016; Koenig, 2015). The power of courts was enhanced by a wave of democratization in the late-twentieth century and the expansion of constitutionalism (Huntington, 1991; Lerner, 2013). And many courts expanded access by relaxing their standing rules or increasing the ambit of judicial review (e.g. Koenig, 2015; Mayrl, 2016). The judicialization of politics, and JRF more specifically, thrived in these conditions, as courts became more promising venues for actors seeking to make political change.

There are signs that many of these structural supports have been eroding in recent years, however. Of greatest concern is a trend, visible since at least the turn of the century, toward democratic backsliding (Waldner and Lust, 2018). Judicialization tends to be more common in democratic regimes (Hirschl, 2010), in part because it helps to solve a variety of thorny accountability problems for politicians and in part because power in democracies tends to be more fragmented (Hirschl, 2006).² Courts in democracies thus tend to be more autonomous – a feature, as noted above, that is particularly important for JRF. The antidemocratic trend in global politics, which often features the consolidation of power in the hands of ‘strongmen’, thus poses a risk for judicialization. Indeed, many of the examples of DRF discussed below hail from backsliding democratic regimes.³

The faltering prospects for democracy are compounded by the emergence of populist and ethnonationalist movements in many Western countries (Bonikowski, 2017). The rise of a more nationalist style of politics inherently runs counter to global norms and authorities. It is accordingly unsurprising that populist movements have been among the most vocal drivers of backlash against human rights rulings over the past 30 years (Voeten, 2019), and that many populist parties have specifically targeted domestic courts as part of their political programs (Grzymala-Busse, 2019). The resurgence of populist nationalism not only threatens domestic courts, but can also discourage litigants from pursuing redress in international courts. For example, grassroots actors in Italy, Romania, Greece, and Turkey were reluctant to mobilize around ECtHR religion cases in part because they sensed that doing so would be perceived as an ‘anti-nationalist act’ (Fokas, 2020). Populist nationalism thus threatens the foundations of global human rights, including religious freedom, in important ways.

The explicit targeting and undermining of courts by antidemocratic or populist regimes threatens their legitimacy and efficacy. Courts need to be seen as legitimate by key constituencies for judicialization to take place. In the absence of such legitimacy, public opinion will not be enough to salvage courts’ ability to act within the political system. Indeed, political polarization enhances the odds that partisans will attempt to curb the court as an agent in the political system if it does not support their political goals (Bartels and Johnston, 2020). In some contexts, there has been an erosion in the legal support structure of lawyers, activist groups, and ‘third-party partisans’ (Richardson, 2006) who are essential to judicialization (Peerenboom, 2009). In others, failure to comply with court decisions has discouraged mobilization and led to a reevaluation of the role of courts. Consistent with an institutional theory of JRF, actors who have been frustrated by courts or the implementation of court decisions have turned their attention to other avenues for seeking redress (e.g. Nielsen, 2015; Özgül, 2019).

In short, there are reasons to be concerned that some of the broad structural factors supporting judicialization – democratization, global norms, and legal support structures – have weakened. Under these conditions, we would expect to see a decrease in judicialization as courts become less favorable or reliable venues for political action.

The dejudicialization of politics

In light of these larger trends, it is not surprising that scholars have begun to see evidence of dejudicialization, where power appears to be shifting away from courts and toward other political actors. In this section, we organize some of this evidence into a loose typology. We do not claim that this typology is exhaustive; rather, we offer it as a starting point for considering the forms dejudicialization may take, and for theorizing some of the mechanisms that may drive it. With this in mind, we argue that dejudicialization can take at least the following six forms: court-curbing, contestation, noncompliance, judicial bypass, access restriction, and interpretive change.⁴

