Sociobgy of Religion 2006, 67:3 271-294

The Sociology of Religious Freedom: A Structural and Socio-Legal Analysis

James T. Richardson
University of Nevada, Reno

This paper offers a structural and socio-legd analysis that examines historical, sociological, and cultural factors that have given rise to and promoted die idea of religious freedom in modem human societies. The effort involves an integration of research from the sociology of new arui minority religions with theoretical ideas from the Sociology of Religion and the Sociology of Law. The relationship of pluralism to religious freedom is examined, as is how the pervasiveness, centralization, autonomy, type (adversarial vs. inquisitorial), and discretion of legal and judicial systems impact religious freedom. The application of key ccmcepts from the work of Donald Black, including status, intimacy, and third party partisanship seem especially useful, and well as issues related to the social production of evidence used in legal cases involving newer and controversial religious groups

INTRODUCTION
Religious freedotn is an' itnportant and almost universally declared value in today's world, but this has not always been the case. Indeed, religious freedom is a relatively new concept that has spread widely around the globe. Explaining why this has happened is the focus of this sociologically oriented analysis.' The major thesis of this analysis is that there are endogenous and exogenous (Wejnert, 2005) historical, structural, and cultural conditions that contribute to the development and tnaintenance of religious freedom. Indeed, I will assert that

* Direct correspondence to: James T. Richardson, Judicial Studies, University of Nevada, Mail Stop 311, Reno, Nevada 89557. E-mail: itr@unr.edu. An earlier draft was presented at annuxil meeting of the Association for the Sociology of Religion, San Francisco, CA., August, 2004. Appreciation is expressed to reviewers for their helpful suggestions. 'A study of the development of religious freedom is obviously related to the spread of democracy in the modem world. See Wejnert (2005) for an excellent study comparing the impact of endogenous and exogenous factors on the development of democracy, and Richardson (2006) for a discussion ofthe specific role of religion in the spread of democracy within the region formerly dominated by the Soviet Union.

271

272 SOCIOLOGY OF RELIGION the idea of religious freedom itself is a product of certain historical/sociological conditions which led to the emhodiment of the notion of freedom of religion. Specifically, The importance of the concepts of a "strong state" and religious pluralism will be discussed, followed by an examination of the roles played in the development and maintenance of religious freedom by some key characteristics of legal systems, including their autonomy, pervasiveness, discretion, type (adversarial versus inquisitorial), and centralization (Richardson, 2000, 2001, 2004). Also examined will be the operation of status and intimacy and third party advocacy variables from the Sociology of Law (Black, 1976, 1999; Black and Baumgartner 1999). While much of what follows derives from the United States' experience, an effort will be made to incorporate comparative material where appropriate to help demonstrate the efficacy of this synthetic approach. This perspective is in sharp contrast to the common view that the idea of religious freedom was developed by certain enlightened individuals early in American history and then enshrined in sacred legal documents and thereafter promoted in America and then throughout the world, as other new and old nations saw the wisdom of the new brilliant idea. In short, I am applying a more through-going sociological perspective for understanding the concept of religious freedom, and attempting to relate its origin and spread to structural and cultural conditions that developed in the modern world. Just as nature abhors a vacuum, sociology abhors "great person" theories of history, and instead tries to explain the sociological conditions under which certain ideas arise at a given time and place.

IN THE BEGINNING
The beginning of the modem concept of religious freedom is usually credited to the tragic religious civil wars that ravaged Europe during the 16th and 17th centuries, following the Reformation, particularly the Thirty Years War in Germany, which brought about the deaths of millions of people. In 1618 the German Empire had 10 million people; in 1648 it only had six million. This decades long tragedy led to efforts to find ways for people of different faiths to live together in relative peace. As Vermeulen (1998: 49) notes:
At least a partial solution to help end these horrible civil wars was brought about by treaties that secured religious peace. In these treaties the state declared itself neutral (at least to a certain extent) and guaranteed a minimum of religious freedom for every citizen. These peace treaties.... may be regarded as the first codification of freedom of conscience and religion and even of human rights in general.

After the killing of millions, the idea of toleration, the forerunner of the concept of religious freedom, seemed to those in authority to be worth trying, and so it was, bringing a modicum of peace to the war-ravaged European subcontinent. However, these religious wars and the persecution that those conflicts entailed

THE SOCIOLOGY OF RELIGIOUS FREEDOM 273 led to the movement of millions of people. Some of those migrants came to North America, to find a better life free of religious violence, demonstrating that the early history of the United States owes much to religious conflicts in Europe. That early history included the concept of religious freedom, even if the causes and processes whereby the idea developed have been oft misunderstood. Tbe United States Constitution is tbe first modern national governing document to explicitly assert tbe idea of religious freedom, witb its now famous and oft-mimicked two part clause in tbe First Amendment dealing witb religion: "Congress sball make no law respecting an establisbment of religion, or probibiting tbe free exercise tbereof..." I bave elsewbere commented on bow tbis clause came to be a part of tbe Constitution (Ricbardson 200la: 161, n 2):
As has been noted by many..., this particular clause...derived from the historical fact of pluralism in the fledgling America. People of many different religious persuasions had come to America, many fleeing religious persecution in their homelands. No religious group had the strength of numhers to dominant the new nation, so a compromise was struck in an effort to make sure that such domination could not occur. The compromise was a bit of, 'If my group cannot he the chosen church, then neither can any other!' Thus hegan the great 'lively experiment' (to use Sydney Mead's famous term) of religious freedom in the new nation of America.

