Persecution & Toleration

I’m glad to announce that my new book, Persecution & Toleration (with my colleague Noel Johnson) is now available in the UK.  I’m hoping to receive copies next week. The book is available at CUP, although Amazon still has a US release date of April (you can preorder it).

The blurb is below:

Religious freedom has become an emblematic value in the West. Embedded in constitutions and championed by politicians and thinkers across the political spectrum, it is to many an absolute value, something beyond question. Yet how it emerged, and why, remains widely misunderstood. Tracing the history of religious persecution from the Fall of Rome to the present-day, Noel D. Johnson and Mark Koyama provide a novel explanation of the birth of religious liberty. This book treats the subject in an integrative way by combining economic reasoning with historical evidence from medieval and early modern Europe. The authors elucidate the economic and political incentives that shaped the actions of political leaders during periods of state building and economic growth.

‘A profound new argument about the relationship between political power and religion in the making of the modern world. If you want to know where the liberty you currently enjoy, for now, came from, this is the book to read.’ James Robinson, Richard L. Pearson Professor of Global Conflict, University of Chicago

‘Johnson and Koyama investigate the fascinating intersection of the state and religion in late medieval and early modern Europe. Rather than enduring patterns of religious toleration or persecution, of liberty or tyranny, they tell a rich history of change and variation in rules, institutions, and societies. This is an important and persuasive book.’ John Joseph Wallis, Mancur Olson Professor of Economics, University of Maryland, College Park

‘Lucidly written, incisively argued, this book shows how religious toleration emerged not only from ideas, but also from institutions which motivated people – especially the powerful – to accept and act on those ideas. A brilliant account of early modern Europe’s transition from identity-based privileges to open markets and impartial governance.’ Sheilagh Ogilvie, University of Cambridge

‘This analysis of the historical process underlying the modern state formation is a fantastic scholarly accomplishment. The implications for the present, in terms of the risks associated to the loss of the core liberal values of modern western states, will not be lost to the careful reader.’ Alberto Bisin, New York University


Bad Religion

The Heidelberg Catechism is one of my all-time favorite Christian documents. Written in 1563, mostly by Zacharias Ursinus, the Heidelberg (as it is sometimes called) is composed by 129 questions and answers (the classical format of a catechism), supposed to be studied in 52 Sundays (that is, one year). I believe it is very telling that, being a catechism, the Heidelberg was written thinking mostly about younger people, even children. Ursinus himself was only about 29 years old when he wrote it. Maybe it is a sign of the times we live in that the Heidelberg sounds extremely deep for most readers today.

Throughout its questions and answers, the Heidelberg covers mostly three Christian documents: The Ten Commandments, the Lord’s Prayer (“Our Father who art in Heaven…”) and the Apostle’s Creed. The catechism is also divided into three main parts: Our sin and misery (questions 3-11), our redemption and freedom (questions 12-85), our gratitude and obedience (86-129). Probably an easier way to remember this is to say that the Heidelberg is divided into Guilt, Grace, and Gratitude. That is also, according to many interpreters, the basic division of the Apostle Paul’s Letter to the Romans, historically one of the most important books in the Bible.

I mention all these characteristics about the Heidelberg Catechism because I think they are worth commenting on. As I learned from a friend, that is the Gospel: Guilt, Grace, and Gratitude. As C.S. Lewis observed in Mere Christianity, Christians are divided on how exactly this works, but all agree that our relationship with God is strained. That is the guilt. However, in Jesus Christ, we can restart a peaceful relationship with God. That is the grace. This should be followed by a life of gratitude. That is the way the Gospel is good news. If you don’t emphasize these three points you are not really presenting the Biblical gospel. To talk about grace without talking about guilt is nonsense. To talk about guilt and not grace is not good news at all. To talk about guilt and grace but not of gratitude is antinomianism. To talk about gratitude (or obedience) without talking about guilt and especially grace is legalism. But also, notice how unbalanced the three main parts are: Ursinus dedicated way more space for grace and gratitude that he did for guilt.

