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Religious Majorities and Restrictions on Religion Brett .G Scharffs J

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Religious Majorities and Restrictions on Religion Brett .G Scharffs J Notre Dame Law Review Volume 91 | Issue 4 Article 6 6-2016 Religious Majorities and Restrictions on Religion Brett .G Scharffs J. Reuben Clark Law School, Brigham Young University Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons Recommended Citation 91 Notre Dame L. Rev. 1419 (2016) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\91-4\NDL406.txt unknown Seq: 1 11-MAY-16 11:36 RELIGIOUS MAJORITIES AND RESTRICTIONS ON RELIGION Brett G. Scharffs* INTRODUCTION What if dominant religious majorities are the most significant obstacle to religious freedom, and religious doctrine the most powerful force in elimi- nating that obstacle? Social scientists studying freedom of religion and belief have focused upon two types of restrictions on religious freedom, formal restrictions that take the form of laws and other official legal limitations on freedom of relig- ion and belief, and informal restrictions that take the form of social hostili- ties towards religion or towards particular religious groups, usually minorities. This Article seeks to build upon this work in three ways: first, by noting the striking correlations between countries with very high or high legal restrictions and social hostilities regarding religion and the frequent presence of a dominant religious group in those countries; second, by sug- gesting that dominant national religious majority groups may create an even more formidable obstacle to religious freedom than laws and regulations and other forms of social hostility towards religious groups; and third, by noting a dramatic exception to this pattern, countries where Catholics are the domi- nant religious group. Countries with Catholic majorities are, for the most part, places where there are not high legal or social restrictions on freedom of religion. This Article concludes by considering the role that Dignitatis © 2016 Brett G. Scharffs. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Brett G. Scharffs is the Francis R. Kirkham Professor of Law and Associate Dean for Faculty and Curriculum, J. Reuben Clark Law School, Brigham Young University, and Associate Director of the International Center for Law and Religion Studies. This Article has been jointly developed through a series of presentations with my colleague at the International Center for Law and Religion Studies, Donlu Thayer. The usual expression of gratitude is altogether insufficient to acknowledge her contribution to our collaborative thinking and work on this topic. Heartfelt thanks is also expressed to Professor Rick Garnett and the student editors of the Notre Dame Law Review, as well as the other participants in the symposium for their comments and questions. 1419 \\jciprod01\productn\N\NDL\91-4\NDL406.txt unknown Seq: 2 11-MAY-16 11:36 1420 notre dame law review [vol. 91:4 Humanae may have played in this remarkable pattern of low legal restrictions and social hostilities in Catholic-majority countries. I. LEGAL RESTRICTIONS AND SOCIAL HOSTILITIES A series of studies published by the Pew Research Center (“Pew”) over the past decade paint a rather dire picture of the state of religious freedom in the world, as well as trends regarding legal restrictions and social hostilities involving religion. The studies rate 198 countries and self-governing territories (197 before the addition of South Sudan in the most recent report) according to two indexes: the “Government Restrictions Index” (GRI), which measures “gov- ernment laws, policies and actions that restrict religious beliefs and prac- tices,”1 and the “Social Hostilities Index” (SHI), which measures “acts of religious hostility by private individuals, organizations or groups in society.”2 The GRI watches twenty measures of restriction, “including efforts by govern- ment to ban particular faiths, prohibit conversion, limit preaching or give preferential treatment to one or more religious groups.”3 The thirteen mea- sures of the SHI consider such factors as “mob or sectarian violence, harass- ment over attire for religious reasons or other religion-related intimidation or abuse.”4 In their survey published in February 2015, Pew reported that thirty-nine percent of the world’s countries (2013 data) had high or very high overall restrictions on religious freedom, with sixty-one percent having moderate or low restrictions on religious freedom.5 Because the countries with high or very high restrictions include some