A conservative friend and I spotted the Onion’s headline “Activist Judge Cancels Christmas,” and — unsurprisingly for all of you who have put up with my ranting on this subject — proceeded to have a disagreement. He predicted that there would be an instance of “life imitating art,” and I found the notion of a judge’s interfering with non-governmental celebration of Christmas as ridiculous as the Onion did. (The parody is not about state-sponsored Nativity scenes, which are likely to be found unconstitutional.) I said that I wouldn’t want the government to attempt to represent Hinduism, as they’d probably make as much a muck of it as non-Hindu retailers do, and continued to be puzzled as to why Christians and the occasional Jew did. He replied that this was only because I was living in a country where the government was unlikely to do such a thing, and that I’d be less likely to protest it in India.
My understanding was that India’s Constitution had requirements similar to those of the U.S. First Amendment, requiring that the government neither establish religion nor constrain the exercise of it. But a closer look shows that in this, as with so many things, the American Founders valued brevity over the locquacious explanation dear to desi hearts, and I hope that some Mutineers can help me understand how the difference works out in practice.
The First Amendment says simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and with that simplicity leaves room for scores of Supreme Court decisions and hundreds of books to try to figure out what those few words mean. To caricature somewhat, we thereby get the originalists, who say that this means what the Founders probably meant, that Congress could not prefer a particular Christian denomination; the textualists, who say that it means Congress can’t pass a law actually establishing a religion as the official state religion; and the “activist judges,” who say that this means all governmental entities must keep away from religion and religion must keep away from them, because such are the demands of a religiously diverse country.
In the example of government vouchers for religious schools, the originalists and textualists would OK them (and the originalists quite possibly permit discrimination against a school of a non-monotheistic religion) and an activist judge would nix them.
The Indian Constitution is far more explicit, and I pity the poor judges left with so little room to be activists. Article 15 prohibits discrimination on the basis of religion; Article 16 prohibits such discrimination in public employment; Article 25 guarantees freedom of conscience; Article 26, freedom for religious institutions; Article 27, freedom from paying taxes specifically marked for a particular religion. Article 28 is very detailed: it says that an educational institution supported wholly by the State cannot provide religious instruction, except for institutions administered by the State but established by a trust that requires such instruction; it also says that no State-recognized or even -partly funded institution can require attendance at religious instruction or worship. Article 30 applies Article 15’s non-discrimination to establishing educational institutions and receiving state aid for them; Article 325 applies it to being on an election roll.
There are plenty of “Nothing in this article shall”s to allow the government all sorts of interference with religion. Article 16 says there can be a “law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.” Article 25 allows the government to interfere with Hindu institutions: “the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
In short — too late! — I was wrong in thinking that India’s situation regarding church and state is much comparable to that of the U.S., notwithstanding this excellent article that attempts to draw parallels. India has a system much more like the one that conservatives prefer, in which government and religion are frequently “entangled,” to use the terminology of exactly what is not supposed to happen in the U.S.
However, India also provides an excellent example of what happens when such entanglement is permitted. A single Google of “India government temple” turned up a 1983 Hinduism Today article about the Tamil Nadu State Department of Hindus’ Religious and Charitable Endowments Commission’s plan to assume the administration of the Chidambaram Nataraja temple. Nor does this appear to have been an isolated instance of interference; a couple of years ago, the government attempted to ban animal sacrifices at the same temple, and Tamil Nadu government continues to interfere with the language and practice of religion at temples under its oversight. Not to trash TN alone, my home state of Andhra Pradesh has engaged in various shady transactions involving temple lands, to the point that the courts now have to become active, if not activist.
I doubt that those who claim to desire more “religion in the public square” would want to have the public square in their religion. While funding can be quite nice, restrictions and takeover rarely is so welcome. Religious groups of all types in the U.S. already balk at having generally applicable laws applied to them (hence the RFRA and RLUIPA), so having the government make rules specifically intended to govern religious practice would be anathema.