That’s not accidental. Also, it is very interesting that he talks about the Ten Commandments when he is dealing with gratitude. It didn’t have to be this way. Ursinus could have included the Law when talking about guilt. He could use the law to show how miserable we are for not fulfilling it. But instead, he wanted to show that obeying God is a sign of gratitude. You are free already. Obeying will not make you any more saved. But it is certainly the behavior of a truly restored person.

If you read so far, I should first thank you for your attention, but also say that I am completely unapologetic for speaking so openly on Christian themes. At some point in history, Christians decided to adapt to the modern culture. That was the birth of Christian Liberalism. Modern man, some of them assumed, could no longer believe in stories of gods and miracles. Modern science was able to explain things that societies in the past thought to be supernatural occurrences. The Bible was at worst pure nonsense or at beast a praiseful reflection of the piety of people in the past, but certainly not a supernatural revelation from God. But if you take away the supernatural elements of the Bible, what do you have left? Good morals, some thought. I believe they were wrong.

The social gospel is one consequence of Christian liberalism. The central miracle in the Bible is that Jesus, a mortal man, was dead for three days and resurrected. That is indeed a miracle. Make no mistake: people in the first century knew as well as we do that people don’t come back to life after three days. Maybe they knew it better than we do, for in the 21st century, for many of us, death is not a part of everyday life. For them, it certainly was. Christians have believed through almost two thousand years that Jesus’ death and resurrection have something to do with us being reconciled to God. But if Jesus didn’t resurrect, and no one really heard from God that he is angry, what do we have left? The answer, according to Christian liberals, is social justice. Reform society. I believe that for this, they own society at large an apology, and I will explain why.

I heard from too many people that the reason they don’t go to church is that Christians are hypocrites. “Do as I say, but not as I do”. Maybe they are right. The balance between guilt, grace, and gratitude if fundamental for Christianism to work. Salvation (reestablishing a rightful relationship with God) is by grace, not by works. Say that salvation is by works and you set the board in a way that you are sure to lose. As I already mentioned, I think it is just wonderful that the Heidelberg Catechism talks about the Law of God (The Ten Commandments) when it is discussing gratitude, not guilt, and I believe this is a great lesson for us today.

I say all this today because I believe that political correctness is (at least to a great degree) the bastard son (or daughter) of the social gospel. See the recent Gillette commercial that caused so much controversy, for example. Are they really saying anything wrong? Don’t men behave sometimes in ways that are less than commendable? I believe we do. Especially coming from a Latino culture as I do, I am more than willing to say that men all too often are disrespectful towards women and also towards other men. However, how the people at Gillette know this? If there is no God, or if he didn’t speak, how can you tell what is ethically commendable behavior and what is not?

I am no specialist, but as far as I know, more than enough atheist philosophers are willing to admit that in a sole materialist worldview there are no universal grounds for morality. As the poet said, “if there is no God, then all things are permissible”. It is always important in a conversation like this to explain that I am not saying that atheists cannot be ethical people. That is absolutely not what I am saying. Some of the best people I ever met were atheists. Some of the worst were Christians who were at church every single Sunday. With that explained, what I am saying is that there is no universal guide for human behavior if there is no God and everything just happened by chance. There are particular guides, but not a universal one, and to adhere to them is really a matter of choice.

The way that I see it, people at Gillette want men to feel bad and to change their behavior. They want men to feel guilty and to have gratitude. But where is the grace? I believe that is why this commercial irritated so many people. It makes people at Gillette look self-righteous or legalistic. Or both! But it definitely doesn’t help men to change their ways, supposing that there is something to change. I believe there is. There is a lot to change! But political correctness is not the way to do it.

Spaghetti Monsters and Free Exercise

Should Flying Spaghetti Monster worshipers be allowed to wear colanders on their heads in drivers’ license photos? Maybe so. Today, four conservative justices hinted that someone might want to bring them a good Free Exercise case soon so they can unseat a long-standing and long-criticized case called Employment Division v. Smith. That case, penned by Justice Scalia, had in turn uprooted several decades-worth of precedent that had built up a robust bulwark of religious rights under the First Amendment’s Free Exercise Clause.