Tbis brief comment refers to tbe stalemate tbat bad developed between tbe Congregationalists in New England and tbe Unitarians of tbe Middle Atlantic States. Botb would bave preferred to be tbe state religion of tbe new nation, but neitber could muster tbe political power to do so. Hence tbe 'great compromise' of tbe religion clauses of tbe Eirst Amendment to tbe Constitution, wbicb was drafted as a key part of tbe Bill of Rigbts in 1789, and finally ratified by tbe requisite number of states in 1791 (Miller and Elowers 1987:1-5). Tbe language may bave been tbat of Tbomas Jefferson, but tbe concept was bom of political stalemate between equally powerful religious groups tbat were dominant in different parts of tbe newly formed nation. THEORETICAL CONCEPTS There are a number of endogenous structural variables tbat relate in significant ways to tbe development and maintenance of religious freedom in modem societies. I will discuss several of tbese variables in wbat follows, including key cbaracteristics of legal systems, as well as tbe continuing role of religious pluralism in developing religious freedom. I will also discuss tbe application of some major concepts from tbe tbeoretical scbeme of Donald Black (1976, 1999) to an understanding of tbe origins and maintenance of religious freedom. Eirst, tbe role of tbe state itself needs examination.

274 SOCIOLOGY OF RELIGION The Need for a Strong State

Vermeulen (1998:49) makes an insightful comment about why the idea of religious freedom gained traction during the time period of the religious wars in Europe:
These peace treaties were not concluded for purely moral reasons. A most convincing argument was that the only way to end a civil war fought for religious motives between equally strong parties was to erect a superior power able to keep them apart and to establish and maintain peace by guaranteeing a minimum level of reciprocal toleration...Only a strong state is able to guarantee religious freedom in a society torn apart by religious dissension.

This quote suggests a strong state as a crucial prerequisite for religious toleration and freedom. Vermeulen probably does not mean that a strong state giiarantees religious freedom, but instead seems to be asserting that a strong state was a necessary but not sufficient condition for the emergence of religious freedom.^ Whether in modern times a strong state is required is an empirical question. But, tbe examples of tbe former Soviet Union and contemporary Communist Cbina, not to mention certain Islamic states certainly demonstrate tbat a strong state can be antitbetical to religious freedom. Also, some would cbaracterize contemporary Americaa "strong state"as demonstrating a degree of intolerance toward minority faitbs, accompanied by a seeming growing tolerance for establishment of selected religious traditions and beliefs (Ricbardson 1995a; Hammond, Macbacek, and Mazur 2004). Tbis being said, it is difficult to imagine a society, particularly a pluralistic one, developing religious freedom witbout a strong state to enforce religious freedom.
Pluralism and Religious Freedom

It is axiomatic tbat religious freedom is of interest only in religiously pluralistic societies. If a society is homogeneous in terms of religion, tben tbere usually would be little concern about religious freedom witbin tbat society. If all agreed on religious matters, wbo would raise tbe question of rigbts of religious minorities, and wby would it even be raised? Having stated tbe axiom, we need to acknowledge tbat virtually all contemporary societies are religiously pluralistic to some degree, wbicb means tbat concerns about religious freedom issues exist in all modem societies (see Ricbardson 2004). At issue is tbe degree and type of pluralism tbat exists in a society and wbat effect tbat bas on religious minorities trying to practice tbeir religion open-

^See Edelman and Richardson (2003, 2005) for discussion of religious freedom in China, as well as the entire issue ofNova ReUgio 6 (2), 2003. See Shterin and Richardson (1998, 2000, 2002) and Richardson, Krylova, and Shterin, 2004) for discussion of religious freedom for minority faiths in Russia. For discussion of Islamic countries see Boyle and Sheen (1997).

THE SOCIOLOGY OF RELIGIOUS FREEDOM 275 ly.^ One might predict some strong relationships between the degree and type of pluralism present in a society and the level of concern about religious freedom. Thus, for instance we might expect a society that is structurally quite pluralistic to have a relatively high degree of religious freedom in terms of both fortnal policy and practical application of that policy. A strong and centralized political and/or religious establishnient might repress religious niinorities, of course, as we have seen in communist countries or under radical Islam regimes. That situation notwithstanding, we would posit a positive relationship in most modem societies between pluralism and religious freedom. For instance, if a highly pluralistic society in terms of religion did not have much religious freedom, then we would predict that another institution such as the military or a political party was exercising an inordinate amount of power in that society. We would also predict that, in such societies, a considerable amount of resources would have to be allocated to suppress religious practices of those groups which were not favored by the state. Such a situation seems to be the case now in Cbina, with its pervasive efforts to suppress religious groups not sanctioned by the state (Edelman and Richardson 2003, 2005). Of special interest in terms of the development of religious freedom are the former communist countries, most of which were relatively homogeneous in terms of religion, even if of different faiths, prior to the advent of communism in 1917 and then the later expansion of the Soviet Union after WWII. To varying degrees communism suppressed religion in those societies, accomplishing this impressively in East Germany, for instance, while failing miserably in Poland, where the Catholic Church managed even to augment its already prominent position in society during the communist decades. Even before the fall of communism these societies were experiencing the effects of religious pluralism, as Western and Eastern cultural influences, including religious diversity, were being felt. But after the fall, a flood of new religions from the West arrived, and something akin to a new "rush hour of the gods" (McFarland 1967) developed within these societies, as citizens sought new answers to perennial questions of life and death. The old god of communism had fallen, and replacements were rapidly imported or developed from indigenous religions. Into this spiritual maelstrom also came new exertions of formerly dominant churches, seeking their historical place of preeminence in their societies, such as in Russia with the Russian Orthodox Church (Shterin and Richardson 2000), but also in other nations in the region (see Richardson, 1997; and papers in

I am aware of recent promising efforts to deconstruct the concept of pluralism into its several constituent parts (Beckford 2003). I will use mainly an approach herein that focuses on visihle religious diversity of groups and individuals within a society. See Witte (2005:242) for the ohservation that structural pluralism underpins intemational norms of religious freedom, as exemplified in a number of international accords.