First, dejudicialization may result from court-curbing strategies, where the court’s jurisdiction or autonomy is directly reduced. In this case, dejudicialization takes the form of direct attacks on the courts by legislative or executive bodies. Legislatures are often empowered to determine the scope of courts’ authority or composition, and they may use these levers to ‘curb’ the courts, or rein in their autonomy or authority (Bartels and Johnston, 2020; Lupu et al., 2019). At its most extreme, this has entailed stripping courts of jurisdiction altogether. The South African Development Community Tribunal, for instance, had its jurisdiction radically curtailed in 2014 after a decade-long campaign led by Zimbabwe (Abebe and Ginsburg, 2019). At other times, attempts to ‘curb’ the courts have taken the form of interfering with their staffing. In Poland, the government tried to force its supreme court justices to retire, while at the international level, the World Trade Organization’s Appellate Body was crippled by American efforts to block new appointments (Abebe and Ginsburg, 2019; Steinberg, 2018).

Second, dejudicialization may also result from aggressive contestation by legislatures or executive bodies that reduce courts’ ability to act as ultimate arbiter by overruling their decisions. Whereas court-curbing advances dejudicialization by reducing courts’ autonomy, contestation reflects an acceptance of courts’ autonomy in principle while rejecting or overriding their specific decisions.⁵ In contestation, the ability to resolve political disputes is reclaimed by legislatures or the executive. In its strongest form, governments can try to void a court’s entire jurisprudence, as occurred in Hungary (Abebe and Ginsburg, 2019). More commonly, contestation may happen in response to particular decisions. In the United States, for instance, Congress has regularly passed legislation to overrule or counteract Supreme Court decisions on civil rights matters (Devins, 2008). These legislative forms of contestation counter judicialization and, by reducing the courts’ authority, constitute dejudicialization.

A third form of dejudicialization is noncompliance, where those bodies entrusted with enacting court decisions refuse to implement or enforce them. Because courts rely on other actors to enforce their decisions (Epp, 1998), those actors have a great deal of power to simply refuse to carry out their orders. This weakness of courts has been exploited to a seemingly greater extent in recent years, particularly among European countries putatively bound by European courts. As Richardson (2019) notes, ‘a growing number of member states are refusing to enforce decisions of the [ECtHR] or to modify their statutes and procedures’ (2019: 305). Notably, noncompliance with European court rulings is not confined to the backsliding democracies of Central Europe, but is also rampant among Western European member states, who have resisted complying with court decisions on prisoners’ rights, religious freedom, and other issues (Madsen et al., 2018; Richardson, 2019). Like contestation, noncompliance acts as a form of dejudicialization by reducing the court’s authority – though in this case, it does so by rendering verdicts a dead letter, rather than by affirmatively countering them.⁶

Fourth, dejudicialization may result from judicial bypass, where decision-making powers over religious freedom are shifted to other state or non-state actors. At times, judicial bypass may be an active strategy pursued by non-judicial actors who seek to reduce the odds that courts can get involved in an issue. Two such strategies include ‘preemptive mobilization’, where alternative bodies, public or private, are created to solve problems before they reach the courts; and ‘associational policymaking’, where policies are placed into private hands beyond the purview of judicial review (Mayrl, 2018). Judicial bypass may also result from the active ceding of powers of review by courts to other bodies. In recent years, many family courts in Europe and Latin America have attempted to reduce their caseloads by allowing notaries or administrative offices to process divorce proceedings (Kraljić, 2020). Courts in China, meanwhile, have insisted that plaintiffs exhaust all possible administrative remedies before they will hear a case (Peerenboom, 2009).

Most strikingly, many nations have seen a recent rise in ‘alternative dispute resolution’ (ADR).⁷ Here, private dispute resolution forms such as mediation or arbitration are empowered to handle matters instead of the courts. The United States has been a leader in this turn, regularly affirming the use of enforcement of arbitration clauses in contracts instead of litigation (Ghodoosi, 2020). ADR may appeal to courts with an ideological preference for deregulation and the privatization of dispute settlements (Resnik, 2015), but it may also appeal as a strategy to reduce judicial caseloads (Ghodoosi, 2020). One side effect of the judicialization of politics has been a massive increase in courts’ caseloads (Lavie, 2016; Richardson, 2019). ADR offers an appealing solution for these overworked courts. In Spain, for instance, where financial issues and case overload became acute after the 2008 financial crisis, the legal system has been modified to promote arbitration and mediation over litigation (Gascón Inchausti, 2018).

