Regimes of Religion and State: A Widening Atlantic?

Abstract

The ‘Atlantic Gap’ usually refers to differences in religious commitment between the United States and Europe. In this paper, I argue that the gap extends beyond religious intensity to ‘regimes’ of religion and state, defined as the system of norms, rules, decision styles and other elements that influence how religion is treated in the public square. To illustrate the differences between the contrasting American and Western European regimes, I compare how the two systems react when a specific religious minority – Muslims – attempts to build religious facilities. In this case, despite comparable levels of public hostility to Muslims on both sides of the Atlantic, the American system provides considerably more legal protection to religious minorities than the Western European regime.

Notes

¹Nancy Foner and Richard Alba, ‘Immigrant Religion in the U.S. and Western Europe: Bridge or Barrier to Inclusion?’, International Migration Review, 42 (2008), pp. 360–392.

²Of course, Muslims are not new to either continent, having been an especially significant force in Europe during the Middle Ages. However, the contemporary Muslim population in Western Europe is predominantly the product of the post-Second World War economic boom that imported manual and service laborers from eastern countries. A large number of Muslims also immigrated to the United States following the 1965 revisions to the system of immigration quotas.

³The European figures depend on where one draws the border between Western Europe and the rest of the continent. Excluding Russia and the former satellite states reduces the Muslim estimate by almost 17 million. See note 4 for details on sources.

⁴These figures are drawn from the Pew Forum on Religion and Public Life, ‘The Future of the Global Muslim Population’, January 2011. The current population estimates can be accessed at http://features.pewforum.org/muslim-population-graphic/. It is notoriously difficult to estimate the size of religious communities. Cesari, for example, claims that Muslims constitute only about 3% of the European population but accepts a percentage for the United States that is massively higher than survey data suggest. (See Jocelyne Césari, When Islam and Democracy Meet: Muslims in Europe and the United States (New York: Palgrave Macmillan, 2004), chapter 1.) In the absence of a census estimate for Muslims, a ‘religious’ inquiry forbidden under US law, there are also widely differing reports of the size of the American Muslim community. The estimates, which range from 2 to 8 million, would make Muslims somewhere between 1 and 8% of the entire population, with the most sophisticated studies emphasizing the low end of the distribution. See Tom W. Smith, ‘The Muslim Population of the United States: The Methodology of Estimates’, Public Opinion Quarterly, 66 (2002), pp. 404–417. Even with these ranges, European Muslims are vastly more numerous than their American coreligionists in both absolute and relative terms.

⁵The two largest groups among European Muslims are Arabs and Turks, most of whom came from the former colonial possessions of major European states. The largest proportion of American Muslims are thought to be either native-born African Americans affiliated with the Nation of Islam, formerly known as Black Muslims, or South Asians from Pakistan, India, Sri Lanka and elsewhere. Largely because of the South Asians, many of whom hold advanced degrees and work in the technical sector, American Muslims on average are more economically integrated and less ghettoized than Muslims in Europe, who arrived as guest workers to fill low-level jobs in service, construction and manufacturing. For a good summary of information on European Muslims, see European Monitoring Center on Racism and Xenophobia, Muslims in the European Union: Discrimination and Islamophobia (Vienna: EUMC, 2006).

⁶Amaney Jamal, ‘Muslim Americans: Enriching or Depleting American Democracy’, in Alan Wolfe and Ira Katznelson (eds) Religion and Democracy in the United States (Princeton, NJ: Princeton University Press), pp. 89–113.

⁷James Kuklinski, Michael D. Cobb and Martin Gilens, ‘Racial Attitudes and the ‘New South’, Journal of Politics, 59 (1997), pp. 323–349.

⁸Robert Wuthnow, America and the Challenges of Religious Diversity (Princeton, NJ: Princeton University, 2005). The data can be accessed at the Association of Religion Data Archives, http://www.thearda.com/Archive/Files/Descriptions/DIVERSTY.asp

⁹Robert Putnam and David Campbell, American Grace (New York: Simon and Schuster, 2010), p. 505.

¹⁰I say ‘so-called’ because the structure was not a mosque but a community center with a prayer room, and the site was not at Ground Zero but some blocks away, hidden from view by tall buildings.

¹¹Adam Berinsky, ‘The Two Faces of Public Opinion’, American Journal of Political Science, 44 (1999), pp. 1209–1230.

¹²Steven D. Krassner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in Steven D. Krassner (ed.) International Regimes (Ithaca, NY: Cornell University Press, 1983), p. 1.

¹³For a useful overview of the regime concept, see Oran R. Young, ‘International Regimes: Problems of Concept’, World Politics, 32 (1980), pp. 331–356.

¹⁴Achim Seifert, ‘Religious Expression in the Workplace: The Case of the Federal Republic of Germany’, Comparative Labor Law and Policy Journal, 30 (2009), pp. 536–537.

¹⁵Young, op. cit.

¹⁶Kenneth D. Wald, ‘Religion and the Workplace: A Social Science Perspective’, Comparative Labor Law and Policy Journal, 30 (2009), pp. 471–484. For a somewhat broader account of regime evolution, see Kenneth D. Wald, ‘The Public Role of Private Religion in the United States’, in Jurgen Gephardt (ed.), Religious Cultures – Communities of Belief (Heidelberg: Universitätverlag, 2009), pp. 195–218.

¹⁷Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, NJ: Princeton University Press, 2003).

¹⁸Thomas Albert Howard, God and the Atlantic (New York: Oxford University Press, 2011), p. 13. On the religious dimension of the Peace of Westphalia, see Benjamin Straumann, ‘The Peace of Westphalia as a Secular Constitution’, Constellations, 15 (2008), pp. 173–188.