276 SOCIOLOGY OF RELIGION Borowik 1999, 2003; Borowik and Jablonski 1995; Borowik and Babinsky 1997; Borowik and Tomka 2001). Some formerly dominant and/or official churches in these societies, whose leaders supported the concept of religious freedom in the late 1980s and early 90s when still suffering under communist dominance, were no longer so certain that complete religious freedom is such a good idea. Or they wanted religious freedom to be defined in organizational terms and granted only to formerly dominant religions such as their own. These former church leaders now wanted to limit competition from the newer faiths, and assumed that this could be done by legal edict. These religious leaders had abandoned not only communism but one of the real truths of Marxism, that certain historical forces cannot be resisted. Pluralism is an inexorable historical force that will continue to develop within the former communist world whether it is welcomed by dominant political and religious forces or not. This assertion is based in part on the ease of travel and communication in contemporary society which allows various religious groups to disseminate their message (Dawson and Cowan 2000) . Short of violent repression, there is simply no way the growth of religious pluralism can be stopped, and even violent repression does not seem able to stop the spread of new religious ideas over the long-term. Contributing to this inexorable force is the fact that former communist societies are in effect already quite pluralistic in nature, even if unrecognized by societal leaders (Jagodzinski 1995). Also, these societies have been infused with Western values, including that of religious tolerance, a process that was occurring even before the fall of communism, but was greatly accelerated by that event. These values include some degree of recognition of human and civil rights, including religious freedom. So, the combination of structural pluralism, that is the presence of many different and visible religious groups, coupled with the Westernization of values that include individual autonomy and religious tolerance means that former communist countries will have a difficult time going back to the situation prior to the fall of communism, although it will not be for want of trying in some former communist societies. Western European countries are also having to deal with growing pluralism, both in terms of integrating Islam (see articles on Western Europe in Richardson 2004), but also involving the spread of nontraditional versions of Christianity and so-called New Religious Movements (Shupe and Bromley 1994). This situation has been particularly the case in recent years in France, Germany, and Belgium, although there have been some problems in other European societies as well. But, societies such as the Netherlands (Kranenberg 1994) seem relatively free of such difficulties, and Denmark as well, although the rise of Islam in these societies is severely testing that historical tolerance (Aries 2004; Singelenberg 2004; Rothstein 2004; Davie 2005). Western European societies have been quite pluralistic for some time, and that trend continues. Some European leaders do not comprehend this develop-

THE SOCIOLOGY OF RELIGIOUS FREEDOM 277 ment or its implication, or if there is an understanding, opt for trying to retain more homogeneity and religious and cultural "purity" than seems possible. Major battles have erupted over "new religions," sometimes called by the derogatory terms "cult" or "sect", as well as older religious minorities such as Jehovah's Witnesses. Severe restrictions have been placed on minority and new faiths in some Western European countries, to such an extent as to have provoked international comment and condemnation in some cases, such as with Germany, Belgium, and France (Introvigne 1998; Beckford 2004; Duvert 2004; Luca 2004; Eautre 2004; Introvigne 2004; Swantko 2004; Richardson and Introvigne 2001; Siewert, 2004; Aires 2004; Gunn, 2004). These developments in Western Europe have been used by some former communist countries to justify actions being taken to limit religious competition and re-establish formerly dominant churches as defacto if not dejure state churches (see Shterin and Richardson 2000 on the Russian situation). This could be considered an example of a spatial or regional exogenous factor (Wejnert, 2005) that might influence the development of religious freedom in areas close to Western European democracies. One method for handling pluralism within the European context, which is influenced by its history of state sanctioned churches, is to develop a hierarchy of religions (Richardson 2001). Thus, some European societies arrange religious groups into lists, grouped into several different categories. Such a grouping might look like the following: Table 1 Hierarchy of Religious Groups Used in Some Societies

