Secularism & Separation of State and Religion 5.1

CHAPTER FIVE SECULARISM & SEPARATION OF STATE AND RELIGION 5.1 Introduction Th e previous Chapter dealt with a number of states which lack a fi rm positive identifi cation with a religion and some of the Governments of these states, it was concluded, can largely be considered de facto secular. Th is Chapter deals with more outspoken forms of secularism and separationism (a policy of strict separation of state and religion). Th ough there are important overlaps, and although, moreover, domestic jurisprudence drawing on these concepts has in practice oft en largely erased the diff erences in implications, ‘secularism’ and ‘separation of state and religion’ can be analytically distinguished from each other. In this Chapter it will become apparent that many states constitutionally establish themselves as secular states, many states constitutionally sepa- rate religion from the state, whilst some states, in fact, do both. A secular state declares that it will not be bound by religious laws or principles. In establish- ing itself as a non-religious and non-denominational state, the state denies any form of positive identifi cation with religion. Historically, such proclamations of secularity were of course particularly intended as a means of cutting the ties with the dominant religion or church. A constitutional secular state deliber- ately and outspokenly positions itself as impartial with regard to doctrinal questions of religion. Separation of state and religion can be considered a legal-political endeavour aimed at internalizing and consistently preserving a regime in which the state apparatus and religious institutions do not interfere with each other’s activities. Notwithstanding these preliminary theoretical observations, it will be clear that maintaining a secular status necessitates a signifi cant degree of separation; whilst upholding the separation between the state and religion presupposes a fairly secularist Government. Firstly, ‘secular states’ will be identifi ed and discussed (section 5.2). Subsequently, the principles of ‘separation of state and religion’ (section 5.3) and so-called ‘non-establishment clauses’ (section 5.4) will be analysed. Section 5.5 endeavours to further chart the legal ramifi cations of these principles on the basis of existing state practice. 5.2 Secular States In this study, states which expressly (i.e. constitutionally) position themselves as non-religious or non-denominational will be considered “secular states”. 112 Chapter Five A constitutional declaration of secularity means, fi rst and foremost, that the state does not wish to invoke religion as a justifi cation for its authority, actions and decisions. It must be emphasized that proclamations of secularity, both historically as well as presently, in the majority of cases denote offi cial impartiality in matters of religion rather than offi cial ‘irreligiosity’.1 Secular states in that respect should certainly not to be confused with declared atheist or anti- religious states.2 Having said that, the offi cial secularity of the state (that is, secularism as impartiality) may in practice translate into instances of religious scepticism or ideological secularism. Th e precise legal and practical ramifi cations of declarations of state secularism vary from state to state (these ramifi - cations will be charted in section 5.5). Offi cial state secularism as the innovative endeavour to legitimize state authority precisely by not anchoring it in the dominant religious doctrine stems from the late 18th century and was instigated by American and French Revolutionary ideology. It must be observed that secularism as a de facto stand- ard has been practised for much longer. One can think, for instance, of the Punjab under the secular rule of Maharaja Ranjit Singh (1780–1839; r. 1801– 1839).3 Th e United States of America and France compete for the distinction of being the fi rst offi cially secular state.4 Th e infl uence of American revolutionary discourse on secularism ultimately resulted in the infamous ‘non-establishment clause’ (which will be further discussed below). With respect to France, it may be noted that the Revolution of 1789 largely secularized the state in a 1 It is important to distinguish between secularism simply as a condition or quality (i.e. secularity) and secularism as a principled notion or an ideology. See also, e.g., David Martin, On Secularization: Towards A Revised General Theory (Aldershot: Ashgate, 2005), p. 81 and p. 85. In the context of comparative constitutional analysis, “secularity” (i.e. of a non- religious nature, or: not overtly or expressly religious) would perhaps be a more appropriate label than “secularism” (i.e. a more ideologically motivated secular position). For the simple reason that such has become common usage, here “secularism” will be used in the meaning of secularity unless explicitly indicated otherwise (“ideological secularism”). Also, an offi cial state of secularity does not, as a rule, in itself foster secularization of society; cf. Martin, ibid, p. 47 et seq. 2 See next Chapter on state atheism. Some states make this important distinction explicit in their laws. Colombia, for instance, has codifi ed a non-establishment clause to which it has explicitly added: “Nevertheless, the State is not atheistic, agnostic, or indiff erent to the religious feelings of the Colombians” (art. 2 of Law 133 of 23 May 1994 on Religion; hereinaft er: “1994 Colombian Law”). 3 See Kartar S. Duggal, Ranjit Singh: a Secular Sikh Sovereign, (Dehli: Abhinav Publications, 1989). 4 E.g. Bryan R. Wilson, The Social Dimensions of Sectarianism and New Religious Movements in Contemporary Society, (Oxford: Clarendon Press, 1990), p. 25, who describes the US as the fi rst secular state in the sense of “the fi rst state which does not embrace specifi c religious principles as part of its legitimation”; vs., e.g. Jean Baubérot, Th e Secular Principle (discussion paper reproduced by the Embassy of France in the United States and the Embassy of France in the United Kingdom, 2001): “While secularity is in no way exclusive to France –other countries have more or less adopted it, each in its own fashion, and there are schools of thought on the subject in several– it may nevertheless be said that, overall, we are here dealing with a ‘French invention’ ”..

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