On 2nd June 2016 I had the privilege of attending the defense by Aaron R. Petty of his thesis ‘The Legal Conception of “Religion”’ as a member of the Opposition Committee. The central point the thesis aims to make is that the concept of religion employed by courts in the West is not as ‘transhistorical and transcultural’ as is sometimes tacitly assumed, but instead is heavily influenced by Christianity. As a result, the protection the right to freedom of religion or belief currently provides to, for example, Judaism is too limited.
I do not consider the idea that the right to freedom of religion or belief may have a strong relationship to the Christian heritage in particular to be very surprising in itself. It would, to the contrary, as Petty himself has to concede in the conclusion of his thesis, be quite a sensation to somehow discover that the legal conception of religion in the West had not been influenced by Christianity.
To argue on that basis, as Petty does, that the right to freedom of religion or belief had better not be relied upon when for example the freedom of speech suffices, is an altogether different matter. Constitutional law scholar Michael W. McConnell, amongst others, has elaborated upon similarities which more generally exist between particular Christian theological principles and some of the core doctrines of liberalism.
Thus, as McConnell puts it, '[w]hile theological in its origin, the two-kingdoms idea lent powerful support to a more general liberal theory of government. The separation of church from state is the most powerful possible refutation of the notion that the political sphere is omnicompetent – that it has rightful authority over all of life. If the state does not have power over the church, it follows that the power of the state is limited.'
The principle of separation of church and state, when interpreted in this manner, takes on a renewed relevance at a time when sovereignty claims by religious institutions are increasingly regarded by their critics as incompatible with the idea of state sovereignty being the only legitimate source of sovereignty. Thus, it is presented by Jean L. Cohen and others as if a clear choice will need to be made between a so-called jurisdictional approach to religious freedom and the modern liberal view that sees sovereignty within the democratic constitutional state as essentially monistic in nature.
The debate on where the ultimate source of sovereignty lies, however, has historically never been answered by Western democracies. What is more, liberal democracy is not even able to legitimately settle this issue in an unequivocal manner given its own principles, such as the right to freedom of religion or belief. Thus, the individual dimension of this right actually creates a solid foundation for the institutional dimension of the same right. Institutional religious autonomy is, in turn, foundational for the notion of limited government and as such for liberal democracy as a whole.