1 A world of walls

Michael Walzer famously suggested that we should think of liberalism ‘as a certain way of drawing the map of the social and political world.’¹xMichael Walzer, ‘Liberalism and the Art of Separation,’ Political Theory 12(3) (1984): 315. Had society once been organized as an ‘organic and integrated whole’ in which aspects of religious and political life interpenetrated each other and constituted a ‘single reality,’ liberal theorists ‘preached and practiced an art of separation’:²xWalzer, ‘Liberalism,’ 315.

‘They drew lines, marked off different realms, and created the socio-political map with which we are still familiar. The most famous line is the “wall” between church and state, but there are many others. Liberalism is a world of walls, and each one creates a new liberty.’³xWalzer, ‘Liberalism,’ 315.

My argument suggests that the justification of the liberal public-private divide rests on two distinct claims that are often lumped together: first, that the distinction between a ‘public sphere’ and a ‘private sphere’ is a meaningful way to cognize and structure modern pluralistic societies; and secondly, that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private.’ Both claims are of course interrelated: to posit something in the private sphere excludes it from the public sphere and such exclusion will appear arbitrary if it cannot be defended on the basis of a convincing delimitation of ‘public’ and ‘private.’ In this vein, critics of the liberal public-private divide have contested the distinction between the public sphere and the private sphere because it rests on a partisan understanding of public and private.⁷xEver since Habermas has drawn attention to the central importance of the public sphere for modern liberal democracy, critics have complained that rather than enabling rational public debate among citizens as equals, it creates an exclusionary space that perpetuates inherited power relations, see Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge, MA: MIT Press, 1989) and the contributions collected in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge, MA: MIT Press, 1992). In his later work, Habermas has attempted to tackle the problem of the non-neutrality of liberal public sphere by submitting the very distinction between ‘public’ and ‘private’ to democratic deliberation under the moral point of view, which enjoins a mutual ‘translation’ requirement on secular and religious citizens, see Jürgen Habermas, ‘Religion in the Public Sphere,’ European Journal of Philosophy 14 (2006): 1-25; Jürgen Habermas, ‘Religion in the Public Sphere: Cognitive Presuppositions for the “Public Use of Reason” by Religious and Secular Citizens,’ in his Between Naturalism and Religion (Cambridge: Polity Press: 2008), 114-48. Europe’s (legal) treatment of its Muslim populations is a case in point. Not only does it cast doubts on the veracity of liberal attempts to carve out a protected private sphere of religious activity (instead of simply ‘walling off’ religious minorities).⁸xSee Amnesty International, Choice and Prejudice: Discrimination against Muslims in Europe (London: 2012). It also illustrates how the proper role of religion in the secular public sphere is defined with reference to national-majoritarian traditions imbued with Christian values,⁹xAs Mancini and Rosenfeld conclude their comparative survey, religious symbols-related conflicts in Europe ‘are often characterised in terms of a sharp antagonism between Islam and the Christian “West.”’ Whereas ‘majority symbols are legitimized as representing cultural values that are universally shared by the citizenry,’ the display of the Islamic headscarf is banned ‘either as incompatible with certain core principles of a democratic system (frequently gender equality) or with democracy tout court,’ see Susanna Mancini and Michael Rosenfeld, ‘Unveiling the Limits of Tolerance,’ in Law, State and Religion in the New Europe, ed. Lorenzo Zucca and Camil Ungureanu (Cambridge: CUP, 2012), 160, 182. something perhaps most visible in the diverging treatment by the European Court of Human Rights (ECtHR) of the Muslim headscarf and the Christian crucifix. While the headscarf is portrayed as a ‘powerful external symbol’ that is ‘difficult to reconcile with the message of tolerance, respect for others and, above all, equality and non-discrimination,’¹⁰xECtHR, Dahlab v. Switzerland (Admissibility Decision of 15 February 2001). the mandatory display of crucifixes in state schools does not suggest ‘that the authorities were intolerant of pupils who believed in other religions.’¹¹xECtHR, Lautsi and Others v. Italy (Grand Chamber Judgment of 18 March 2011), paras 72-74.

