Christianity

the term “religion.” There was one major international effort to explain the underlying rights protected under the concept of religion or belief,[5] and the UN Human Rights Committee issued an important General Comment on the scope of freedom of religion or belief within the International Covenant on Civil and Political Rights.[6] Nevertheless, the term “religion” remains undefined as a matter of international law. The absence of a definition of “religion” is not peculiar to international human rights conventions; most national constitutions also include clauses on freedom of religion without defining “religion.”[7] Thus we are presented, on the one hand, with important provisions guaranteeing fundamental rights pertaining to religion, but on the other hand the term itself is left undefined. Of course, the absence of a definition of a critical term does not differentiate religion from most other rights identified in human rights instruments and constitutions. However, because religion is much more complex than other guaranteed rights, the difficulty of understanding what is and is not protected is significantly greater.[8]
It is fairly common for legal analyses of freedom of religion or belief to avoid a serious discussion of the definitional problem, even among the most
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important works.[9] Among non-legal scholars in philosophy and religion there is a very lively debate as to whether the word “religion” can or should be defined.[10] It has been observed that the “effort to define religion is as old as the academic study of religion itself.”[11] In fact, “dozens, if not hundreds of proposals have been made, each claiming to solve the definitional problem in a new and unique way. Needless to say, no one definition of religion has garnered a consensus, and the definitional enterprise, as well as the debate over the very need for definitions, continues in full vigor.”[12]
While academics have the luxury of debating whether the term “religion” is hopelessly ambiguous, judges and lawyers often do not. Asylum-case adjudicators, for example, may be called upon to decide whether there is a “well-founded fear of being persecuted for reasons of . . . religion” regardless of whether the 1951 Refugee Convention offers a definition.[13] Similarly, judges on the European Court of Human Rights may be required to give meaning to the term “religion” for purposes of interpreting Article 9 of the European Convention. Judicial decisions about what constitutes religion make a very real difference in the lives of persons who may or may not obtain refugee status, or in the economic viability of a group that may or may not be recognized as a tax-exempt religious association.[14]
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Asylum law is not the only place where the term “religion” is used in international human rights law, but it is probably the place that gives rise to the greatest number of cases where adjudicators make decisions based upon the meaning of the term.[15] In a study prepared for the UN High Commissioner for Refugees, Karen Musalo presented a detailed examination of religious persecution in refugee cases decided in the United States, Canada, Australia, and New Zealand.[16] Musalo’s examination of the adjudicators’ decisions revealed, in many cases, serious misunderstandings not only about how “religion” is defined, but what religion is. Indeed, the adjudicators often appear to have made assumptions about the meaning of religion on the basis of their own experiences as members of the educated elite in western, industrial societies. Gvien Musalo’s detailed analysis, we can identify the following fairly typical misunderstandings of the nature of religion and religious persecution in refugee cases:
—assessing claimants’ credibility on the basis of their knowledge of the doctrines of their religions;
—assessing claimants’ credibility on the basis of the consistency of their personal behavior with the doctrines of their religion;
—failing to understand that religions sometimes persecute members of their own religious communities in order to ensure conformity with doctrines and practices;
—failing to understand the sometimes complex interrelationship of religious persecution and gender;
—failing to understand the sometimes complex interrelationship of religious persecution and ethnicity;
—failing to understand that what might initially appear to be only a minor inconvenience might reasonably constitute persecution to a claimant;
—failing to understand that persecutors’ attitudes toward religion may be more relevant for adjudicating a religious persecution claim than scholarly definitions of “religion”; and
—incorrectly assuming that “neutral laws” or “laws of general applicability” cannot cause religious persecution.
Thus, the most serious conceptual obstacles for adjudicators may derive from well-intentioned but mistaken assumptions about what religion means from
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their personal perspective or that of scholars rather than from the perspective of how religious discrimination and religious persecution are actually practiced. These mistaken notions regarding religion, which are found throughout asylum decisions, may well reveal underlying conceptual errors in the other cases involving freedom of religion or belief as well.
Part I of this Article will discuss some of the technical problems surrounding attempts to define “religion.” Part II will identify three facets of religion that should be more helpful in understanding discrimination and persecution than are definitions of the term “religion.” Part III will provide examples of how religious persecution and religious discrimination actually manifest themselves.