It’s a funny twist. Liberal justices like Justice William Brennan had built up strong protections under the Free Exercise Clause, such as allowing Amish to pull their children from high school early because of their faith, or allowing Saturday Sabbath worshipers to enjoy certain exceptions to work requirements for unemployment benefits. Then the penultimate conservative justice, Antonin Scalia, dealt a severe blow to those precedents in Smith. Scalia said that religious practices did not merit exemption from generally applicable laws.

Now, the conservative justices want to rethink Smith, while the liberal justices may hang back. Perhaps the shift in the culture wars has caused this parallel shift in jurisprudential alliances. In any case, I think we should welcome reconsideration of Smith.

Scalia’s opinion in Smith raised some legitimate concerns. He argued that if we allowed judges to have a heavy hand in deciding which religious practices deserved special exemptions from the law and which did not, then judges would inevitably engage in subjective judgment calls and descend into the very parochialism that the First Amendment is designed to thwart. He also worried that allowing exemptions from generally applicable law would court anarchy—we would have a legal code peppered with holes for a thousand individualized religious beliefs and practices. Both are legitimate concerns.

Smith did prompt a strong legislative response. Congress and quite a few states thereafter passed Religious Freedom Restoration Acts (RFRAs) that basically revived the pre-Smith law. But legislatures can and do exempt some laws from RFRAs, and many states do not have them.

My primary issue with Justice Scalia’s Smith opinion is that his worry about subjective judgment calls seems to prove too much. Judges are called upon to make these kinds of sensitive and controversial decisions all the time. We rely on things like tenure and salary protection to shelter their independence and impartiality as much as we can, but these kinds of difficult decisions arise in innumerable other contexts. I would prefer a robust and imperfectly enforced Free Exercise Clause to one that does almost nothing at all.

Likewise, the concern about courting anarchy may be overblown. Laws and religious practices usually do not clash in a fundamental way, and under the pre-Smith “compelling interest” test, legislators can still forbid child sacrifice while allowing Muslim police officers to keep their beards. Plus, freedom of speech and many other rights already require exceptions to the scope of otherwise legitimate laws—they just can’t be applied in certain circumstances. The Free Exercise Clause is not unique in that way.

If the Court does confront Smith, it may also have to deal with the Flying Spaghetti Monster problem. That is—the Court may have to address a question which it has mostly avoided: what is a “religion” under the First Amendment. Does the Church of the Flying Spaghetti Monster count? Should Pastafarians be allowed to wear colanders on their heads in drivers’ license photos while everyone else has to go bareheaded? What about the Church of Diego Maradona, a real church dedicated to the Argentine soccer legend? Clearly, asking a court to define a “religion” raises the same concerns of parochial judgment calls that drove the decision in Smith. But maybe the answer is to let them all in, with perhaps just a low-threshold sincerity requirement. Beyond the occasional colander-clad guy in the DMV line, we haven’t seen a huge number of people adopting faux beliefs just so they can get a religious exemption for smoking dope. But then, there is an International Church of Cannabis that would surely see a surge in conversions if Smith is overturned.

The Left’s Gospel has no Grace

The Protestant Reformation was started in 1517 by Martin Luther, an Augustinian monk who was revolted about the selling of indulgences by the Roman Catholic Church. The indulgences were on that occasion simply documents sold by Rome that would guarantee access to heaven for those who bought them. Luther understood that the Bible taught something different: salvation is through Christ alone, and can’t be bought or sold. Jesus’ death on the cross was substitutionary: he died in the place of sinners. Those who put their faith (their trust) in this sacrifice are saved from hell. In a nutshell, this is the gospel (the good news) as Luther understood it and as Protestant churches have been understanding it in the past 500 years.

However, for Luther, the Protestant Reformation didn’t begin in 1517. What happened to him in that year was just the culmination of a process that started many years before. Luther was obsessed with the idea of sin. More so than the average person, he understood that as a sinner he could never be considered just by God, no matter how much money he spent on indulgences. The distance between God’s justice and human sin is simply too great. Understandably, instead of loving God, Luther hated him. that’s when he discovered salvation by faith alone. Yes, it is true that our justice can never satisfy God. But it doesn’t have to. We can rely on Jesus’ justice. And that is what for Luther begin the Reformation.

