Litigating Religions

An Essay on Human Rights, Courts, and Beliefs

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Christopher McCrudden
  • Oxford, England: 
    Oxford University Press
    , March
     2018.
     208 pages.
     $65.00.
     Hardcover.
    ISBN
    9780198759041.
     For other formats: Link to Publisher's Website.

Review

The cover of Christopher McCrudden’s Litigating Religions portrays two hands outstretched to one another, not quite able to touch. The image is in fact a close-up of the hands of God and Adam as portrayed in Michelangelo’s fresco painting in the Sistine Chapel, The Creation of Adam. The creative use of Michelangelo’s famous work is apt, for one can identify a comparable underlying theme in McCrudden’s work: the seemingly interminable task of trying to reconcile the tensions that manifest themselves in contemporary encounters between law and religion.

Comprised of three major parts, Litigating Religions is a revised version of the Alberico Gentili Lectures presented by McCrudden at the University of Macerata, Italy, in 2015. Directed to a non-specialist audience, McCrudden addresses the “puzzling and troublesome relationship between courts and religions” (viii) that arises in what he broadly describes as “religious litigation” (a descriptor that includes cases involving issues such as abortion or same-sex marriage, or cases where religiously-influenced claims are framed as arising out of another right, such as privacy, due process, freedom of speech, or the right to education). 

The first part of McCrudden’s foray into the phenomenon of religious litigation is contextual in nature, and is intended to present the reader with some necessary background to the subsequent sections of the book. In this first part, McCrudden provides an overview of a variety of religious litigation cases—from episodes involving the dismissal of adulterous church employees (e.g., Obst v Germany and Schüth v Germany), to cases involving the various legal implications of same-sex relations (e.g., Lawrence v Texas and Obergefell v Hodges). The variety of religious litigation cases presented by McCrudden are also geographically (and thus jurisdictionally) diverse—Litigating Religions references cases from the United States Supreme Court, the Supreme Court of Canada, and the European Court of Human Rights, among others. In addition to outlining a number of case examples, McCrudden also provides a compelling account of ideological and institutional considerations in religious litigation, resulting in a kind of etiology for the rise of religious litigation in contemporary society. In presenting all of this, McCrudden most importantly gives the reader a helpful contextual introduction, one that facilitates the transition into his discussion of theoretical problems in religious litigation.

Part 2 of Litigating Religions involves McCrudden’s application of philosophical terms in identifying three major problems in religious litigation: the teleological problem, the epistemological problem, and the ontological problem. The teleological problem, as McCrudden describes it, concerns multiple questions about the aims of the courts in religious litigation. For example, what is the primary aim, or telos, of human rights protections that relate specifically to religion? More generally, why are religions worth protecting? While a number of possible answers are canvassed (e.g., championing pluralistic values, protecting the private sphere, and avoiding civil strife), McCrudden ultimately concedes that the teleological problem is “all very confusing,” as we are ultimately able to identify “a plethora of justifications that aim to collapse the distinction between freedom of religion and other human rights” (86).

The second problem, the epistemological problem, relates to “how those involved in legal interpretation, such as judges, can understand a religious system sufficiently to be able to adjudicate when conflicts arise that depend on an understanding of that other normative system” (87). Without doubt, this is a challenge that plagues much religious litigation, particularly those cases where the judiciary is called upon to somehow apprehend or interpret specific religious doctrine or practice. Outlining various adjudicative responses to this challenge, McCrudden notes that what is frequently encountered in religious litigation is the translation of religious discourse into non-religious discourse, or “public reason.” 

The third problem identified by McCrudden is the ontological problem, which he also refers to as the anthropological problem. Broadly speaking, McCrudden describes this as the problem of “what it means to be human,” a problem that he relates in part to the concept of “human dignity.” Given such concerns, this leads McCrudden to wonder over how or whether religion “is central to our view of what it means to be human” (102).

Having outlined these three problems, the final part of the book is comprised of McCrudden’s attempt to provide “mechanisms by which the tensions ... identified may be addressed in a way that may prove more productive than the approaches adopted up to now have proved to be” (126). Among other things, these proposed mechanisms involve an emphasis on the concept of “human dignity” as being central to the pursuit of an effective human rights model, and the advocacy of “a genuine dialogue” (140) between the religious and the non-religious-oriented discourse on human rights.

On a theoretical level, McCrudden’s work is highly compelling. In particular, his account of the teleological and epistemological problems in religious litigation are very effectively presented, and there is no doubt that these two problems are readily evidenced in a variety of religious litigation cases. It is in this area of the book that McCrudden’s theoretic prowess truly shines. In contrast, the final, prescriptive part of Litigating Religions is less strong. While the mechanisms McCrudden suggests are generally laudable, they are not all necessarily compelling or entirely novel. For example, in the course of advocating for an analytic approach that focuses on pluralism, secularity, and accommodation, McCrudden references a 2006 Supreme Court of Canada case, Multani v Commission Scolaire Marguerite-Bourgeoys, acknowledging that the approach he is advocating for is quite consistent with the court’s analysis in that case. Further, while the call for a more effective dialogue between the religious and non-religious understanding of human rights is a praiseworthy goal, it is also fraught with difficulties, owing in no small part to the diverse and strongly-rooted normative commitments of the sides involved (a point that McCrudden recognizes, to be sure). Such quibbles aside, Litigating Religions is nonetheless a compelling read overall, and is most assuredly a valuable theoretical contribution to the discourse on the perennially challenging (and at times vexing) relationship between law and religion.

About the Reviewer(s): 

Patrick Hart recently received his doctorate in Religious Studies from the University of Alberta where he is also a Lecturer.

Date of Review: 
October 5, 2018
About the Author(s)/Editor(s)/Translator(s): 

Christopher McCrudden is Professor of Human Rights and Equality Law at Queen's University, Belfast; William W Cook Global Professor of Law at the University of Michigan Law School; and a practising barrister at Blackstone Chambers in London. A Fellow of the British Academy, he is the author of numerous titles, including: Buying Social Justice (OUP, 2007); Courts and Consociations: Human Rights versus Power-Sharing (OUP, 2013); and editor of Understanding Human Dignity (OUP, 2013).

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