with very large populations, such as India and China, these countries include more than three-fourths (seventy-seven percent) of the world’s population, with twenty-three percent of the world’s population living in countries with moderate or low restrictions on religious freedom.6 These graphs represent a composite of both legal and social restrictions on religion7: 1PEW RESEARCH CTR., LATEST TRENDS IN RELIGIOUS RESTRICTIONS AND HOSTILITIES 6 (2015), http://www.pewforum.org/files/2015/02/Restrictions2015_fullReport.pdf. 2 Id. 3 Id. 4 Id. 5 Id. at 4. The percentages for high and very high restrictions are taken from page four of this report. The percentages for moderate and low restrictions are not specifically mentioned in the report but are simply what remains. 6 Id. 7 Id. \\jciprod01\productn\N\NDL\91-4\NDL406.txt unknown Seq: 3 11-MAY-16 11:36 2016] religious majorities and restrictions on religion 1421 High or 39% Very High High or 77% Very High 61% Moderate or Low Moderate 23% or Low 39% of the world’s countries have These 39% of countries include high or very high restrictions on more than three-fourths (77%) of religious freedom. the world’s population. The trends over time between 2007 and 2013 are also discouraging, with the percentage of countries reporting high or very high restrictions on relig- ion trending generally upwards, from twenty-nine percent in 2007 to thirty- nine at the end of 2013.8 During that same period of time, the percentage of countries with moderate or low restrictions has decreased from seventy-one percent to sixty-one percent.9 Again, because many of the countries with high or very high restrictions have large populations, the percentage of the global population living in countries with high or very high restrictions has increased, from sixty-eight percent in 2007 to seventy-seven percent at the end of 2013.10 The percent- age of the world’s population living in countries with moderate restrictions has remained relatively steady, increasing from eighteen percent to nineteen percent, and the percentage of the world’s population living in countries with low restrictions has decreased from fourteen percent to four percent.11 Thus, over this period of time there has been an approximate increase of ten percent in the world’s population living in countries with high or very high restrictions, and a decrease of ten percent in those living in countries with low restrictions on religious freedom.12 8 Id. (regarding 2013 data); PEW RESEARCH CTR., RELIGIOUS HOSTILITIES REACH SIX- YEAR HIGH 8 (2014) [hereinafter PEW, RELIGIOUS HOSTILITIES], http://www.pewforum.org /files/2014/01/RestrictionsV-full-report.pdf (regarding data for 2007–2012). 9 See PEW, RELIGIOUS HOSTILITIES., supra note 8, at 8 fig. Note that separate calcula- tions for moderate and low restrictions were not made for the 2013 data. 10 PEW RESEARCH CTR., supra note 1, at 4. 11 Id. 12 Id. at 4 (providing data for 2013); PEW, RELIGIOUS HOSTILITIES, supra note 8, at 8 (providing data for the years 2007–2012). The following chart, indicating the percentage of the world’s population living in countries with various levels of restrictions, was adapted from these two sources. \\jciprod01\productn\N\NDL\91-4\NDL406.txt unknown Seq: 4 11-MAY-16 11:36 1422 notre dame law review [vol. 91:4 100 90 80 70 High or Very 68 67 70 60 75 74 76 77 High Restrictions 50 40 Moderate to Low 30 Restrictions 20 32 33 31 10 25 26 24 23 0 June 2007June 2008June 2009June 2010Dec. 2011Dec. 2012Dec. 2013 II. CORRELATIONS BETWEEN VERY HIGH AND HIGH RESTRICTIONS ON RELIGION AND A DOMINANT RELIGIOUS GROUP In reviewing this Pew data, it is noteworthy that most of the countries with very high or high legal or social restrictions on religion are places where the largest religious group represents either a supermajority (which here is calculated as being over seventy percent) or at least a majority (over fifty percent). Utilizing statistics involving self-reporting as a way of establishing religious affiliation, there is a strong set of correlations.13 A. Government/Legal Restrictions on Religious Freedom and Dominant Religious Groups There is a high correlation between countries with very high or high legal restrictions on religious freedom and countries where the dominant religious majority group represents a supermajority of more than seventy per- cent of the population of that country. In the February 2015 Pew Report, there were eighteen countries with very high and thirty-six countries with high government/legal restrictions on religious freedom.14 13 For the sources of Pew’s demographic
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