I. Difficulties in Defining “Religion”
In the three epigraphs at the beginning of this Article, neither the fictional Mr. Thwackum, the real English Charity Commission, nor the equally real U.S. Supreme Court was attempting to define “religion” for purposes of international human rights law.[17] The definitions nevertheless exemplify a variety of mistakes that have been made by adjudicators in refugee law as well as others attempting to interpret the meaning of “religion” in human rights law.[18]
A. The Underlying Methodological Difficulties in Defining “Religion”
There are two important aspects of definitions of religion. The first involves the underlying metaphysical assumptions about the nature of religion (what is being defined). The second involves the type of definition that is to be used (how the term is defined).
1. Assumptions about the Underlying Nature of Religion
Definitions of religion necessarily involve assumptions about its underlying nature. “[E]ach and every definition of religion implies at least some theoretical conclusions . . . .”[19] One of the many difficulties encountered in reaching a consensus on a legal definition of the term is that, at root, “no convincing general theory of religion exists.”[20] Three of the principal theories about religion are: first, religion in its metaphysical or theological sense
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(e.g., the underlying truth of the existence of God, the dharma, etc.); second, religion as it is psychologically experienced by people (e.g., the feelings of the religious believer about divinity or ultimate concerns, the holy, etc.); and third, religion as a cultural or social force (e.g., symbolism that binds a community together or separates it from other communities). Definitions of religion typically begin by assuming one of these three different theoretical approaches. Of course, even within each of these three approaches there will be widely different assumptions. Sigmund Freud and Rudolph Otto, for example, both focus on the psychological dimension of religion, though Freud saw religion as a set of false beliefs while Otto saw it as a powerful feeling of the Other.[21]
2. Types of Definition: Essentialist or Polythetic
Once the underlying theoretical assumptions are identified, there still remains the difficulty of the form that the definition will take.[22] Two of the most important forms of definition may be characterized as the “essentialist” and the “polythetic.”
An essentialist definition identifies the elements that are necessary for something to be designated as a “religion.” In the epigraphs at the beginning of this Article, Mr. Thwackum and the Charity Commissioners both offered essentialist definitions of religion. Thwackum’s essentialism reduced the meaning of “religion” to the “Anglican Church.” The Charity Commissioners apparently assume that religion must be theistic (and perhaps even monotheistic). Whenever a legal definition is essentialist, it assumes that religion has one or more elements in common with all other religions.
The second type of definition, the polythetic, does not require that all religions have specific elements in common. The most widely known illustration of a polythetic approach to definitions generally is Ludwig Wittgenstein’s explanation of the meaning of “game.” Wittgenstein described the wide variety of activities for which we use the term “game,” but notes that there is no single feature that all games have in common.[23] Yet, he believes, we can see resemblances among the different types of activity that are all called games, even if they do not share any features in common. “I can think of no better expression to characterize these similarities than ‘family resemblances’; build, features, colour of eyes, gait, temperament, etc. overlap and
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criss-cross in the same way.”[24] The statement of the U.S. Supreme Court in the epigraph above approximates the polythetic approach when it accepts in the religious believer something “parallel” to the orthodox belief in God.[25]
The definitions contained in the epigraphs, as well as other definitions of “religion” (including legal definitions) typically can be analyzed in terms of the components above: the underlying assumptions about religion and the form of definition that is offered. Mr. Thwackum’s definition assumes the underlying metaphysical truth of the Church of England (i.e., it is not a psychological or sociological definition) and it is in the essentialist form. The Charity Commissioner’s definition, which is essentialist like Thwackum’s, nevertheless looks to psychology for the underlying nature of religion. The U.S. Supreme Court’s definition, like the Charity Commission’s, is psychological, but it is also polythetic.
B. Typical Deficiencies in Legal Interpretations of “Religion”
As discussed above, definitions of “religion” typically begin with assumptions about the nature of religion, and then are presented in either essentialist or polythetic form. Legal definitions of “religion” (whether in statutes or court decisions) follow this same general pattern. However, in addition to the difficulties that surround all attempts to define the term, legal definitions also must take into account other factors that standard definitions may ignore. Legal definitions of “religion” generally appear in the complicating contexts of either: (a) protecting freedom of religion, or (b) prohibiting discrimination (or persecution) of religion. Legal definitions do not simply describe the phenomenon of religion, they establish rules for regulating social and legal relations among people who themselves may have sharply different attitudes about what religion is and which manifestations of it are entitled to protection. Legal definitions, as a result, may contain serious deficiencies when they (perhaps unintentionally) incorporate particular social and cultural attitudes towards (preferred) religions, or when they fail to account for social and cultural attitudes against (disfavored) religions.