For all its national-majoritarian bias, I caution in section three against dismantling the liberal public-private divide because such strategy risks reinstating the liberal distinction between the ‘secular public’ and the ‘religious private’ as a totalistic distinction between ‘national members’ and ‘Muslim non-members’ of the polity as a whole. To elaborate this concern, I draw a trajectory from early-modern religious to contemporary nationalistic challenges to state-based liberalism (associated with, respectively, John Locke’s treatment of the atheist and John Finnis’ treatment of the Muslim) that collapse political community into predestined notions of religious faith and national fate. Against this background, I advance a less ambitious defence of the liberal public-private divide that vindicates the distinction between the public sphere and the private sphere not on grounds of a neutral distinction between the ‘public’ and the ‘private’ but instead as a discursive framework for conducting liberal politics. I submit that the proper response to concerns that the ‘liberal public’ is coterminous with the proverbial white heterosexual Christian male is not to abandon the distinction between the public sphere and the private sphere but to contest majoritarian conceptions of the public that underpin it. On this view that I shall flesh out in the final section, the distinction between the public sphere and the private sphere frames the negotiation of the ‘public’ and the ‘private’ between national majorities and religious minorities as members of the same political community.

2 Laïcité

The French tradition of laïcité is often considered the most principled expression of the liberal art of separation of the secular-as-public from the religious-as-private.¹²xParts of this section draw on Daniel Augenstein, ‘Normative Fault-Lines of Trans-National Human Rights Jurisprudence: National Pride and Religious Prejudice in the European Legal Space,’ Global Constitutionalism 2 (2013): 469-97. There, I compare the French tradition of laïque republicanism with the German and the British approach to religious diversity and engage in a more systematic analysis of European case-law on religious symbols in the public sphere than I can provide for in the framework of my present philosophical argument. The French nation state assimilates the citoyen to its republican identity, while leaving her free to pursue her religious beliefs as a private individual. This separation of citizens’ public and private ‘selves’ is legally entrenched through laïque state neutrality that purports to react with institutional blindness to the fact of religious and cultural diversity. As Poulter says:

‘The principle of secularity (laïcité) is applied with particular fervour in France because the notion of modern citizenship as a status quite separate from distinctive ethnic identities and religious differences has become firmly entrenched in the public mind ever since the days of the Revolution, as corollary of the classical republican principles of equality and fraternity.’¹³xSebastian Poulter, ‘Muslim Headscarves in School: Contrasting Legal Approaches in England and France,’ Oxford Journal of Legal Studies 17 (1997): 43, 50.

In September 2010, a further law was passed that makes it illegal to wear full-faced veils anywhere in the public sphere.¹⁹xLoi no 2010-1192, Journal Officiel de la République Française (12 October 2010). The report of the French National Assembly in preparation of the 2010 law employs language similar to that of the earlier Stasi Report, associating the veil with ‘barbarity,’ ‘violence,’ and the ‘subjugation’ of women incompatible with Europe’s ‘Spirit of Enlightenment.’²⁰xAssemblée nationale, ‘Rapport d’information n. 2262, au nom de la mission d’information sur la pratique du port du voile intégral sur le territoire national’ (26 January 2010); see further Mancini and Rosenfeld, ‘Unveiling the Limits of Tolerance,’ 174-77. In October 2010, the Conseil Constitutionnel upheld the constitutionality of the ban without, however, explicitly pronouncing on laïcité. Instead, the Court accepted Parliament’s assessment that full-faced veils place women in a situation of exclusion and inferiority incompatible with constitutional principles of liberty and equality.²¹xConseil Constitutionnel, Décision no 2010-613 DC (7 October 2010). The law was upheld except for its ban of full-faced veils in public places of worship. In July 2014, the Grand Chamber of the European Court of Human Rights joined the view of the French constitutional court.²²xECtHR, SAS v. France (Grand Chamber Judgment of 1 July 2014). The Strasbourg judges noted that the 2010 law confronts the applicant with a ‘dilemma’: ‘either she complies with the ban and thus refrains from dressing in accordance with her approach to religion; or she refuses to comply and faces criminal sanctions.’²³xECtHR, SAS v. France, para 110. Nevertheless, having emphasized (as it always does) ‘the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs,’²⁴xECtHR, SAS v. France, para 127. the Court accepted the French government’s argument that ‘the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of “living together” in French society.’²⁵xECtHR, SAS v. France, para 141.

At first sight, the French ban of religious symbols from the public sphere seems to keep with the promise of liberal neutrality. After all, limits on the exercise of religion are justified by virtue of securing a neutral-as-secular public sphere and guaranteeing the equal protection of religious freedom in the private sphere. However, such an argument overlooks that the laïque public sphere is itself the result of a historical process coined by an interrelation of Christianity and secularization. Accordingly, as Hervieu-Léger notes,

‘[i]t is impossible to appreciate the discussion of many questions in French public life which have nothing strictly to do with religion (from food quality to the ethical regulation of science, the management of hierarchical relationships in business, the future of rural society, societal expectations of the state, and demands for workers’ rights) without being aware of the extent to which French culture is impregnated with Catholic values.’²⁶xDanièle Hervieu-Léger, ‘The Role of Religion in Establishing Social Cohesion,’ in Religion in the New Europe, ed. Krzysztof Michalski (Budapest: Central European University Press, 2006), 45, 51.