OEEICIALLY SANCTIONED CHURCHES, ALLOWED EULL ACCESS AND ALL PRIVILEGES

OTHER ACCEPTABLE CHURCHES, ALLOWED LIMITED PRIVILEGES

ALL OTHER RELIGIOUS GROUPS, WITH EEW OR NO PRIVILEGES

ILLEGAL GROUPS, PUNISHED EOR BEING PRESENT AND ACTIVE

278 SOCIOLOGY OF RELIGION Although the grouping of religious organizations within the separate hoxes could vary over time and hy society, it is possible to offer some important characterizations. For example, those religious groups in hox 1 can have access to schools for religious education, to the military and prisons with chaplains, and they are often granted special tax status and state funding, as well as special legislation (a "concordant") granting them privileged status in the society. Groups in hox two may he religious organizations that have a special status in other societies of importance to the host society, or they may have historical status within the society. For instance, some European countries will grant a second level status to major religious organization that operate as major denominations within the U.S., or they may allow the Muslim community special privileges, such as a de facto recognition on polygamous marriages. Also, the Jewish faith may he allowed to function with some privileges, especially in the aftermath of WWII and the holocaust. Those in hox 3 have few privileges, and may not he allowed to own property or rent puhlic halls, or proselytize for memhers. They might he allowed to meet in private homes and possess their religious materials and books, hut little else. To violate these regulations may result in fines and even imprisonment. Those groups that fall into group 4 function underground, and may be subject to harassment hy the authorities and others involved in self-help but officially sanctioned social control. These category 4 groups may he designated hy the media and government officials in quite derogatory terms, as part of social control efforts (Dillon and Richardson 1994; Richardson 1993a). Sometimes those in these lower categories may be told that they have to exist for a certain length of time and achieve a certain number of participants before being considered for a higher status and more privileges (Witham 1997). Such hierarchies of religious groups serve as guidelines for social control agents, either puhlic or private, with more severe sanctions applying the lower one's group is in the particular hierarchy functioning in a given society. Thus, pluralism can be structured in a way that allows considerable social control to be exerted over selected segments of tbat pluralism. Tbis is a common pattem in Europe for both Western and former communist countries, thus religious pluralism does not directly equate to significant religious freedom in every society. Other historical or political forces may interfere with the "natural" impact of structural pluralism. CHARACTERIZATIONS OF LEGAL SYSTEMS
Centralization and Pervasiveness

Societies vary greatly in terms of the character of their legal systems, an important consideration when discussing religious freedom. Some have legal systems that are very centralized and pervasive, and which act upon many aspects of the lives of individuals, groups, organizations, and institutions within a society.

THE SOCIOLOGY OF RELIGIOUS FREEDOM 279 There is an obvious distinction between tnodem and pre-modern societies in terms of centralization and pervasiveness. However, we can also discern important differences on this variable within the category of modern societies, particularly pertaining to religion. For instance, in the United States there is a very pervasive legal system that touches virtually every person's life on a regular basis. But, when one considers religion and religious freedom within the context of the U.S., there are interesting historical and structural characteristics that represent limits to pervasiveness of the legal system in matters religious. Unlike many countries, the individual American states have considerable autonomy, thus placing some limits on the functioning of the federal legal system in the U.S. Although the federal legal system has supremacy, the various states can afford some protections for religious ideas and practices within there borders.'' Also, as already noted, the Constitution of the United States affords considerable protection for religious beliefs and behaviors throughout the society. That protection is not absolute: for example, polygamy, snake handling, and use of LSD in religious services are all against the law in the U.S. (Finkelman 2000:462-464; Witte 2005:126-129, 167), but it is also quite legal to ritually sacrifice chickens in a religious service in the U.S., as indicated by a unanimous Supreme Court opinion just a few years ago (Witte 2005:126-129, 167), and it is also legal for open and aggressive proselytizing by smaller and newer faiths to take place on the streets of America, again repeatedly affirmed by the nation's highest court (Cote and Richardson 2001). Religion does not serve in the U.S. as a valid shield against overt law-breaking, although even a straight-forward appearing episode of violating a law takes on special meaning if claims are made that the person was acting out of religious motivations. Most cases involving such claims will receive special attention to ensure that the person's religious rights are not violated, thus offering some protections for religiously motivated behavior. Therefore, the Constitutional protection afforded religion through the First Amendment stands as a bulwark against incursion of the state into things religious in the U.S. (Bromley and Robbins 1992). This makes it more difficult (but not impossible; see Richardson 1995a,b) for the state to exert control over religion in general and over newer faiths, including the controversial ones that have caught the attention of the

The ability of American states to assert religious freedom in the face of federal limitations is illustrated by reaction to the 1993 Smith v. Oregon case, a decision establishing limitations on religious freedom at the federal level. This decision led directly to the Religious Freedom Restoration Act (RFRA) which was designed to overturn the effects of Smith and affirm religious freedom as a primary value in American society. However, the U.S. Supreme Court ruled in 1997 in Cit^i ofBoeme v. Flores that RFRA was itself unconstitutional, thus reestablishing Smith as law. This in turn led to a number of states passing "little RFRA" laws applicable only in a given state. See Richardson (1999a) for an analysis of the federal RFRA, and for discussion of state efforts to establish state-level RFRAs. See www.HSLDA.org. which has a discussion of state RFRA laws.

