“Religion has never disappeared from the public arena of politics”
Political scientists Svenja Ahlhaus and Iman Al Nassre on their research on strategic litigation in the field of religious policy – Interview on state and religion in Western democracies – Religion and politics in the USA, India and Russia
Disputes over symbols such as the cross or the headscarf, the protection of religious minorities, or sexual and reproductive autonomy – conflicts over religion often end up in court, and not just in Germany. At the Cluster of Excellence “Religion and Politics”, political scientists Svenja Ahlhaus and Iman Al Nassre are investigating so-called strategic litigation – legal proceedings intended to bring about political or societal changes beyond the individual case. In this interview, project leader Ahlhaus and PhD student Al Nassre explain whether, from the perspective of political theory, religious strategic litigation is democratically legitimate. They also analyse the current international situation regarding religion and politics and explore their relationship between in the USA, India and Russia.
The issue of the separation of state and religion has long been viewed in Western liberal democracies as settled – through a constitutional secularism that guarantees ideological neutrality and religious freedom, while protecting against both state and religious interference. But, given the situations in the USA and Russia, for example, was this view premature?
Iman Al Nassre: Religion has never disappeared from the public arena of politics and manifests itself today in both old and new forms. This is less a matter of a return of traditional religious policy than of two interlinked developments. First, religion is once again becoming more closely tied to national identity in many countries. Christian symbols in public institutions, the invocation of a Christian heritage, or the notion of a “Christian nation” – these show that state neutrality, in the spirit of constitutional secularism, is increasingly being questioned. Second, religion is being used for political ends. Religious narratives serve as a justification for wars and violence, as well as for disputes over migration, national identity, gender roles and reproductive rights, usually by right-wing populists or those with an authoritarian viewpoint.
We can observe these developments across the world, the USA being a much-discussed example here. In Russia, the Orthodox Church legitimises the authoritarian state and the war against Ukraine. In India, Hindu nationalism links religion to an exclusivist notion of the state. In Turkey, Islam plays a central role in legitimising the authoritarian government. The political situation may be different in Poland and Germany, but there we can also see social conflicts over a “cultural heritage” and Christianity as a marker of social belonging. Religion has thus become once again the language in which key political conflicts beyond religious or religious-political concerns in the narrower sense are played out.
Faced with these challenges, what can democratic theory contribute?
Svenja Ahlhaus: On the one hand, there is already an established discourse within democratic theory on the question of what role religion should play in the public sphere. There has been intense debate for decades on how closely linked the state and religion should be. The question of whether religion is something “special” that requires specific procedures when it comes to political decision-making has also been discussed in political theory. There is therefore a broad body of literature to draw upon as we reassess the relationship between religion and democracy.
On the other hand, current developments are also giving rise to new questions that democratic theory is not yet adequately equipped for. The issue is no longer merely that of how religion and democracy are compatible, but also of how democratic systems can respond to religious nationalism and the political instrumentalisation of religion without restricting the right to practise religion freely. For example, there is frequent talk of the “instrumentalisation” of religion, without it being clear where the line should be drawn between problematic and unproblematic uses of religious arguments, traditions or institutions. We see a need for research in democratic theory here.
At the Cluster of Excellence, you are examining an example of how conflicts to do with religion are dealt with in democracies: namely, strategic litigation in the field of religious policy. What does this entail?
Iman Al Nassre: Courts are sites where fundamental conflicts over democracy, equality and also the role of religion are played out. However, legal debates not only take place in courts; they also shape public and political discourse. These are therefore not separate spheres.
Svenja Ahlhaus: Strategic litigation involves bringing legal claims that are intended to lead to political or social change beyond the individual case. We therefore begin by addressing the question of how strategic litigation should be evaluated in principle, before then examining litigation in the specific policy area of religion.
Iman Al Nassre: When the law is invoked in the context of religion, this can have implications for a number of areas. Examples include legal disputes over religious symbols such as the cross or the headscarf in public spaces; the scope and limits of religious freedom; and the protection of religious minorities such as Muslims and Jews. Strategic litigation can be pursued both by religious minorities seeking equal rights and by those belonging to the majority religion. Similarly, there are conservative interest groups seeking to defend or extend their privileges, as well as progressive social movements that use legal strategies to mobilise support for their cause or to generate attention.
In some cases of legal mobilization, religious arguments are used to assert positions on reproductive rights – that is, the human right to make free decisions regarding one’s body, sexuality and reproduction. A typical example is the case of the US company Hobby Lobby, which brought a high-profile legal challenge against the requirement to cover the cost of contraception for employees. The legal argument centred on the employer’s freedom of religion and conscience. The litigation pursued the broader political aim of extending religious rights to private companies, thereby enabling them to avoid complying with the requirements of the “Affordable Care Act”, better known as “Obamacare”. Furthermore, the ruling – which was favourable to the company – marked a milestone in the ongoing erosion of reproductive rights in the USA.
Svenja Ahlhaus: What is important from the perspective of democratic theory is not only how such legal proceedings change the law or set precedents, but also how they impact the democratic public sphere: in other words, how they are used to put issues on the agenda, empower social groups or highlight deficits in political representation.
Strategic litigation is also used in other policy areas, such as corporate, climate and anti-discrimination litigation. Is religion different here?
Svenja Ahlhaus: While we approach this question differently, we do agree that we cannot say in general that strategic litigation or the mobilisation of law is more problematic in the context of religion than in other policy areas.
In this research project, I argue that strategic litigation in the policy area of religion, just like strategic litigation in other areas, must be assessed from the perspective of democratic theory as an ambivalent practice. This is less about the political objectives of strategic litigation than about its impact on the public sphere: when strategic litigation is used to mislead the public, simulate political movements, or disseminate false claims about a lack of political representation, then it undermines the democratic processes of opinion and will-formation. These negative effects can also arise in strategic litigation in the context of religion, particularly when professional public relations campaigns lead people to believe that those litigating are marginalised groups, when in reality they are being used as figureheads by powerful interest groups. The “Hobby Lobby” case can be understood in this way.
Iman Al Nassre: Right-wing Christian litigation collectives operate both with and against the hegemonic systems of liberal democracies. Drawing on the Gramscian theory of hegemony, I therefore argue that anti-democratic actors strategically exploit existing Christian and liberal hegemonies within the law and beyond in order to challenge liberal-democratic systems and turn them against themselves. But this is not limited to groups whose arguments are based on religion.
How does the project’s theme fit into the current religious-political landscape?
Svenja Ahlhaus: Our research project also examines the growing political role of religions and how they are instrumentalised. But in essence there is a dual instrumentalisation here: how do certain actors use both religion and the right to legal contestation to achieve their political ends, and when does this become a problem for democracies? A new research project recently approved by the DFG will focus more strongly on this “anti-democratic strategic litigation”, which also includes intimidation lawsuits, whose aim is to discourage critics. The question that then arises is how democracies can defend themselves against such forms of strategic litigation. (vvm)