In contrast to court-curbing, contestation, and noncompliance, courts may be willing participants in the reallocation of responsibility to non-court actors’ characteristic of judicial bypass. And at still other times, as we discuss below, judicial bypass may not be an intentional strategy at all, but rather the byproduct of the development of new institutional venues and the transformation of political action that results. Yet, the end result is the same: the resolution of disputes is ceded by the courts to other actors, leading to dejudicialization.

Fifth, dejudicialization may result from access restrictions, where courts or legislatures make it procedurally harder to pursue legal remedies through the courts. If judicial bypass refers to the positive promotion of institutional alternatives for managing religious freedom, access restrictions refer to negative limitations on the use of the courts to that end. Not everyone is entitled to be heard in court, and there is a wide variation in the extent to which courts are accessible venues. Standing rules and grounds for judicial review – two criteria which determine who is entitled to seek judicial redress – are among the most important such determinants of access (Mayrl, 2018), but courts may also determine what counts as a justiciable case or controversy that they are willing (or empowered) to adjudicate (Pfander, 2018). Proposals to restrict access to courts have increased in the face of rising court caseloads, and have been implemented in some countries, such as Chile (Bustos et al., 2019). Not coincidentally, the relative power of courts (and thus, the prospects for judicialization) tends to increase with greater accessibility (Alter et al., 2016), but these procedures are not set in stone. As we discuss below, courts have taken steps to reduce access on various religious matters in the United States, which has chilling effects on actors’ ability to use the courts.

Finally, dejudicialization may be the product of interpretive change by the courts themselves, wherein they define the terms of legal contests in ways that reduce the prospects for litigants’ success. Courts have a good deal of flexibility in how they interpret the law (Lerner, 2013). While this at times may be mobilized on behalf of more expansive rights, it can also be used to restrict them (Fox and Flores, 2009). Furthermore, courts use a variety of rules and standards to guide their decisions (Tiller and Cross, 2006), and the choice of which standard or test to apply can often be consequential for the outcome of cases (e.g. Martin, 2019). Courts can and do shift their interpretations of the law and alter the rules and standards they apply in making decisions.

Interpretive change can encourage dejudicialization in varied ways. Interpretive shifts may reduce the likelihood that a petition succeeds, making courts less attractive to future petitioners. They may also result in decisions that accord greater deference to other political venues. In either case, however, it reduces the power and authority of courts relative to other actors in the political ecosystem, either by asserting a larger role for those other institutions or by making courts less promising venues for potential litigants.⁸

The dejudicialization of religious freedom

Just as evidence of dejudicialization is visible in the political sphere more generally, so too have scholars begun to catalog instances of the dejudicialization of religious freedom more specifically. Examples of outright court-curbing specifically over issues of religious freedom are reasonably rare – though reductions in autonomy that dejudicialize politics more generally usually have a dejudicializing effect on religious freedom as well. In Pakistan, for instance, rights for its minority Ahmaddiya community were sharply curtailed after the composition of the court was changed to reduce its autonomy (Saeed, 2017). The faltering prospects for religious freedom in Eastern Europe (discussed below) likewise have undoubtedly been worsened by the court-curbing measures that have taken place there (Richardson, 2019).

By contrast, contestation by legislatures and executives designed to counter court decisions addressing religion are more common. At times, contestation has promoted religious freedom. In the United States, these have famously included legislative action to promote religious freedom through the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, both passed in response to Supreme Court decisions restricting religious freedom in the 1990s (Richardson, 2015). In Turkey, similarly, the ECtHR decision permitting a ban on headscarves in Turkish universities was overturned by constitutional amendment (Jusic, 2018). Yet, legislative action may also restrict religious freedom, as in Spain, where two Supreme Court decisions voiding licensing requirements for places of worship were later overruled to allow licensing and regulation (Burchardt, 2020). In all of these cases, we should properly speak of DRF, since the last word in these conflicts goes not to courts but to other political actors.