Luther’s idea of salvation by faith alone can easily be mistaken by antinomianism. Antinomianism is the idea that the law has no importance at all, especially for salvation. That is certainly not the case for Luther and other reformers. For them, we are saved by faith alone, but not by a faith that is alone. True faith will always be followed by good works. So, although the good works in themselves do not save, they are part of faith. Nevertheless, Luther’s idea of salvation by faith alone is pretty radical. Can we be sure that faith alone will not fall into antinomianism? Can we be fully confident that this idea will not lead to licentiousness? This debate has been going on for the last 500 years.

In any case, I find it fascinating how the Reformation begin with one unsuspicious monk in an unimportant region of Germany over 500 years ago. The Reformation is part of the modern (re)discovery of the self. Before Luther, other people were trying to reform the Roman Church already. Notoriously, Erasmus was criticizing the excessive pomp of the church and the shortcomings of the official Latin translation of the Bible. However, as important as they could be, these were external things. Luther’s reformation begins as a reform of the self. A someone said, nothing is deeper than a man full of regret. If Luther was simply pointing to the mistakes in the Roman Church, and not to his own sinful nature, his reform wouldn’t produce the change it did.

The problem with the Left, since Rousseau, is that the problems are outside the self. For Rousseau, we are born in chains. Society turns an otherwise noble savage into an egoistic person. For Marx, man is nothing but a soulless homo economicus, trapped into the materialistic engines of history. The New Left believes we are poor victims of advertisement that makes us buy stuff we don’t really need. And that inevitably turns leftists into hypocrites. One can never perform well enough to these standards and is left pointing to the speckle in somebody else’s eye.

Ever since I can remember, one of the most common reasons people give to stay away from churches is the Christians. Churches are full of hypocrites, they say. I can’t really access the veracity of this statement, but one thing I can say is this: salvation by works is a game set to be lost. If your religion says that you obtain salvation by performance, that will inevitably turn you into a hypocrite. Or a cynic. Or both. And will also make you hate anyone outside your religious group.

The problem with the left is that it preaches salvation by works and sets the problems outside the self. The gospel of the left lacks a sense of personal sin and of grace.

Why Christmas materialism is awesome

It has always struck me as odd that capitalism’s usual defenders abandon it when commercialism seems to be on its best behavior. Every year, we religionists love to rail against Christmas materialism. What a terrible curse–people in the marketplace thinking of others’ interests and needs for once.  All the efficiency of the market PLUS good will toward men–why are we complaining, again?

Yet we do. Without fail, twitter feeds and chapel lecterns ring with invectives against Christmas commercialism. The warning voice, though, never seems to strike with precision. The concern seems to be that a focus on stuff gives rise to an idolatrous dethroning of deity.  This religious criticism appears to mimic the secular and progressive criticism that commerce somehow defiles us and strips us of virtues like compassion or solidarity.

I don’t buy either of these criticisms, largely for the same reasons: commerce brings people together, builds trust, and fosters goodwill. These benefits are in addition to the efficiencies that market advocates typically emphasize. And these three aspects of commercial exchange are in special abundance during Christmas.

Perhaps the materialism complaint stumbles at the outset by focusing on the largely mythical human calculator that predominates in economic theory–the man focused only on maximization of personal utility. That portraiture does not explain the fact that so much commerce occurs on behalf of someone else–a reality underscored and amplified during holiday shopping. Thus, Christmas supports Amartya Sen’s critique of the rational-man theory: “The purely economic man is indeed close to being a social moron.” He’s the one who gives you lotion samples and leftover hotel shampoo in your stocking. But most of us don’t do that. Instead, the market provides a forum for us to express and cultivate virtue. As Deirdre McCloskey says, “In other words, it’s not the case that market capitalism requires or generates loveless people. More like the contrary. Markets and even the much-maligned corporation encourage friendships wider and deeper than the atomism of a full-blown socialist regime.” I think a simple test proves this point. If you walk about a shopping mall during the Christmas holiday (setting aside for a moment your inner misanthrope), how are people behaving? By and large, there is an overpowering sense of goodwill among people engaged in (shudder) holiday materialism. I’d say this is mostly true at any time of year, but we may as well notice this phenomenon when it stands at its apex.

