Constitutionalism in Rough Seas: Balancing Religious Accommodation and Human Rights in, through, and despite, the Law

By Mirjam Künkler, Hanna Lerner, and Shylashri Shankar
American Behavioral Scientist, 26 May 2016

The goal of this special issue is to highlight cultural, social, and political contexts and how they have affected the balance struck between rights protection and religious accommodation, and more specifically the interplay between the constitutionalization of religion on the one hand and societal tensions over issues of religious identity or religious practice on the other. The five articles focus on the social and political contestations surrounding the creation of laws that attempt to balance different sets of rights, during the constitution-writing stage and its subsequent interpretation by lawyers, politicians, judges and social movements. The articles show how the balance between religious accommodation and human rights protection is sometimes achieved by or through the law, and sometimes despite it. Under certain conditions, constitutional and broader legal means facilitate the mitigation of conflicts over religious issues, while under others recourse to the law may deepen and sharpen the very conflict over religion that the legal action (particularly the turn to courts) purports to resolve. And in some cases, rather than producing social, political or religious change, constitutions merely reflect compromises that have been achieved prior to the constitutionalization of religion, while the de-facto changes in particular regulations or practices related to religion may be determined outside the arena of constitutional law, for example by ordinary legislation or bureaucratic regulations. In particular, the contributions accentuate the influence of domestic actors—key elites, courts, political parties, and civil society groups—in shaping the boundaries between the domains of religion and the state in constitutions, laws, and their interpretations, and the consequences of this boundary-drawing for religious polarization and rapprochement.