DRF has also been visible in noncompliance. In Russia, political officials have vocally denounced ECtHR, refused to enforce its rulings, and used extremism laws to persecute minority religious groups (Richardson, 2019). In Turkey, too, the government refused to implement a 2014 ECtHR ruling against compulsory religious education, declaring education to be a domestic matter (Özgül, 2019). Mataic and Finke (2019) have documented a growing ‘compliance gap’ around the world between promises of religious freedom and their actual implementation. While the lack of free elections or a compromised judiciary contribute to some of this gap, in other cases it reflects broader social and cultural pressures that courts are ill-positioned to counteract, because ‘violations are permitted or simply overlooked’ (Mataic and Finke, 2019: 127) by state actors tasked with enforcing them. The implementation of laws relies on normative foundations that are ‘surprisingly fragile’ (Merriman, 2019: 7), and the norm to enact court decisions can often be overwhelmed by local social or cultural pressures. Local administrative actors thus continue to play important roles that can counteract court decisions (Finke and Mataic, 2020; Giorgi and Itçaina, 2016).

Outside of noncompliance, signs of DRF are most visible in forms of judicial bypass, where public and private actors are enlisted as venues that take the resolution of disputes out of the hands of the courts. One of the most prominent such strategies involves religious arbitration, ‘a voluntary dispute resolution process, conducted according to religious principles’ which ‘serves as a substitute for proceedings in civil court’ (Walter, 2012: 503–504). In line with the turn toward arbitration in general, American courts have typically enforced religious arbitration where it has been agreed to, unless it would violate federal civil rights (Walter, 2012). Since 2000, religious arbitration has been increasing as a response to religious diversity. In fact, proponents of religious arbitration often hold it out as an alternative, non-judicial means of promoting religious freedom. As Shachar (2008) notes, ‘The main claim raised by advocates of privatized diversity is that what respect for religious freedom or cultural integrity requires is not inclusion in the public sphere, but exclusion from it’ (2008: 577). Because religious arbitration ‘seeks to amplify the autonomy of parties to pursue shared values’ (Helfand, 2015: 2994), it is argued that it can ‘serve as the quintessential institution of the new multiculturalism, providing religious groups with the law-like autonomy that has been withheld under public law’ (Helfand, 2011: 1237). By shrinking the jurisdiction of the courts and devolving dispute resolution to private religious bodies, in other words, advocates argue that states may actually promote religious freedom by refusing to intervene in religious communities’ internal affairs (cf. Broyde, 2018).⁹ Whether done for this reason or not, however, religious arbitration reduces the ambit of justiciability, leading to DRF.

In other cases, judicial bypass involves empowering non-court venues in ways that give them greater power to manage religious affairs. At times, these may be public agencies. Finke and Mataic (2020) note that registration requirements for religious groups have been increasing in recent years, empowering state agencies and local officials in the process. Similarly, in Catalonia, the protection of religious freedom has fallen to a Secretariat of Religious Affairs, which coordinates with municipal authorities to ‘coach’ religious groups on legal standards, educates civil servants on religious matters, and acts as a broker in religious conflicts (Burchardt, 2020). At other times, state actors may create hybrid public–private agencies that anticipate and divert conflict before it reaches the courts. In France, for instance, government-sponsored municipal consultative bodies bring members of religious groups together to counter religious radicalism, promote interfaith understanding, and prevent conflicts from emerging (Martínez-Ariño, 2019; see also Dawson, 2016 and Martikainen, 2016 for examples elsewhere in Europe). While DRF is rarely the stated purpose or aim of these bodies, they nevertheless offer a new, non-judicial venue for the resolution of conflicts – thereby contributing to DRF.