Once the veil of liberal neutrality is lifted, two further justifications for decreeing public religions as private divide surface: laïcité as promotion of individual autonomy that lies at the heart of a perfectionist morality; and laïcité as a communitarian ideal that fosters a civic sense of loyalty to a particular historical community.²⁹xCecile Laborde, ‘Toleration and laïcité,’ in The Culture of Toleration in Diverse Societies, ed. Catriona McKinnon and Dario Castiglione (Manchester: Manchester University Press, 2003), 161-78. For those who defend the equation of ‘secular’ and ‘public’ on grounds of individual autonomy, the ban of religious symbols from the public sphere is justified because it liberates Muslim women from heteronomous social structures that persist in the private sphere – a position enthusiastically endorsed by former French President Sarkozy when advocating the French burqa ban: ‘The burqa is not a religious sign. It is a sign of the subjugation, of the submission, of women. (…) We cannot accept in our country women imprisoned behind bars, cut off from social life, deprived of identity.’ ³⁰xCited in Doreen Carvajal, ‘Sarkozy Backs Drive to Eliminate the Burqa,’ The New York Times, 23 June 2009. The blemish of this heroic posture is that it becomes self-defeating once placed in the context of the liberal public-private divide: the autonomy of Muslim women is promoted by excluding them from the autonomous public sphere and forcing them back into the heteronomous private sphere that deprives them of their ‘identity.’ This entails a categorical denial that Muslim women could embrace the headscarf as an autonomous choice, that is, as a self-conscious expression of their struggle to define their place as female Muslims in the secularized Christian nation state. As Balibar remarks, what gets lost in the relentless crusade of secular autonomy against sacred heteronomy is the tragic character of a situation in which Muslim women ‘become the stake of a merciless struggle for prestige between two male powers which try to control them, one on behalf of patriarchal authority wrapped up in religion, the other on behalf of national authority wrapped up in secularism.’ ³¹xEtienne Balibar, ‘Dissonances within Laïcité,’ Constellations 11 (2004): 353, 359.

This leaves the third and final tenet of laïcité, a communitarian notion of civic loyalty that strives to resurrect a ‘traditional Catholic-inspired sociability’ in new national clothes.³²xSee Laborde,‘Toleration and laïcité,’ 170. On this view, the ban of religious symbols from the secular public sphere is justified because it inculcates a robust national identity capable of transcending particular religious and cultural loyalties. Stripped of its neutralist pretensions the conversion of believers into citizens works through the imposition of national majoritarian traditions on religious minorities. During the parliamentary debates of the 1994 French law prohibiting the display of religious symbols in public schools, a member of the Assemblée Nationale used his ‘bon sens paysan’ to elaborate a contemporary interpretation of the traditional French way of transforming (Catholic) ‘peasants into Frenchmen’: ‘Islam has settled rather recently in our country. Its faith is absolutely respectable. But its adherents, as everybody else, must adapt to our values and traditions, not the other way around.’³³xJournal Officiel de la République Française 17(2) (2004), A.N. (C.R.), at 1463 ; ‘L’islam est d’implantation relativement récente chez nous. Sa croyance est parfaitement respectable. Mais, comme pour toutes les autres, c’est aux tenants de cette religion de s’adapter à nos valeurs et traditions et non l’inverse.’ Ultimately, the ‘neutrality’ and ‘autonomy’ justifications for excluding religious symbols from the public sphere collapse into this kind of national majoritarianism that betrays the liberal promise not just to assimilate but to transcend religious diversity.³⁴xFrom a socio-anthropological perspective, John Bowen shows how laïcité has been invoked strategically in the French public debate leading up to the 2004 law in order to address broader concerns surrounding headscarves in France (the growth in ‘communalism’ at the expense of social mixing; the increasing influence of international ‘Islamism’ on French society; and the denigration of women in the poor suburbs) and to justify claims for assimilation to what is portrayed as shared French republican values, see John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton: Princeton University Press, 2008). National majorities posit the distinction between the secular public sphere and the religious private sphere in order to populate the former and relegate religious minorities to the latter. It is their national and secular and Christian conception of ‘public’ that directs the neutrality principle towards the exclusion of (certain) religions from the public sphere, as it is their national and secular and Christian conception of ‘private’ that reduces the political subject behind the veil to a false dichotomy between secular autonomy and sacred heteronomy.

