The Status of Religious Freedom in the 'Laboratory of Secularization'

According to Brian Leiter´s widely-acclaimed book Why Tolerate Religion?, no one has been able to articulate a credible principled argument for tolerating religion qua religion and so there is no reason to single out religion for special treatment as is common in contemporary constitutional democracies. Leiter is not only one (remember Ronald Dworkin or Christopher Eisgruber and Lawrence Sager) who denies that religion is such distinctive sphere of human concern that special treatment is justified, but still his current account is one of the most elaborate. All these accounts testify that the unifying assumption about the (prominent) place of religion is displaced and hence whole the system of ideas around which contemporary constitutional democracies are organized is thrown out of balance. The paper aims to discuss Leiter´s provocative thesis and defends religious accommodation against Leiter´s reductive view on religion connected with his characterization of religion as “insulated from evidence”. Even on Leiter´s own consequentialist terms, there are still good reasons for religious accommodation. But in my paper Leiter´s theses will not be discussed only in the abstract ways as several of his critics have already done and done quite well. The aim of the paper is to contextualize the theoretical debate in the national (i. e. Czech) constitutional reality of the religious liberty and the status of religion in the democratic life in general. In the Czech Republic, one of the most atheistic state in the world, called by some political scientist the “laboratory of secularization”, religious freedom has been a bedrock value since the Velvet Revolution. The newly created Constitutional Court of the Czech Republic has been quite famous for its value-laden jurisprudence, which, among others, gives prominent place to claims of religious liberty. In comparison to much more reluctant political forces vis-à-vis to religion, the Constitutional Court of the Czech Republic has been quite generous in interpreting and applying the relevant constitutional provisions concerning the autonomy of churches and religious societies and claims of (religious) conscience. The biggest challenge of the Constitutional Court´s approach was his crucial 250-page long decision about Property Settlement with Churches and Religious Societies in which, among others, the test of neutrality of religion and world views was developed. Drawing these two debates together, the paper, based on the intersection of political theory and constitutional law, has two main objectives. By discussing (a.) religious freedom and neutrality in the “law-based” democratic Czech state it will try to respond (b.) to the more theoretical debate about the proper place of religion in the constitutional democracy. In the post-Christian nations, severing their connections with their religious past, the protection of religious minorities seems crucial if they are living in a society when the secular majority can shape secular state in such a way that is can be committed to secularism as a substantive position.