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This chapter is intended to elaborate on the existing academic literature addressing the migration of constitutional ideas. Through an examination of ongoing efforts to enshrine “defamation of religion” as a violation of international human rights, the author confirms that the phenomenon of migration is not restricted to positive constitutional norms, but rather also encompasses negative ideas that ultimately may serve to undermine international and domestic constitutionalism. More specifically, the case study demonstrates that the movement of anti-constitutional ideas is not restricted to the domain of “international security” law, and further, that the vertical axis linking international and domestic law is in fact a two-way channel that permits the transmission of domestic anti-constitutional ideas up to the international level.

In reaching the findings presented herein, the chapter also adds to the universalism–relativism debate by demonstrating that allowances for “plurality consciousness” on the international level may in certain instances undermine fundamental norms previously negotiated and accepted as authoritative by the international community. From this perspective, the movement in favor of prohibiting “defamation of religion” is not merely a case study that helps to expand our understanding of how anti-constitutional ideas migrate, but also indicative of a reenergized campaign to challenge the status, content, and stability of universal human rights norms.

Western liberal states are considered to be secular in nature, with a presumed neutrality of state laws from religious values and norms. However, this claim overlooks the inherent influence that religious groups (namely, dominant Christian churches and groups) have as informal institutions. According to neo-institutionalists, informal institutions, like these religious norms and values, interact with and influence formal state institutions. As such, it could be argued that the norms and values of dominant religious groups within the state have a role in shaping governmental policies and the law. This is evident when examining the debates around multiculturalism and religious freedom that arise in liberal democratic states such as Australia, Canada, and the United Kingdom (UK). In particular, the recent Sharia debates that have arisen in each of these jurisdictions illustrate that the secular state legal system is often positioned as “neutral” and free from religious influence – and thus incompatible with, and unable to, accommodate the religious orders of minority groups. However, this idea that the state is entirely free from religious values is a fallacy that ignores the historical role and influence of Christian churches in each state. In opposing the accommodation of Sharia in private dispute resolution, common arguments include the inherent patriarchal nature of the religion leading to further oppression and disadvantage of Muslim women when seeking resolution of personal law matters (i.e. divorce and property settlements). The secular state law is positioned against this (and religion more broadly) as the “fair” and “just” alternative for minority women – protector of individual rights. Though this ignores the inherent gender hierarchies embedded within formal state institutions, including the legal system that has been implicitly shaped by religious moral values to varying degrees – where minority women are also faced with a set of gender biases. When combined with the internal pressures from their communities and families this can often place them in a double-bind of disadvantage. In this paper, I draw on feminist institutionalism to examine the informal institutional norms that arise from dominant Christian churches in Australia, Canada, and the UK. In particular, the ways in which these informal norms have influenced the development of state laws, and continue to operate alongside the legal system to shape and influence governmental policies, laws, and ultimately the outcomes for Muslim women.

The First Amendment so states,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (United Nations, 2006)

Within the confines of this law are the foundational touchstones of our democracy identifying the protection of five critical freedoms of religion, press, speech, assembly and the freedom to petition to the government. Many institutions of higher education and spheres of academe outline academic freedom as the right of a scholar to express ideas without risk of potential professional consequence. Within that domain of the freedom to express and share information, the American Library Association defines intellectual freedom as,

the right of every individual to both seek and receive information from all points of view without restriction. It provides for free access to all expressions of ideas through which any and all sides of a question, cause or movement may be explored.

In a time where democratic freedoms are being challenged, the concepts of intellectual freedom and academic freedom require examination as key tenets of our democracy to be upheld, celebrated and honored. This chapter will critique and consider how institutions, organizations and entities have a keen ability to be empowered and disempowered by the appropriate execution or the lack of execution of both the tenets of intellectual and academic freedoms. This chapter will deconstruct both concepts through the lens of a social justice framework, thereby posing the question how challenging key democratic elements of the citizenry to express and share ideas, inform and responsibly disseminate ideas handicaps both the will and core of a democracy to thrive. This chapter will highlight how communities expand and narrow the domains of intellectual and academic freedom, from within the United States exploring the role of the Constitution, yet also infusing a global perspective. This chapter will examine what both academic and intellectual freedoms look like outside of the United States, and how theoretically and tangibly the concepts are applied. This chapter explores the application of the core tenets of intellectual and academic freedoms through a social justice framework and the introduction of reframing the consideration of both freedoms as human rights. A social justice framework incorporates the principle of fair and impartial treatment being afforded and entitled to all members of the citizenry. Seemingly to oppose and prevent these modes of expression and foundational elements of freedom both obstruct the principles of social justice and disrupt a democracy.

The 2015 Obergefell v. Hodges decision accomplished more than the national legalization of same-sex marriage; it also laid bare a deep rift among US Supreme Court justices over the question of whether and how religious objections to same-sex marriage should be accommodated in this new era of marriage equality. This chapter will explore the rift revealed in Obergefell between the Court’s differing conceptions of religious free exercise and will highlight the ways in which this legal dispute was translated into a forceful mode of conservative religious activism in the buildup to the groundbreaking 2016 election.

The religious tradition of male circumcision has come increasingly under attack across a number of European states. While critics of the practice argue that the problem is about children’s rights and the proper relationship between secular and religious traditions, Jews tend to see these attacks within the longer history of attempts to assimilate and remake them according to the norms of the majority. Using the 2012 German legal controversy concerning the issue as my vantage point, I explore how contemporary criticism of male circumcision remains entangled with ambivalence toward Judaism and the Jews as the “other.” Through a close reading of the arguments, I show how opponents use the seemingly neutral language of universal human rights to (re)make Jewish difference according to the norms of the majority. I conclude by arguing that such an approach to this issue runs the risk of turning Jews once again into strangers at a time when cultural anxieties are troubling European societies.

This chapter provides a cross-cultural look at the intersection of religion and the state with a focus on social control, social movements, political authority, and legitimacy. To better understand the complexities of governance, this chapter examines state social control of religion with a specific focus on the effects of that control on society. State leaders often seek to control and use the power of religion to gain legitimacy, authority, and control over citizens. Conversely, religious leaders sometimes seek to engage and even control the power of the state. This chapter highlights some of what happens when religious leaders directly engage in politics and challenge the social control mechanisms of political authority.

At times religious majorities seek not only to participate in the public square, to make policy, but also to exercise complete control of political and cultural institutions. In many nations, from Christians in the United States to Buddhists in Myanmar, some religious and government leaders share the goal of complete religious control over their societies. What happens to the religions and to the society when these religious and government leaders are successful? What happens to the religion when a state controls, supports, and promotes that religion? This chapter uses the case histories of the repression of the Muslim minority by the Buddhists nationalists in Myanmar and the desires of the United States Christian Dominionists goals to illustrate and highlight the way that the twin powers of the state and religion serve as direct agents of social control by transmitting values of each institution through law, policy, and by punishing those who deviate.