Hanna Lerner

Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey

The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state’s religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.

Constitution Writing, Religion and Democracy

This is the introduction chapter of Constitution Writing, Religion and Democracy (Cambridge University Press, forthcoming 2017). The edited volume explores the particular challenge of crafting a democratic constitution under conditions of deep disagreement over a state’s religious or secular identity. As tensions over religion–state relations are gaining increasing salience in constitution writing and re-writing around the world, the book provides a comparative outlook on questions such as what role do and should constitutions play in mitigating intense disagreements over the religious character of a state? And what kind of constitutional solutions might reconcile democracy with the type of religious demands raised in contemporary democratizing or democratic states? The book addresses these questions by analysing a broad range of relevant case studies of past and current constitutional debates in Europe, Asia, Africa and the Middle East and offers valuable lessons for societies soon to embark on constitution-drafting or amendment processes where religion is an issue of contention.

A Private Matter? Religious Education and Democracy in Indonesia and Israel.

The article examines state-supported religious education and its consequences for civic attitudes in Indonesia and Israel, two democracies that grant religion a prominent place in the public sphere, particularly in education. The comparison reveals that while in Indonesia the state was able to gradually introduce a secular curriculum in religious schools and establish an accreditation system by which it could exert influence on the way religion is taught, in Israel, by contrast, state-funded religious schools over time became increasingly opposed to a mandatory ‘core curriculum’ of general studies. The comparison further suggests that in Indonesia the inclusion of a secular curriculum in religious schools in the 1970s should be seen as one of the factors promoting the production and dissemination of ‘rationalist approaches to religion’ and brought religious actors on board of democratisation, while in Israel the exclusion of a secular curriculum from religious schooling has undermined civic commitments among ultra-Orthodox Jewish citizens and as such weakened Israeli democracy. The article is based on public opinion data, data from the Ministries of Religion and Education, and court decisions in both countries.

Constitutionalism in Rough Seas: Balancing Religious Accommodation and Human Rights in, Through, and Despite, the Law

Introduction to a special issue of American Behavioral Scientist. The five articles included in the special issue highlight the various ways through which cultural, social, and political contexts affect the balance struck between rights protection and religious accommodation. The contributors 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. Taken as a whole, the articles discuss the intended as well as the unintended consequences of the legal treatment, or even constitutionalization, of religion.