'Religion as Identity' by Avigail Eisenberg, a paper for delivery at the 2014 Annual Meeting of the APSA,
examines
the shift in how religious freedom is understood as a matter of
protecting individual choice to thinking about it as a matter identity. According to the
choice approach, the state must protect the individual’s freedom to choose but it cannot
be expected to bear the costs of the religious choices citizens make. The identity approach
treats the claims individuals and groups make about their religious commitments as nonnegotiable
facts rather than choices and considers the failure of the state to protect these
commitments as unjust because it exposes the individual to disrespect and disadvantage,
and stigmatizes and excludes them from full membership in the polity. This paper
examines the political context in which the identity approach has emerged in the last 50
years. It then examines three implications for protection of religious freedom of this shift
from choice to identity. Such a shift 1) enhances the capacity of courts to address claims
of historical injustice 2) leads courts to focus on the religious practices at a group rather
than an individuals level and 3) increases the pressure on courts to assess the authenticity
of religious beliefs and practices. These implications lead to significant challenges for
public institutions, which are discussed in the final section of the paper.
Eisenberg comments that
In the last 50 years, one of the most significant changes to the protection of rights in
western democracies has occurred due to a shift in the approaches taken in the public
sphere to religious freedom. Whereas religion was once treated as a matter crucial to
individual freedom to choose one’s most deeply held beliefs and to follow one’s
conscience, it is now increasingly viewed as an un-chosen identity similar to culture or
ethnicity, which must be accommodated in order to treat people fairly. While ‘choice’
and ‘identity’ are not mutually exclusive perspectives, what has been referred to as the
choice and the identity approaches in jurisprudence1 have different political aims, impose
different obligations and pressures on political institutions, and motivate distinctive ideas
about the nature of citizenship and the public sphere.
Perhaps the greatest benefit of a shift from choice to identity is that it has
provided religious groups with a better opportunity to present arguments about historical
and group-based injustice, which are arguments easily ignored when religious freedom is
understood primarily as a means to protect individual choice. Whereas the choice
approach focuses on restrictions that limit individual freedom to choose their religious
commitments and manifest their chosen practices, the identity approach treats religious
commitments as part of a person’s identity and therefore as a non-negotiable feature of a
person which the state must respect in order to treat people as equals. According to the
identity approach, states that restrict religious practices risk placing citizens in the
impossible position of being true to their deepest religious convictions or having access to
the benefits of citizenship.
This paper builds on a distinction found in legal scholarship between the choice
and identity approaches to religious freedom3 to explore the benefits and drawbacks of
each approach to the democratic practices of western states. I begin by exploring the
tension between these two approaches in recent legal debates and decisions about
freedom of religion in Canada, the United States and Europe, and then examine some
consequences that this tension on public decision-making and public institutions,
especially courts. As the paper shows, the distinction between the choice and identity is
by no means seamless or uncomplicated. In most cases, both matters of choice and
identity are at stake and judges usually disagree about which is the best approach to
follow in resolving difficult cases. The aim here is to explain what this tension looks like
today, and to examine the implications and risks that follow from it.
Eisenberg concludes
Choice and identity represent different frameworks for public decision making about
religious freedom and these frameworks illuminate different kinds of injustice that are
associated with limiting religious freedom. On my view, both frameworks are imperfect.
Both frameworks operate on the basis of a partial fiction about religious commitment;
both involve using the law, which is at best a blunt instrument, to situate and resolve
conflicts about religion, and each distorts claims or leads to serious risks, including risks
to the groups that advance claims of injustice in the first place. That said, the application
of these frameworks in real world settings helps to illuminate some of the challenges that
courts and other public institutions confront in deciding cases about religious freedom.
Whereas the observations here do not provide adequate guidance about how
conflicts about religious freedom ought to be decided, they point to some interim
conclusions that might be helpful when considering how best to resolve conflicts. First,
whereas the risks of an identity approach are serious, the limitations of the choice
approach have become impossible to ignore. For example, state policies that ban veils
amongst public employees, or favour religious symbols on school walls, are the targets of
criticism today, in large part, because they are viewed as buying into the myth that
individuals are free to choose their religious commitments and should be liable for the
consequences of their choices. Even if the identity approach does not inform the
majority’s decisions in most legal cases, it increasingly informs the way in which publics
respond critically to these decisions.
Second, the strategic and often deeply political ways in which religious freedom is
defended in the public sphere can obscure internal group pluralism yet, a sociologically realistic
approach to religious commitment may be unsuited to advancing a convincing
case for rectifying injustice towards a group, and this fact is the source of a dilemma for
many groups that have just grievances against state policies. As the identity approach
shows, the most convincing case for tracking injustice sometimes creates an incentive for
groups to generalize and even exaggerate the importance and role of their practices.
Finally, diversity arises from our distinct perspectives, which are, in large part, the
product of distinctive group histories and the experiences and struggles that inform these
histories. Today, the expectation is that democratic institutions, including courts, should
be prepared to recognize these distinctive group standpoints and the struggles that have
informed them. As Rawls cautioned, without recognizing this deep diversity, we are left
with our ‘mutual suspicions and hostilities’ based on false suppositions that “our
differences are rooted solely in ignorance and perversity, or else in the rivalries for
power, status, or economic gain.” This means that sometimes courts must assess
evidence about the role and significance of a religious practice even if doing so places
onerous demands on them because the alternative to recognizing different conceptions of
the world presents even greater challenges.