280 SOCIOLOGY OF RELIGION media and the general public in recent decades. To exert such control is to limit the religious freedom of some groups and their practitioners (see Shupe and Bromley 1980; Hammond et al., 2004; McGraw 2003; Richardson 2001a). In most modem European countries constitutional protections exist for religious freedom, or the nations have signed intemational accords guaranteeing religious freedom. However, the provisions do not have the same meaning and are not enforced in the same manner as in the U.S. This is mainly because there is nothing analogous in those documents to the anti-establishment clause that appears in the U.S. Constitution's First Amendment (Witte 2005:243). In large part this may be a function of the historical fact of official (and quasi-official) state churches having evolved within the European context.' In many European countries there is an officially sanctioned type of religion, even if the specific formal arrangements for that sanctioning differ somewhat. Sometimes that officially sanctioned religion is dual in nature, as in Germany or the Netherlands, both of which have both Catholicism and a type of Protestantism enjoying official status. In societies with an official church or churches there may be a tendency for the legal system to become involved in enforcing that official status. When this occurs the legal system may work with other institutions in the society to make sure that the official brand of religion is adhered to by citizens, and that nonofficial religions are discouraged. In such situations a govemment may attempt to manage religion and the religious life of citizens to a considerable extent more than in other Western democracies, thus potentially limiting the religious freedom of its citizens. This would especially be the case in a more religiously pluralistic society which had a hierarchy of acceptable faiths, differentiating between those faiths in terms of status and privilege. For instance, the legal systems of France, which has Catholicism and an "unofficial" religion, seems more prone to enforce normative behavior in the area of religion than is the case in the Netherlands, Denmark, or Italy (see Beckford 1985, 2004; Kranenborg 1994; Richardson and van Dreil 1994; Introvigne 1994; Luca 2004; Intorvigne 2004; Duvert 2004; Homer 2004; Singelenberg 2004; Rothstein 2004). It is also clear that in some European societies conflict may develop between the political institution and the legal system over the issue of religious freedom. Such seems to be the case in Germany at present, where some minority faiths, including Islam, are iinder considerable pressure from political authorities (Seiwert 2004; Aires 2004), but have some protection afforded them

*A related consideration is that most Western European countries have a more developed "welfare state" that both supports citizens throughout their lives and encroaches into those lives to more depth than in some other societies, including the United State (Richardson 1986). This encroachment can and does involve things religious (Richardson and Introvigne 2001).

THE SOCIOLOGY OF RELIGIOUS FREEDOM 281 because of a relatively autonomous legal system, a variable to which we now turn our attention.' Autonomy^ A legal system may have more or less autonomy. Stated another way, in some societies judges are able to exercise more discretion in their decision making than is the case in other societies, a situation that could assist the development of a culture of religious freedom. In some societies the legal system may be dominated by other institutions, such as political or military institutions, or even by a church that has special recognition as the state church. It is clear, for example, that the legal system in the United States enjoys considerable autonomy compared to many other societies. The legal system has seen an evolution of a historical role in America that allows it, on occasion, to dominate the Executive Branch (the Presidency), as well as the Congress, through the process of having the power to declare laws passed by Congress unconstitutional, or being able to review actions of the Executive Branch for legality, as occurred in the infamous Watergate scandal of several decades ago. Many Western European societies have relatively autonomous legal systems, with the courts able, to varying degrees, to exercise independence from other institutional structures. Thus, we see the court systems of Italy, Germany, the United Kingdom, and a number of other countries able to function with considerable freedom from direct intervention by other institutional structures. There are variations in the autonomy of judicial systems among these European societies with, for instance, France having a less autonomous judicial system than is the case with Italy, a sitiuation with implications for the way minority faiths are dealt with in those societies.* The case of Hungary is very interesting, given its recent history under communism. This society also demonstrates a legal system with considerable autonomy, especially with the power assumed by and granted to its Constitutional Court. Kim Schepple (1999, 2003) describes how during the 1990s this court regularly declared, with impunity, a significant proportion of the laws passed by the

'This analysis could be extended to incorporate transnational entities such as the Council of Europe, with its transnational judicial system, the European Court of Human Rights, which exerts authority over member states, including in the area of religious freedom. See Richardson (t995c), Evans (2001), and Richardson and Garay (2004) for discussions of religious freedom cases dealt with by the ECHR, which could be thought of as an important "third party partisan," a concept from Black (1999) to be discussed herein. 'This and some following sections are expansions of ideas presented first in Richardson (2001a). 'As noted in footnote 6, European countries are members of the Council of Europe, and thus have voluntarily given up some national autonomy by granting authority to the European Court of Human Rights.

282 SOCIOLOGY OF RELIGION Hungarian Parliament unconstitutional. She also describes how its advice was sought by the Parliament as it considered new legislation. Thus, in a very short time, Hungary came to resemble some long-term democracies of the West in terms of the degree of autonomy granted its judiciary (see Ricbardson 1997a). Once the top courts in a judicial hierarchy within a society achieve some degree of autonomy, tbis may empower otber courts within tbat system. These lower courts may attempt to "measure up" to the autonomy of courts which are above them or whicb bandle different relatively autonomous spheres of responsibility within tbe legal bierarcby (such as a state court systems and tbe separate federal bankruptcy or maritime courts which exist in the U.S.). A "culture of autonomy" can develop, making autonomy potentially generalizable throughout a legal system, witb lower or different courts being emboldened to act with authority if other courts are able to exercise autonomous power. And, the citizenry, aware of tbe authority of tbe higher courts, may assume that lower courts sbare tbis mantle of autonomy; tbat is, citizens may tend to abide by court decisions more in societies wbere tbere is a culture of autonomy wbicb involves a sbared understanding tbat tbe courts do have independent power. Sbarply contrasted witb high degrees of autonomy, are situations where tbe courts serve only at tbe pleasure of despotic rulers, witb its functionaries appointed by sucb entities. One only needs to tbink of countries sucb as Iran and Libya, or courts functioning under communism to grasp tbis point. Judges in tbose circumstances understand tbat tbey bad little autonomy, and tbat if tbey cbose to exercise autonomy tbeir jobs if not tbeir lives would be jeopardized. Judges under sucb systems understand tbat they are to assist in implementing an ideology, wbether it be communism, radical fundamentalist Islam, or some otber set of beliefs (see Sbterin and Ricbardson 2002; Ricbardson, Krylova, and Shterin 2004 for examples from Russia). Somewhere in between bigb autonomy and low autonomy societies are otbers wbose legal systems bave not achieved significant autonomy, but wbicb bave varying degrees of freedom to act independent of political, religious, or military institutions. Falling into tbis category are some of tbe societies tbat were under communism for so many decades. It is unrealistic to tbink tbat tbey would cbange ovemigbt into full-blown democracies, witb legal systems functioning as tbey do in more advanced industrial societies in tbe West. Again, Hungary seems an anomalous case in tbis regard, but tbe bistorical circumstances of tbis "courtcentric" approacb taken by Hungary are quite unusual (Scbepple 1999, 2003).'

