Journal of Law, Religion and State - Volume 11, Issue 1-3, 2023

Should judges engage in theological deliberations? This question has often been asked in the context of religious claims before the courts in India. Following the hijab ban by the Karnataka government, the subsequent decision of the Karnataka High Court (khc) upholding it, and a split verdict by the Supreme Court of India (sci), the question is doing the rounds once again. The present article attempts to critically analyze the decisions of the khc and the sci on the hijab controversy. The analysis draws on the claim of Justice Dhulia that the courts are not the proper forum to engage in theological deliberations, and judicial interference is warranted only when the limits set by the Constitution are violated. In alignment with the claims of Justice Dhulia, the present article argues that in matters concerning government interference in religious practices, the focus of the reviewing court should be more on the legitimacy of the restriction rather than the religious validity of the practice. The author agrees with Justice Dhulia that in matters concerning the right to religion, proportionality is objectively the better standard of judicial review, as it dissuades the court from inquiring into the religious and cultural practices of the parties.

This article analyzes how the evolution of religiosity will affect the secularity of Spanish law. In a liberal constitutional system such as that of Spain, the influence of religion on law is inevitable. The article proposes a model based on two variables: the increase or decrease of the religious population and the capacity and willingness of religions to influence secular law. The four possible resulting scenarios are religious aggrandizement (a growing religious population seeking to shape the law); religious secularization (a growing religious population with a worldview compatible with secularity); religious backlash (some religious minorities undermining the secularity of the law); and religious diminishment (a declining religious population losing its capacity or willingness to influence the law). The model demonstrates theoretically that inclusion policies do not necessarily lead to the Islamization of Spain. Ignoring religious issues can lead to the marginalization of a religious minority, which favors radicalization and non-acceptance of secularity.

Internalization of costs of religious preferences fits the religious self-perception and ideology of many religious communities and is in their long-term interest. It also strengthens the external value of religious communities, norms, and institutions for the wider society.

Many forces press religious communities to reduce the costs of religious preferences. Within a community, costs are reduced by limiting the available choices or shifted to its weaker members; outside the community, costs are shifted to other groups or the state. Incentives influence the allocation of costs, which in turn shape internal communal choices and the religious vitality and sustainability of the community. The allocation of costs also affects the external relations of communities. This article suggests that the allocation of costs is yet another aspect of religious and ideological communities in liberal states that deserves investigation at the constitutional, legal, and regulatory levels.