Access restrictions may be contributing to a turn toward DRF as well. As discussed earlier, access is an essential prerequisite for judicialization in general (Alter et al., 2016), and this is also true for JRF. Moustafa (2018: 704) argues that we should expect the judicialization of religion to be ‘most acute . . . where courts afford broad public access’. And studies have shown that JRF is more advanced in settings where the court system is accessible and standing rules have been relaxed (Burchardt, 2020; Fokas, 2015, 2016; Koenig, 2015; Mayrl, 2016). However, just as courts have taken steps to restrict access in general, so too have some courts sought to restrict access around religious matters specifically. In the United States, the Supreme Court has restricted standing grounds for First Amendment lawsuits, making it nearly impossible for plaintiffs to challenge funding for religious bodies enacted through executive order or tax expenditures (Mayrl, 2016). This increases the odds that such controversies will be resolved outside the courts in the future.

Finally, interpretive change may encourage DRF by making courts less promising venues to litigants. One important set of interpretive changes involves courts abdicating their authority to enforce religious freedom claims by engaging in creative boundary-work. Legal defenses of religious freedom depend on how courts define ‘religion’, and this definitional process is never straightforward (Sullivan, 2005). Recent years have seen a trend in both European and North American courts toward a ‘religion-to-culture strategy’ (Beaman, 2020), in which courts define a variety of majoritarian religious symbols and practices as elements of a country’s ‘heritage’ or ‘culture’ (Beaman, 2020; Burchardt, 2020). In so doing, courts declare that laws regulating religion are not germane, since the symbol or practice in question constitutes ‘culture’ and not ‘religion’. Prominent recent examples include the ECtHR’s Lautsi ruling permitting crucifixes in Italian classrooms, and the US Supreme Court’s American Legion case blessing a large Latin cross on government land (Astor and Mayrl, 2020). This strategy is appealing for courts who seek to abide by the letter of the law, while allowing popular majority practices that transgress it to persist (Joppke, 2018). Yet, it also reduces opportunities for JRF and increases the likelihood of DRF, since, like access restrictions, the ‘culturalization’ of religion reduces the number of questions that can be heard before the courts.

At other times, interpretive change may lead courts themselves to become vehicles for constricting religious freedom (Wybraniec and Finke, 2001). They may develop interpretations and tests that reduce protections to religious minorities, or even subject them to persecution. It is noteworthy that even as judicialization and JRF have expanded, so too apparently has the extent to which governments globally discriminate on religious grounds (Fox, 2020; see also Finke and Mataic, 2019). Part of the reason for this is that courts are susceptible to popular pressure. Discontent and backlash against the courts act as warning signals to the court that its legitimacy or status is at risk (Alter et al., 2016; Jusic, 2018). Courts may adjust their behavior in response to avoid backlash (Lupu et al., 2019), including by inventing new doctrines that allow violations of religious freedom to persist. In the face of such pushback and criticism from its more powerful Western European sponsors, for instance, the ECtHR has advanced a more expansive interpretation of the ‘margin of appreciation’ that has permitted those countries to impose more controls on religious groups (Henrard, 2015; Jusic, 2018; Richardson, 2019).

In extreme cases, courts themselves can be used as vehicles for religious restriction. In Russia, for instance, courts have engaged in ‘creative interpretations of the law on public demonstrations’ to restrict evangelical Protestant worship (Fox, 2020: 31–34), and have upheld the use of ‘anti-extremist legislation’ to control unpopular religious minorities (Shterin and Dubrovsky, 2020). While on the surface, these trends are consistent with JRF, because courts still have ‘the last word’ in determining the scope of religious freedom, in the bigger picture they potentially incentivize DRF, as those seeking the protection of religious freedom may perceive the courts to be hostile terrain, and turn toward other political venues to pursue their goals.

