When Rights Go Wrong: The Fate of Religious Freedom and Constitutionalism in the 21st Century

Until recently, religious freedom sat comfortably alongside other rights. As more countries embraced religious freedom in Europe and the Western model of constitutionalism was spreading throughout the globe, most of the debate focused on the resilience of established churches vis-à-vis the growing religious pluralism within post-modern societies and the rise of agnosticism. Neutrality and pluralism were supposedly the optimal solution to promote inclusion and pluralism in a context that led to the empowerment of international and supra-national judicial fora. Lately, constitutionalism has increasingly overlooked religion and religious freedom both theoretically and judicially, as the recent case law of the Court of Justice of the European Union shows. Within this context, nationality and statehood are paradoxically being reconsidered as potential assets for the protection of religious minorities, and not just for majorities. The chapter concludes that the tensions that engulf contemporary constitutionalism derive to a substantial extent from the fundamental misunderstanding of the relationship between constitutionalism and religion and from the failure of institutions beyond the state to protect local religious majorities as well as minorities.