1. Incorporating Societal Value Judgments Regarding Familiar or Favored Religions
Statutory and judicial characterizations of religion may wrongly assume that familiar or favored creeds are real religions, while different or new creeds are either not religions or are only pseudo-religions. The most troubling examples of this deficiency are laws that differentiate between tradi-
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tional and non-traditional religions (as in Russia), or that differentiate between religions and sects (as in France). One extreme example from a judicial opinion is that of Judge Valticos on the European Court of Human Rights, who differentiates between the (acceptable) Greek Orthodox Church and the (unacceptable) Jehovah’s Witness faith. A member of the latter faith, who has been convicted in Greek courts for proselytism, is described by the judge as
a hardbitten adept of proselytism, a specialist in conversion, a martyr of the criminal courts whose earlier convictions have served only to harden him in his militancy . . . . He swoops on her, trumpets that he has good news for her (the play on words is obvious, but no doubt not to her), manages to get himself let in and, as an experienced commercial traveller and cunning purveyor of a faith he wants to spread, expounds to her his intellectual wares cunningly wrapped up in a mantle of universal peace and radiant happiness. Who, indeed, would not like peace and happiness?[26]
This language of Judge Valticos, although extreme, illustrates the bias that can enter into legal analysis. The epigraphs above from the Charity Commission and the U.S. Supreme Court are simply less blatant illustrations of the same problem.
Thus legal systems may explicitly or implicitly evaluate (or rank) religions. Depending on the attitudes of the evaluator, religions may be described in ways such as “good religion” versus “bad religion,” or, “religion” versus “non-religion.” Thus some might think of monotheistic religions in terms such as “traditional,” while polytheistic or non-theistic religions may be perceived as “primitive” or “superstitious.” Those with broader sensibilities might expand the traditional religions to include not only Christianity, Islam, Judaism, Buddhism, and Hinduism—but nevertheless find that other groups such as the Falun Gong or Scientologists are “not really religions” or are “sects” or “cults” and thus are not deserving of the label of “religion” either for purposes of receiving benefits or being protected against discrimination.
It is very common for legal systems to provide legal benefits to individuals or groups that are designated as “religious” (or some similar term). This, of course, leads many groups to seek the designation in order to obtain such privileges as tax benefits or legal personality. In some cases the designation serves principally to separate religious groups from other groups, such as sports clubs, political parties, or business entities. But, in many cases, the designation leads to a dispute between what is often considered to be “real” religion as opposed to “pseudo” religion. There are many pejorative terms that are used to describe such groups, including “sect,” “cult,” “splittist,”
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“heretic,” “apostate,” and “schismatic.” In some particularly extreme cases, adjectives will be piled onto these already pejorative terms and groups will be described, often without any supporting evidence, as “totalitarian sects” or “destructive cults.” Whereas scholars of religion, including sociologists and anthropologists, are generally critical of such derogatory labels, which typically derive from emotional hostility rather than from any systematically explained difference with more traditional religions, the attitudes may affect legal judgments as well.[27] The range of legal understandings of religion range from very broad (as in India) to very narrow (as in Saudi Arabia). Thus “religion” may be seen not simply as a neutral description of such things as theological beliefs or ritual practices, but as judgment on whether the particular beliefs or actions are acceptable to the society or the legal system.[28] Thus, a definition of “religion” may not simply be neutral, but may contain an inappropriate societal value judgment regarding particular beliefs or actions with “good” beliefs being characterized as “religions” and “bad” beliefs being characterized as “cults” or “heresies.”