On a more analytical plane, the purportedly ‘neutral’ distinction between the public-as-secular and the religious-as-private displays the public-private divide as both constitutive of and constituted by liberal neutrality. It is constitutive of liberal neutrality in that the division of society into a public sphere and a private sphere demarcates the realm in which liberal neutrality is properly thought to apply. Liberal neutrality thus presupposes the existence of a public sphere as separated from other social spheres defined as private. Yet the public-private divide is also constituted by liberal neutrality in that the latter is thought to provide the justification for a non-arbitrary distinction between the public and the private. This justification of the secular public sphere on grounds of liberal neutrality is not conclusive because liberal neutrality can only apply to the public sphere after a non-neutral distinction between public and private has been put into place. Put differently, the secular public sphere can only be neutral between different religions if and to the extent that all religions have already been demarcated as private.

3 Our modern atheists

The problem of the non-neutrality of liberal neutrality is everything but new. If, John Locke had argued in his Epistola de Tolerantia of 1689,

‘such were the state of things, that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle, that had been destroyed by some extraordinary murrain; who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed, that in this case the law is not made about religion, but about political matter; nor is the sacrifice, but the slaughter of calves thereby prohibited.’³⁵xThe Epistola de Tolerantia was first published anonymously in Latin in 1689. Citations refer to the initial English translation by William Popple, as reprinted in John Locke’s Letter On Toleration in Focus, ed. Susan Mendus and John Horton (London: Routledge, 1991), 12, 37.

But the problem cuts deeper. As is well known, Locke’s defence of religious toleration was not particularly tolerant after all, despite his claim to have drawn a bright-line distinction between the ‘business of civil government’ and the ‘business of religion.’ Having established that the power of the Magistrate was confined to protecting the ‘civil order of the Commonwealth,’ Locke was quick to identify certain (religious) doctrines that nevertheless came under his jurisdiction because they posed a threat to that very order. Thus, having argued that ‘Mahometans’ should not be excluded from the civil rights of the Commonwealth because of their religion, Locke maintained that a Church

‘can have no right to be tolerated by the magistrate, which is constituted upon such a bottom, that all those who enter into it, do thereby, ipso facto, deliver themselves up to the protection and service of another prince. (…) It is ridiculous for anyone to profess himself to be a Mahometan only in religion, but in everything else a faithful subject to a Christian magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople; who himself is entirely obedient to the Ottoman emperor.’³⁷xSee Locke, John Locke’s Letter, 46-47.

Why bother? After all, few people in the liberal West today would still subscribe to the Lockean proposition that Catholics undermine the political authority of the secular state, and even fewer people are likely to believe that atheists are immoral and cannot be trusted. Locke’s argument is tailored to a Christian society in a Christian state, and is therefore unlikely to raise much excitement in a contemporary audience.⁴¹xJohn Dunn, ‘What is Living and What is Dead in the Political Theory of John Locke?,’ in Interpreting Political Responsibility (Cambridge: CUP, 1990), 2-26. Nevertheless, there may still be some dystopian lessons to be learnt from the way Locke disqualifies certain (religious) doctrines from membership in the liberal society – for liberal societies in which Locke’s rhetorical ‘Mahometans’ have come to claim a real presence. Sometime back, Brian Barry alerted us that we are likely headed for ‘a new Dark Age’ that betrays the Enlightenment hope that the cessation of persecution and censorship would lead to the triumph of liberal attitudes.⁴²xBrian Barry, ‘How Not to Defend Liberal Institutions,’ in Liberalism and the Good, ed. Robert Douglass et al. (London: Routledge, 1990), 44, 57. On the one hand, ‘there is little chance of selling neutrality to non-liberals, which means that non-liberals will continue to hold views about the proper role of state action that run counter to liberal policy prescriptions.’ On the other hand, the ‘prospects of survival’ of liberal institutions depends on ‘there being in the population a large proportion of people with a liberal outlook.’⁴³xBarry, ‘How Not to Defend Liberal Institutions,’ 56. More recently, John Finnis has found new evidence in support of the Dark Age thesis in the jurisprudence of the European Court of Human Rights.⁴⁴xJohn Finnis, ‘Endorsing Discrimination Between Faiths: A Case of Extreme Speech?,’ in Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein (Oxford: OUP, 2009), 430-44. According to Finnis, the Chamber and the Grand Chamber judgment of the Strasbourg court in Şahin show that the British House of Lords in Begum did not say what it really wanted to say.⁴⁵xSee, respectively, ECtHR, Leyla Şahin v. Turkey (Judgement of 29 June 2004); ECtHR, Leyla Şahin v. Turkey (Grand Chamber Judgement of 10 November 2005); and House of Lords, Regina (SB) v. Governors of Denbigh High School [2006] UKHL 15 (Begum).