'Laszlo Solyom (2003), former President of the Hungarian Constitutional Court, writes about the pervasive influence of the German Constitutional Court on developments in Hungary, in what seems a good example of the influence of exogenous variables described in Wejnert (2005).

THE SOCIOLOGY OF RELIGIOUS FREEDOM 283 To say that a society's legal system has autonotny does not mean, of course, that the legal system is free of all considerations of external influence, for courts must act within a cultural milieu, with its specific cultural values and beliefs, including ones concerning religion and religious groups. Thus, judges and other court personnel (which in some countries includes, quite importantly, individual citizens serving as jurors) are individuals who share to varying degrees the values and beliefs of that culture, and, not surprisingly, those personnel wbo make up the legal institutions act out those values as they do tbeir work within those institutions. Thus, one can bave actors witbin completely autonomous legal systems acting in ways tbat to some observers seem quite normative and even in opposition to basic buman and civil rigbts. Tbis could occur, not because of coercion of legal officials but simply because tbose filling roles witbin tbe legal system were acting out tbeir values and beliefs in ways tbat were discriminatory (Ricbardson 2000). Court systems in a society migbt implement racist values, for example, as some observers bave said about tbe United States' legal system tbat incarcerates disproportionate numbers of Black men. Court systems migbt favor one etbnic group over anotber, granting a bigber legal status to one group or anotber because of cultural values sanctioning sucb outcomes. Tbe "Black Codes" and Jim Crow laws establisbed in tbe U.S. after tbe Civil war illustrate tbis possibility (Woodward 1974), as do tbe legal structures developed in Nazi Germany toward Jews (Hilberg 1985). In tbe United States considerable bias against a minority faitb can be sbown in legal cases involving tbe surviving Brancb Davidians, wbo were dealt witb in almost a summary fasbion in botb tbe criminal and civil actions tbat followed tbe tragic episode outside of Waco, Texas in 1993 (Wrigbt 2001; Ricbardson 2001b). Most germane for our purposes bere, legal systems migbt favor one religious beritage over otbers, granting practitioners of tbe cbosen religion a privileged place and special treatment witbin a legal system. Tbis is anotber way of saying that legal systems, even tbougb tbey bave considerable autonomy, migbt not support religious freedom for all citizens in a society, because of tbe implementation of cultural values tbat denigrate certain religions wbile promoting otbers. Tbe consideration of cultural values can be demonstrated by considering tbe possible ways tbat tbe cultural value for religious freedom migbt relate to tbe variable of autonomy of legal systems. Higber levels of autonomy and more religious freedom would be expected to occur togetber more frequently, as would cases of little religious freedom and low autonomy. Tbis logic rests on tbe assumption tbat religious freedom for minority religions requires, among other considerations, an autonomous judiciary wbicb is itself protected from external influences. If jurists are not protected tbemselves, tben understandably tbey would bave difficulty protecting controversial or unpopular religious groups tbrougb tbeir rulings.

284 SOCIOLOGY OF RELIGION Adversarial Versus Inquisitorial Types of Legal Systems

The differences between tbe adversarial legal system prevalent in tbe U.S. and the inquisitorial legal systems found in most European countries and elsewbere also bear discussion. Tbere are obvious ramifications of for bow minority faitbs are treated witbin tbe two types of legal systems. One major issue would be tbe importance to unpopular minority faitbs of baving an independent advocate (an important example of Black's "tbird party partisan:" see discussion below) for tbeir position sucb as could be tbe case witbin an adversarial system of justice. Examination of tbe interaction of variables discussed in tbis paper, sucb as autonomy of tbe legal system, witb the type of legal system (adversarial versus inquisitorial) could yield important insigbts. For instance, one migbt expect tbat tbe best of all worlds in terms of promoting religious freedom would occur witb a relatively autonomous judiciary in a society witb an adversarial legal system, especially if the values of tbat society included an empbasis on religious freedom. SOCIOLOGY OF LAW THEORIES One can also cbaracterize legal systems according to otber variables, including wbo or wbat classes of people bave access to tbe legal system for tbeir private goals, a contingency witb important ramifications for religious freedom. Donald Black's work in tbe sociology of law reveals tbat a number of structural variables impact access to law and tbe legal system, including, for instance, status and "intimacy," as well as tbe partisansbip of tbird parties (Black, 1976, 1999; Black and Baumgartner 1999). Black's work bas direct application to tbe operation of religion freedom in a given society (Ricbardson 2001a, 2004, cbp. 1; 2005).
Status and Intimacy