Discussion and conclusion

This article has not attempted to conclusively demonstrate that the dejudicialization of religious freedom has occurred. Data constraints currently make it impossible to tell whether decisions about religious freedom are being finalized to a greater or lesser degree through the courts vis-à-vis other actors in any quantitative sense. Instead, we have attempted to clarify what DRF is, and to suggest that scholars should think about dejudicialization in institutionalist terms – that is, as the relative decline in the prominence of courts in making decisions governing religious freedom. We further argued that the conditions that support JRF are currently under strain, and that political trends toward populism and ethnonationalist movements and away from democracy and global human rights constitute conditions that are favorable to DRF. Finally, we developed a typology of forms of dejudicialization, and highlighted a variety of contemporary political developments that are consistent with DRF. While the dominant narrative of the postwar era has been – and indeed still may primarily be – one of judicialization, we believe that we should expect to see more examples of dejudicialization in the years to come, especially if structural conditions continue to shift in an antidemocratic direction.

Our analysis suggests several general take-aways. First, and most straightforwardly, JRF is not a one-way ratchet. Instead, like other trends, it depends on political and institutional foundations that can shift. It is thus reversible, and scholars would do well to study the conditions and processes whereby dejudicialization occurs.

Second, actors seeking religious freedom have choices about where they press their claims. JRF depends upon the courts being an attractive, available, and promising venue for those actors. If courts no longer fulfill these conditions, petitioners have other venues to which to turn. The use of legislatures, arbitrators, or municipal bodies to address religious freedom may indicate the extent to which other venues are competing with, if not superseding, courts as venues of choice in the minds of some actors. There is currently a dearth of systematic empirical evidence on the relative prominence of courts versus other institutional venues as ultimate arbiters of religious freedom. As social scientists develop new projects examining the determinants of religious freedom, they would be wise to consider more robust metrics that allow them to evaluate DRF as well as JRF. Our hope is that this article encourages and facilitates empirical analyses of both JRF and DRF that examine both court decisions and the action of other institutional authorities.

Finally, those who celebrate courts as protectors of religious freedom need to guard against complacency. Even when courts reign supreme, they need not expand religious rights; indeed, their inability to enforce their decisions makes legitimacy concerns paramount, and incentivizes them to be cautious when it comes to minority rights. There is also a risk of overlooking or dismissing the importance of other venues besides courts. An institutionalist approach encourages us to avoid such blind spots; while courts play an important role in any political ecosystem, other venues also matter, and need to be treated as potential sites for the contestation of religious freedom. The bounds of religious freedom, in the end, are determined by political struggles; we need to take a broader view that situates the courts within their larger institutional ecology.

Footnotes

Acknowledgements

The authors thank Bonnie Paige for research assistance, and Giuseppe Giordan, Siniša Zrinščak, and the Social Compass reviewers for helpful feedback.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Work on this project was supported through the Colby College Summer Research Assistantship program.

ORCID iD

Damon MAYRL

Notes

Author biographies

Damon MAYRL is Associate Professor of Sociology at Colby College. His research interests include religion and politics, American statecraft, and comparative and historical methods. He is the author of Secular conversions: Political institutions and religious education in the United States and Australia, 1800–2000 (Cambridge University Press, 2016).

Address: Colby College, Department of Sociology, 4000 Mayflower Hill, Waterville, ME 04901, USA.

Email: damon.mayrl@colby.edu

Dahlia VENNY is a senior undergraduate student at Colby College pursuing a Biology major and Creative Writing minor while on a pre-medical track. She attended an Introduction to Sociology course taught by Professor Mayrl in the spring semester of her sophomore year and was intrigued by his research in the fields of religion, society, and law, as she is a practicing Muslim. She has been his research assistant since May 2020.

Address: Colby College, Department of Sociology, 4000 Mayflower Hill, Waterville, ME 04901, USA

Email: dahlia.venny@colby.edu

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The dejudicialization of religious freedom?

Abstract

Keywords

From judicialization to dejudicialization

Weakening structural supports for judicialization

The dejudicialization of politics

The dejudicialization of religious freedom

Discussion and conclusion

Footnotes

Acknowledgements

Funding

ORCID iD

Notes

Author biographies

References