What the majority of British judges did say in Begum was that the decision of Denbigh High School to prohibit Shabina Begum attending school dressed in a jilbab (a long loose-fit overgarment) did not interfere with her right to freedom of religion under Article 9 of the European Convention on Human Rights (ECHR) because she could choose to ‘compromise and, if necessarily sacrifice’ the expression of her beliefs, or to move to another school whose uniform policy would accommodate her religious dress requirements.⁴⁶xSee Begum, paras 50, 54. Moreover, all judges concurred that assuming there had been an interference, it would have been justified because the school’s uniform policy pursued the legitimate aim of protecting the rights and freedoms of others by promoting social cohesion and religions harmony among opposing groups. Finnis is right to complain about such ‘conceptual slackness of human rights-law-in-action.’⁴⁷xSee Finnis, ‘Endorsing Discrimination Between Faiths,’ 433. That the uniform policy may compel Begum to ‘sacrifice’ the expression of her religious beliefs is not considered sufficient to bring her case within the ambit of Article 9(1) ECHR. This, in turn, relieves the school from the onus of proving that Begum’s exclusion was ‘necessary in a democratic society’ because responding to a ‘pressing social need’ as required by Article 9(2) ECHR.⁴⁸xFor a more detailed analysis see Nicholas Gibson, ‘Faith in the Courts: Religious Dress and Human Rights,’ Cambridge Law Journal 66 (2007): 657-97.

This is what Finnis thinks the House of Lords really wanted to say:

‘Confronted by the grave warnings thus issuing from courts of great pan-European authority, citizens of countries whose Muslim population is increasingly very rapidly by immigration and a relatively high birth rate may ask themselves whether it is prudent, or just to the children and grandchildren of everyone in their country, to permit any further migratory increase in that population, or even to accept the presence of immigrant, non-citizen Muslims without deliberating seriously about a possible reversal – humane and financially compensated for and incentivized – of the inflow.’⁴⁹xSee Finnis, ‘Endorsing Discrimination Between Faiths,’ 440.

The problem with Finnis’ interpretation is that it confuses the Court deferring to the views of the Turkish authorities with the Court endorsing these views. Indeed, the ECtHR’s justification for employing a wide margin of appreciation is a far cry from Finnis’ contention that the Court could indulge his own view, namely that the ‘intimidatory pressures for conformity which are the main ground for the headscarf ban in Turkey and the jilbab ban in Denbigh High School are often (…) early precursors of jihad’:⁵⁶xSee Finnis, ‘Endorsing Discrimination Between Faiths,’ 439.

‘Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, in respect of which the approaches in Europe are diverse. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order.’⁵⁷xSee Şahin 2005, paras 108-9.

In an earlier contribution, John Finnis defended the indefinite detention of (Muslim) non-citizens awaiting deportation on grounds of a Kelsenian notion of the ‘legal system’s subsiding unity through time [that] cannot be explained without foundational reference to the group whose legal system it is.’⁵⁸xJohn Finnis, ‘Nationality, alienage and constitutional principle,’ Law Quarterly Review 123 (2007): 417, 443. The background of the debate was a House of Lords judgment holding that the indefinite detention of foreigners suspected of terrorist activities was incompatible with the European Convention on Human Rights because it arbitrarily discriminated between UK nationals and UK non-nationals.⁵⁹xHouse of Lords, A and others v. Secretary of State for the Home Department [2004] UKHL 56. For Finnis, by contrast, it is precisely the distinction between nationals and aliens that breathes life into the legal community because it endows the ‘indispensable framework for articulating, expressing, ratifying, and demanding (…) integration in and assimilation to this nation-state rather than some other’:⁶⁰xSee Finnis, ‘Nationality, alienage and constitutional principle,’ 444.

‘Here our constitutional law intervenes to remind us that while they are among us, non-members are to be treated as members so far as is compatible with maintaining the core of the distinction between members and non-members – between members by right and members by revocable permission. So our justifiable lesser willingness to accept risks from non-members warrants (…) their liability to be removed from the nation’s territory and, with a view to and pending that removal, to be kept apart from the community by humane detention or control.’⁶¹xFinnis, ‘Nationality, alienage and constitutional principle,’ 444-45.