Tbe bigber tbe status of an individual or a group, tbe more prone tbey are to make use of tbe legal system, and tbe more prone tbey are to be able to work tbeir will wben using tbe legal system. Wbetber or not tbose in bigb status positions support religious freedom will bave significant impact on bow religious freedom is defined and functions in a society. "Intimacy" refers to personal, attitudinal, and cultural closeness to participants in tbe legal institution, a variable obviously often related to tbat of status. Tbe bigber tbe social and economic status, tbe more prone an individual is to baving personal relationsbipsor at least sbaring common valueswitb members of tbe legal system, wbicb in turn may cause tbat system to be more responsive to tbe needs of sucb socially located people. Also, if bigher status individuals or groups have intimate ties with minority religions and tbeir adberent, this can dramatically impact bow tbose minority faitbs are treated in tbe legal system. Plainly tbe variables of status and intimacy can work at cross purposes witb tbe key variable of autonomy, even overcoming apparent autonomy on occasion. Tbis migbt occur in regimes in wbicb powerful political or religious figures can

THE SOCIOLOGY OF RELIGIOUS FREEDOM 285 effectively dictate outcomes of legal actions, or even instigate legal actions tbemselves, eitber privately or as an agent of a governmental agency, against individuals or groups viewed as problematic by tbose in power. We would bypotbesize tbat autonomy of a legal system would be most easily overcome wben tbose in high positions in tbe judiciary sbare cultural values witb tbose in otber bigb status positions in society witb wbom tbey are personally intimate. We are not suggesting tbat autonomy is always overcome in sucb circumstances. Indeed, anotber related bypotbesis to sbow bow tbese variables migbt relate in a manner demonstrating a high degree of autonomy would be tbe following: If a legal system is truly autonomous, tben tbat autonomy will negatively impact tbe intimacy sbared by members of tbat system and otber bigb status persons in otber institutional structures. Also, in sucb situations tbe status of tbose in tbe legal system will be bigb relative to leaders of other institutional structures. Tbese and otber possible bypotbeses can be used to demonstrate bow a societies witb various configurations of key variables treat small and unpopular religious groups not a part of tbe dominant tradition of tbe society. A truly autonomous judiciary can defend itself against tbe actions and desires of bigb status individuals wbo might want to exert control over a given religious group. Tbis would be easier, of course, in a context wbicb included constitutional guarantees tbat bad been deferred to bistorically and wbicb enjoyed public support, a circumstance indicative of a favorable cultural climate in wbicb to defend religious freedom It would also be easier to exert autonomy in favor of tbe value of religious freedom if judges in tbe judicial system knew tbat tbeir decisions were subject to review by extemal bodies, sucb as tbe European Court of Human rigbts (see note 6). But, be reminded tbat earlier in tbe discussion of autonomy I discussed problems tbat can arise if tbose in decision making positions witbin tbe legal system (usually judges, but also sometimes, especially in tbe U.S., juries) are biased about a given religious group, or do not sbare values concerning religious freedom (or tbey do not accept a claim tbat a party is in fact a "real religion").'" Tbis situation could be exacerbated in societies witb centralized and pervasive legal systems. Tbus tbe important Blackian variables of status and intimacy can interact witb tbe issue of autonomy, centralization, and pervasiveness in ways tbat severely limit religious freedom in a given society. Tbey can also interact in a manner

'"See DeWitt, Richardson, and Warner (1996) and PfiefFer (1995, 1999) for experimental studies showing the impact of bias and misinformation on the actions of potential jurors in "cult cases," and see Richardson (1991), Anthony(1990), Anthony and Robbins (1992), and Ginsburg and Richardson (1998) for discussion of some of these major cases involving "brainwashing" claims against so-called "cults." See Richardson (1996) for an examination of the diffusion of "brainwashing" ideology around the world, a situation that would seem to illustrate Richardson and Ginsburg (1996) and Wejnert's (2005) process of diffusion.

286 SOCIOLOGY OF RELIGION conducive to religious freedom, and being able to discern the differences between those two polar opposite situations would be important.
Third Party Partisans

Third party partisans, another of Black's key concepts (Black and Baumgartner 1999), also can play a key role in defending religious freedom. When politically weak religious groups are attacked in the media, by politicians, or in legal actions, they usually are remarkably disadvantaged. But, occasionally such groups may attract unlikely defenders. Some groups or individuals in a society wbo value religious freedom may come to tbe defense of minority religious groups and tbeir practices. Witbin tbe U.S. groups sucb as tbe ACLU or tbe National Council of Cburcbes migbt defend a minority faitb's rigbts to believe and practice tbat religion, even tbougb it was controversial and unpopular. On tbe international level tbere are a number of groups and organizations tbat sometimes enter controversies over religious freedom, including NGOs sucb as Amnesty Intemational, tbe Organization for Security and Cooperation in Europe (OSCE) (Gunn 2002), and pan-governmental organizations sucb as tbe European Court of Human Rigbts (Evans 2001). In otber situations political and otber societal leaders may, for various reason defend unpopular groups. In Hungary, for instance, liberal members of Parliament sided witb tbe Hare Krisbna in battles over tbeir rigbt to receive revenues from tbe State, and tbis also may bave affected tbe positive outcome in a major libel action tbe HK bad brougbt against a prominent leader of tbe Reform Cburcb in Hungary (Kamaras 1997; Ricbardson 1997a). In tbe United States tbe filing ofa large number of amicus briefs by major religious organizations on bebalf of Reverend Moon in bis appeal of bis conviction for tax evasion is anotber prominent illustration of tbird party intervention (Ricbardson 1992b; H. Ricbardson, 1984)." Sometimes, bowever, tbird party partisans may align tbemselves witb tbose wbo are attacking religious groups and working to limit religious freedom. Wben tbis occurs it places minority faitbs at an even greater disadvantage tban migbt otberwise be tbe case. Wben Western anti-cult organizations allied in tbe 1990s witb tbe Russia Ortbodox Cburcb and conservation politicians in Russia tbis resulted is great difficulties for non-Ortbodox religious groups (Sbterin and Ricbardson 2000). Tbere bave even been instances in Russia wbere tbe government took tbe role of a tbird party partisan in a civil action between parents of participants in minority religions and tbose religious groups (Ricbardson et al. 2004).