2. Failing to Consider Religion from the Perspective of Its Adversaries
Conscientious jurists may attempt to overcome the definitional and societal limitations described above by consulting the works of scholars and experts, including anthropologists, sociologists, theologians, and historians of religion. These conscientious jurists might, for example, carefully examine definitions of religion offered by Emile Durkheim, Rudolf Otto, Paul Tillich, Max Weber, Clifford Geertz, or Joseph Campbell. But consulting such scholars will not necessarily explain what religion means in the context of “religious discrimination” because the scholarly definitions do not describe what religion means to those who are discriminating and persecuting. This problem can perhaps be seen more easily by looking to the analogous cases of discrimination on the basis of race or gender.
When asylum adjudicators, for example, are called upon to make determinations about racial persecution, it will probably be of no utility for them to seek a definition of “race” from experts such as biologists, geneticists, and anthropologists. In fact, under the prevailing viewpoint, race is not a scientific concept; indeed, it is sometimes argued that attempts to define “race” are themselves motivated by racism rather than by legitimate scientific in-
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terests. Regardless of whether race is a scientific category with biological or genetic markers, there is no doubt that racism exists and that people are persecuted because of their perceived racial characteristics. Ultimately, adjudicators of racial persecution cases would be remiss in seeking a scientific or expert definition of “race” as a prerequisite to determining whether racial persecution had occurred. What is needed is not an expert definition of “race,” but an understanding of whether an asylum applicant has suffered because of the persecutors’ belief that the applicant belongs to a disfavored race.[29]
Similarly, in gender discrimination cases, it is also likely to be unproductive to attempt to find a scientific definition of “sex.” Although it is easier to identify biologically based differences between males and females than it is to identify biologically based racial characteristics, the actual differences may have little or nothing to do with gender discrimination. In considering a definition of “sex,” a biologist would likely focus on the differences between male and female sexual organs. Yet it is perhaps the secondary-sex characteristics that, although only minimally relevant to a scientific definition of “sex,” may be more important for understanding gender-discrimination claims. Thus it presumably would be inappropriate for an adjudicator to ask a person claiming gender persecution whether she (or he) has had a hysterectomy (or an orchiectomy) or whether the applicant truly considers herself (or himself) to be a woman (or man).[30] While such questions arguably might be relevant to some notion of what is meant by sex or gender, they really are irrelevant if a woman cannot obtain work because potential employers refuse to hire women to work in public places. The relatively important issue in race and gender persecution, therefore, is not an “objective” or scholarly definition of the terms from the perspective of experts, but the understanding of race and sex from the perspective of the persons who are causing the persecution.
So it is the case with religion as well. We do not necessarily come closer to understanding “religious persecution” by considering whether religion requires either a belief in a divinity, a feeling of the transcendent or “wholly Other,” a belief in the supernatural, an “ultimate concern,” or community rituals—all of which are the types of issue typicaPatristic father, Saint John Chrysostom, described Judaism as follows:
I should say that the synagogue isn’t only a brothel and a theatre, but also a cave of robbers and a resting-place for wild beasts. . . . When God abandons (a people), what hope of salvation is left? When God abandons (a place), that place becomes the dwelling of demons.[31]
China offers a more contemporary example. In banning the Falun Gong movement, the Chinese government has stated that:
Li Hongzhi fabricated the so-called Falun Gong by copying some qi gong practices and adding a lot of superstitious beliefs and ravings. Li propagated the explosion of the earth and the doomsday fallacy to fool the public. These malicious concepts have already resulted in physical and mental injuries and even death of people, undermining social stability. Falun Gong bears strong resemblance to heterodox groups like Branch Davidian in the United States and Japanese Aum Doomsday Cult.
. . . .
Falun Gong organization, advocating malicious fallacies, has put people’s life at risk and wreaked havoc on the society.[32]
In such cases, whether it be St. John Chrysostom or the Chinese government, the tenor of the allegations exceeds the weight of the evidence offered, as if the rhetoric itself may be substituted for proof. As conceived by one of the most important psychologists of prejudice, such attitudes are “ordinarily a matter of gross and unwarranted overgeneralizations [that reflect] contempt, rejection, or condescension . . . .”[33] To people subjected to abuse flowing from such attitudes, it should not matter whether they ever attend synagogue or whether they consider Falun Gong to be a “spiritual movement” rather than a “religion.” In short, the relevant issues for adjudicators may not be the religious beliefs or religious activities from the perspective of religious communities or academics studying religion, but the attitudes of those who are causing the religious persecution.