¹⁹The obvious exceptions were African Americans and Native Americans.

²⁰This was particularly true for Jews. See Kenneth D. Wald, ‘The Puzzling Politics of American Jews’, Guiding Papers Series, American Religion Data Archive, accessed at www.thearda.com/rrh/papers/guidingpapers/wald.asp (accessed 7 July 2011).

²¹Michael Foley and Dean R. Hoge, Religion and the New Immigrants: How Faith Communities Form our Newest Citizens (New York: Oxford University Press, 1984); Fred Kniss and Paul Numrich, Sacred Assemblies and Civic Engagement: How Religion Matters for America's Newest Immigrants (Piscataway, NJ: Rutgers University Press, 2007).

²²Foner and Alba, op. cit.

²³Nonprofits under section 501(c3) of the tax code are often excluded from income and property taxation, and donations to them may be deducted from citizens' earnings in calculating the tax burden.

²⁴John G. Francis, ‘The Evolving Regulatory Structure of European Church–State Relationships’, Journal of Church and State, 34 (1992), pp. 775–804.

²⁵Even in the absence of a legally established state church, as Seifert shows in Germany (‘Religious Expression in the Workplace’), the law often conceptualizes ‘religion’ as it is defined, practiced and organized by the dominant religious communities in the state. For evidence that this legacy militates against Muslim fortunes even in nations that have formally disestablished religion, see the essays in W.A.R. Shadid and P.S. Van Koningsveld (eds), Muslims in the Margin: Political Responses to the Presence of Islam in Western Europe (Kampen: KOK Pharos, 1996).

²⁶Robert T. Handy, A Christian America? (New York: Oxford University Press, 1984).

²⁷Howard, op, cit., p. 15.

²⁸Claes H. de Vreese, Hajo G. Boomgaarden and Holli A. Semetko, ‘Hard and Soft: Public Support for Turkish Membership in the EU’, European Union Politics, 9 (2008), pp. 511–530.

²⁹Aristide Zolberg and Long Litt Woon, ‘Why Islam is Like Spanish: Cultural Incorporation in Europe and the United States’, Politics and Society, 27 (1999), p. 19.

³⁰Joel S. Fetzer and J. Christopher Soper, Muslims and the State in Britain, France and Germany (New York: Cambridge University Press).

³¹Jocelene Cesari, ‘Mosque Conflicts in European Cities: Introduction’, Journal of Ethnic and Migration Studies, 31 (2005), pp. 1015–1024.

³²Ibid.

³³David W. Hendon, ‘Notes on Church–State Affairs’, Journal of Church and State, 52 (2010), 762.

³⁴Jerold L. Waltman, Religious Free Exercise and Contemporary American Politics: The Saga of the Religious Land Use and Institutionalized Persons Act of 2000 (New York: Continuum, 2010).

³⁵The original attempt to overturn Smith, the Religious Freedom Restoration Act (RFRA), was largely overturned by the US Supreme Court in 1997. The Court's decision in Boerne v. Flores appeared to leave room for a more narrowly tailored law that would restore strict scrutiny over state actions affecting religious land use and the religious rights of prisoners. RLUIPA was the result of this opening.

³⁶Carolyn N. Long, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence, KS: University Press of Kansas, 2000).

³⁷Laws aimed at a specific religious group, such as the statutes passed by the Florida city of Hialeah to prevent worship by members of the Santeria church, are illegal because they are not deemed ‘of general applicability’. There was no evidence that Alfred Smith was targeted because he was a member of the Native American church; Oregon's law forbade any use of illegal substances.

³⁸Douglas Laycock, ‘The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed’, Journal of Law and Religion, 8 (1990), pp. 99–114.

³⁹On legal efforts to compromise religious freedom, see Lee Boothby, ‘Government as an Instrument of Retribution for Private Resentments’, in Dean M. Kelley (ed.) Government Intervention in Religious Affairs 2 (New York: Pilgrim Press, 1986), pp. 79–106. Data on public support for such efforts can be found in Tom W. Smith, ‘A Survey of the Religious Right: Views on Politics, Society, Jews and other Minorities’ (New York: American Jewish Committee, 1996).

⁴⁰Russ Blackburn and Randall Reid, ‘How the Worst Publicity Can Bring out the Best in a Community’, PM: Public Management, 93 (2011), pp. 6–10. Although the Wall Street Journal described the sponsor as a ‘megachurch’, it had fewer than 50 members at the time of the incident.

⁴¹One might imagine an argument where the minister claimed that his religious freedom was compromised by the campaign against the Koran burning. The only state action relevant to such a claim was the stated intention of local authorities to douse the burning books immediately upon ignition and levy a fine on the minister. However, it is hard to see this as a burden based on religiously inspired speech (which generally covers both actions and words). The community was in a long-term drought and permitted open burning of any kind only with a permit from the local fire department. Had the minister sought such a permit, it would have been granted. Even if this was ‘a substantial burden’ on religious activity, which is highly dubious, the statute in question was clearly a law of general applicability and the local government would undoubtedly have been able to justify it in terms of strict scrutiny. The sheriff of the county eventually billed the Church for almost $200,000 in law enforcement expenses, but this was a symbolic act that would almost certainly have been deemed unconstitutional on free speech grounds had the claim been prosecuted.

⁴²Andrew Walsh, ‘Political Islamophobia’, Religion in the News, 13 (2011), pp. 2–4, 22–26.

⁴³In 1989, the US Supreme Court explicitly protected flag burning as a constitutionally sanctioned form of free speech. Burning a Koran would almost surely be covered by this precedent.