Beyond just the goodwill generated by the act of commerce, the materialism critique seems to ignore the very purpose of the materialistic behavior being condemned. Shouldn’t we celebrate this key example of how commercialism can enhance friendship through gift-giving? If you’re a religious capitalist, what is there not to like here?

A friend pointed out recently that Christmas giving seems fruitless, since the value-for-value gift exchanges offset each other. He concluded we may as well just keep our money. From an efficiency standpoint, it does seem strange to engage in a transaction cost without any expectation that you’ll achieve a pareto-efficient state of affairs. Samuelsonian economics alone can’t really explain why people engage in this ritual. That’s probably because the ritual is not purely economic. It’s about connection, relationship, and opportunity to think beyond ourselves. In other words, at bottom, it really is not about materialism in the shallow, desiccated sense that these Christmas puritans rail against. Commerce can be about compassion and camaraderie–not just self-interested calculation (though there’s nothing wrong with that either).

I don’t think the Babe of Bethlehem would disagree. After all, Jesus, while no aristocrat, was not a severe ascetic by any means–somewhat of a contrast to his cousin, John the Baptist. Perhaps the most poignant example of his view toward extravagant gift-giving occurs when a woman anoints him with an extremely valuable ointment. His disciples complained of the waste, griping that the ointment should’ve been sold and the proceeds given to the poor. Jesus defended her: “Let her alone; why trouble ye her? She hath wrought a good work on me.” In other words, a materialistic act can still be a virtuous one. In fact, I’d go as far as to say that the vast majority of them are. We need, after all, an earthly vehicle by which to exercise heavenly virtue. The market is well-suited for that role. God can be in a market–he’s that good.

Of course, a post about Christmas and materialism must make obligatory mention of Ebenezer Scrooge. Dickens was no fan of capitalism, but his reformed villain ironically proves a point about Christmas materialism: it’s the lack of virtue in the individual operating in the market, not the market itself, that desiccates the soul. So perhaps I can end with a simple “Scrooge” test: is Scrooge the guy standing back and pointing the finger, or is Scrooge the person that the finger aims at–the mom who braves the crowded mall to plop her kids on Santa’s lap and wraps gifts until 3:00 AM in the morning?

Merry Liberty Christmas!

Christmas, as I hope everybody (at least in the West) still knows is Jesus’ birthday. I don’t want to spend too much time here talking about how it is very unlikely that Jesus was born on December 25, and how this date was probably just chosen at some point in the late Ancient times/Early Medieval times to Christianize European pagans. The Bible never specifies when Jesus was born (although it does offer some hints), and so, some very devout Christians over history (Puritans, for example) thought that we should not even celebrate Christmas. The gospel according to John doesn’t even talk about Jesus’ birth. In it, Jesus simply appears as a grown man. The same thing happens in Mark’s gospel. Matthew and Luke give accounts of Jesus’ birth, with Luke being more detailed. So, ½ of our gospels don’t seem to be very interested in Jesus’ life before he was about 30 years old. Someone has said (and I think somewhat appropriately) that the gospels are accounts of Jesus passion (his death and resurrection) with long introductions.

But anyways! I don’t think that celebrating Christmas is bad, not at all! I believe it is a good occasion to remember Jesus, the founder of Western civilization. May we like it or not, the West is profoundly linked to Christianity. Christianism begin as little more than a small and persecuted Jewish sect, but eventually became the main religion in Europe (and northern Africa, and the Near East), and from there to the World. Some might say (and I think that sadly they might be right) that today Europe lives in a post-Christian era, but we should not forget that someday in the past to be European and to be Christian were basically synonyms. And I also believe that we, professing Christians or not, should be thankful to Christianity in a number of ways. I am very convinced that it was thanks to Christianity, especially after the Reformation, that we have many of the things that we, as liberty-lovers, are thankful for, such as science, capitalism and lots of individual liberty.

Of course, from the human perspective, the link between Christianism and West is merely accidental. I myself, as a Brazilian, am not sure if I classify as a Westerner. Maybe I am from the far West? It is very clear that for many decades now Christianism is moving to the global south: Latin America, Africa, Asia, and I hope not to be forgetting anyone. And I think that is just beautiful! I don’t believe that there is one essential Christian culture. Instead, I believe that culture is an essential human phenomenon and that Christianism can give a new birth to cultures, just as it does to individuals, bringing forward what they have best and leaving behind the bad stuff.

