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Freedom of Religion

27 Sep 2016 Editors’ note: The following is a paper delivered by the Rev. Elias D. Mallon, S.A. Ph.D., CNEWA’s external affairs officer, at Fordham University on 23 September 2016. The occasion was a full-day program entitled “Pope Francis’ Call for Escaping Poverty: Practical Examples and New Proposals” sponsored by CAPP-USA and Fordham University. CAPP, which stands for Centesimus Annus Pro Pontifice, is a lay-led papal organization composed of Catholic business, academic and professional leaders whose purpose is to promote the social teachings of the Catholic Church.

I would like to thank CAPP-USA (Centesimus Annus pro Pontifice) and Fordham University for inviting me to be part of this panel today. I am honored to be here today. I have been engaged in interreligious dialogue and more specifically the Christian-Muslim dialogue for almost forty years now. In addition, I have worked for United Nations NGOs for the past ten years. In that time I have been involved with issues of interreligious cooperation, defamation of religion and freedom of religion1 or, as the UN somewhat cryptically calls it, Freedom of Religion or Belief, without delineating what the difference might be.

My topic today is Pope Francis’s call for escaping poverty and freedom of religion as one of the indicators for that escape. In the last twenty years freedom of religion has become a major topic for theology and international law. The very frequency with which the topic appears can make it seem like a rather straightforward issue. I would like to suggest that such is most definitely not the case and that Pope Francis is aware of that. In the very short time I have, I would like to indicate how complex and difficult the topic is and to show how Pope Francis deals with it.

An awareness of the complexity of the problem is important if we are to prevent overly facile solutions which, in fact, might promote the freedom of one religion while curtailing that of another. Due to time limitations I can only list points. For those interested in a more in depth study of the problem I refer to Anat Scolnicov, The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights (London: Routledge, 2011) and Malcolm D. Evans, Peter Petkoff and Julian Rivers, edd., The Changing Nature of Religious Rights under International Law (Oxford: Oxford University Press. 2015).

I mentioned earlier the UN rather unsuccessful attempt to treat defamation of religion. One of the main reasons for the failure is that there is no universal understanding of religion as an (legal) entity perhaps because such a univocal understanding is impossible. Christians are accustomed to a religion that is built on a quasi-corporate model: there is a CEO, a corporate headquarters, a line of command and very often an articulated policy in the terms of theology, canon law etc. What most fail to realize is that the Christian model is not the normal one. In fact, most other world religions are built on a much more “horizontal” model. Thus Christians find it frustrating and “not normal” when there is no one who “speaks for Judaism, Islam, Buddhism, Hinduism, to say nothing of indigenous religions.” It therefore is not always clear on a very basic level where the right to freedom of religion resides (primarily?): in the individual and/or the institution, where such exists?

Another major change in the world of religion is the pluralistic society. If in the past religions existed in relative isolation from each other and enjoyed a cultural, linguistic, political and legal hegemony that is increasingly no longer the case. In very many parts of the world the major religions of the planet live side by side. In some places they live together as equals, in others as friendly or not so friendly competitors. Although in some parts of the world there is the resurgence of what I call the “denominational state,” that is generally not the case. What this means is that in a religiously pluralistic society, the right to freedom of religion can sometimes result in a conflict of rights. It seems that European legal scholars are more aware of this problem than are US scholars. It is, nevertheless, not an academic or theoretical problem. The rights of one religious group can and have impinged on the rights of another and this presents a well-nigh insoluble problem. The problem becomes acute when one religious group claims the right to call upon the coercive power of the state to enforce its theology or moral code.

Even where things appear quite clear, it is often misleading. No one — at least publically — would deny that ISIS engages in an egregious, totally illegal form of religious bigotry and persecution. Religious and non-religious people around the world — including the vast majority of Muslims — find ISIS morally and religiously abhorrent. And that is by any standard true. However, ISIS has been extremely careful to find “theological” justification for its atrocities. For example, when ISIS burned Mutah al-Kaseabeh, the downed Jordanian pilot, alive, there was an outcry in the Muslim theological community that burning alive was forbidden in Islamic law. ISIS had, nevertheless, researched traditional Islamic sources and developed a response in the form of a fetwa from their Authority for Research and Fetwas as to why it was permitted also from Islamic law.2 With no attempt to justify the criminal barbarism of ISIS, it is important to note that they believe they take pains to justify their barbarities through traditional Islamic categories and are, therefore, exercising their religion. The crucial question then becomes: at what point, therefore, does a group’s freedom to exercise its religion end or be constrained? And who decides that?

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