Sadly, the very places where Christianism is growing the most today are usually also the places where Christians suffer more persecution. Although we tend to connect the first few centuries of Christianism with martyrdom, with people being crucified, thrown to the beasts and the like, the fact is that the 20th century had more martyrs than any other century before. It is also sad for me that most people, including Christians and liberty-lovers, tend to ignore this. In the last few weeks, I heard of at least two churches being closed in China, with all members being taken to jail. I wish that people who care about freedom paid more attention to this. I also wish that people who care about Human Rights did the same. Some people are worried about gay couples not getting wedding cakes from Christian bakers, but they don’t seem to have the same concern about Chinese Christians being thrown in jail just because they are Christians.

Speaking of which, I want to be very honest and say that Marxism (or post-Marxism, or cultural Marxism) can easily become a religion. Marx is a prophet, The Capital is a holy book, the proletariat (or any oppressed minority, for the modern left) is both Messiah and holy people, a future communist utopia is Heaven. I believe that it was a Catholic apologist who said that “the problem with not believing in God is that we start to believe in any dumb thing – including in ourselves”. The problem with Marxism as a religion is the same problem I see with every other religion apart from Biblical Christianity: it is performance driven. It is about what you do. And as so, it can create a slippery slope in your heart. You become self-righteous and judgmental (in a bad way) of people outside your faith-group or even people inside your faith-group who you consider not holy enough. Of course, Christians are not exempt from this either, but I believe we have the right medicine for this.

As much as I believe that the New Left is one of the greatest problems in the West today and that several forms of totalitarianism are one of the main problems elsewhere, I don’t believe that libertarianism or conservatism are in themselves the solution. I became a libertarian (or a conservative-libertarian) because I am first a Christian. My first question was “what the Bible has to say about politics and economics”? I believe that somewhere in the libertarian camp we have the best answer for that. I believe the Bible teaches that very small and simple governments and market freedom are the answer. However, I would say that this is just partly the answer.

The way that I see it, the conflict between the left and the right is very much a conflict between Rousseau and Locke, or a conflict between two kinds of freedom. For Rousseau, you are only free when you are your true inner self. If necessary, the community can make an intervention to force you to become who you truly are. For Locke, you are free when you can make your own choices, regardless if they look good for others. As libertarians like to say, a crime without a victim is not a crime.

I believe this is also a basic conflict between modern western culture and more tradition culture – the conflict between collectivism and individualism. My answer as a Christian (and a libertarian) is that we should not force people to be Christians. That would, at best, produce external conformity – which is actually really bad. My understanding is that, as long as they are not predictably and willfully hurting others, people should be let free to do whatever they want. And I do mean whatever. On the other hand, I don’t think that this is good – or as good as it can be. Ironically, I believe that Rousseau is onto something important: you are only truly free when you are who you are really supposed to be.

One great irony or paradox in Christianism is that you are only truly free when you are a slave to God. Understanding 1st-century slavery helps to get the analogy better. God bought us for a price. We belong to him. However, God is not satisfied with having us as slaves. Instead, he adopts us as sons. That is the (I believe) famous parable of the prodigal son: a son abandons his father and loses all his money. He comes back hoping to become a slave in his father’s house. His father takes him back as a son. So, Jesus gives us a new identity as sons of God. And I do mean sons, and not sons and daughters or children. In the 1st century daughters had no inheritance, but in Christ, we all share of it. So that is our true identity if we walk after Christ. And that is when we are truly free.

I don’t want to force anybody to be Christian. I believe that one of the greatest mistakes in Christian history was exactly that: to force people to become Christian. As I said, religion can easily create a slippery slope in the heart, and Christianism is not necessarily an exception. But while other religions are about what we do, Christianism in its essence has at least the potential to be what has been done for us. And that is truly humbling. And I believe this has important political implications: we pray for all. We hope for the best. We trust in God. We respect others.

So Merry Christmas to all! I hope that this is a time for remembering the birthday boy, and what he did, especially on the cross. And that we can all work for a world freer, where people can become Christians – if they choose so.

Courts as Modern Civic Churches?

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.