"The involvement of professional organizations and individual scholars in legal battles involving controversial new religions also might be characterized as intervention by third party partisans (Richardson 1998a, 1997b).

THE SOCIOLOGY OF RELIGIOUS FREEDOM 287 In tbe United States and Europe tbere bas been an intervention by key representatives of tbe mental bealtb profession in ways tbat limit religious freedom for some controversial religious groups, as participation in tbose groups bas become defined as a mental bealtb problem (Ricbardson, 1991, 1992a, 1993c; Ricbardson and Stewart 2004; Kilboume and Ricbardson 1984; Antbony 1990; Antbony and Robbins 2004). Also, cbild welfare workers bave sometimes intervened in religious communities in very dramatic ways tbat include attempts to permanently remove cbildren from tbeir parents in tbe group (Swantko 2004, Ricbardson 1999b). In botb examples tbe professionals can be tbougbt of as tbird party partisans wbo bave aligned tbemselves against tbe religious group, tbereby potentially limiting religious freedom of sucb groups.
Discretion and the Rules of Evidence

Several key sociological variables of importance to understanding bow legal systems operate bave been described, especially as tbey relate to tbe use of tbe legal system as a social control mecbanism for use witb religious groups and practices perceived as deviant witbin tbe greater society. Sucb social control can limit religious freedom. Evidentiary issues, tbat is, rules and criteria for acceptance of evidence and tbe discretion involved in tbeir application will be a focus of tbis brief section (see Cinsburg and Ricbardson 1998; Ricbardson 2000 for more detail). Problems concerning production and quality of evidence can arise in cases involving controversial groups and tbeir alleged practices, even in societies witb relatively autonomous legal systems and a cultural value of religious freedom. Evidentiary decisions can limit religious freedom of minority religions in society in a number of ways. Included would be decisions to admit or not certain kinds of evidence, as well as decisions to produce evidence to support a normative decision (Cooney 1994) or to refuse admittance of evidence tbat migbt be belpful to religious minorities. Sucb discretionary decisions can occur because of cultural values tbat involve biases and stereotypes about sucb groups and practices. Courts seem more prone to allow (or even on occasion to encourage) problematic forms of evidence in cases involving marginal groups and practices so tbat tbe normative role of tbe judicial system can be exercised (Ricbardson 2001a). Tbis can occur because decision makers in legal systems can act out tbeir prejudices and misinformation about sucb groups, based on tbeir stereotypes. Decisions are sometimes made by judges to admit evidence tbat would not be admitted under otber, more normal, circumstances. Also jurors are prone to accept questionable evidence wben it supports notions tbat a strange and unpopular group bas done sometbing illegal, no matter bow bizarre tbe allegations. My contention is tbat legal systems, as tbey bandle cases involving unpopular religious groups and bebaviors, may sbow considerable flexibility tbat enables tbem to function in a normative way, regardless of actual rules tbat migbt operate

288 SOCIOLOGY OF RELIGION concerning what is and is not acceptable evidence.'^ Acting normatively means that controversial and unpopular religious groups would more often lose, and thereby experience an official and legally sanctioned diminution of their religious freedom. Put another way, it seems clear that in any legal action the production of evidence is crucial: without evidence there is no basis for the case. And, it is just as clear that the production of evidence is a social process, subject to the operation of sociological variables such as those discussed above (Cooney 1994; Richardson, Gatowski and Dobbin 1995; Richardson and Ginsburg 1996; Gatowski, Dobbin, Richardson, and Ginsburg 1997). Production and acceptance in court of evidence against religious groups can operate to limit religious freedom, such as in cases involving claims of "brainwashing" that have been used against some religious groups (Anthony 1990; Richardson 1991; Ginsburg and Richardson 1998), claims that a group is a "cult" (Pfeiffer 1995, 1999), or that a religious group is dangerous to others (Richardson 1993a, b, 2000; Dillon and Richardson 1994). SUMMARY AND CONCLUSIONS This analysis of the historical, sociological, and cultural contexts relevant to the development of religious freedom has attempted to demonstrate the value of integrating research from sociological studies of minority and new religions with theories from both the Sociology of Religion and the Sociology of Law. Following is a summary of how some of those ideas may be usefully applied to the treatment of newer and minority faiths in modern societies. Given the centralization and pervasiveness of legal systems in the modern world, coupled with the growth of religious pluralism in modern societies, many legal actions will arise that involve newer and smaller religious groups. The amount may vary by society, but in all modem societies the legal system will be involved in exerting control over such religious groups and practices, a characteristic of such societies that can and does limit religious freedom. Observing the frequency and patterns of social control efforts applied to new religions and other minority faiths can reveal much about the values and organization of a society, as well as ahout the state of religious freedom in that society. The degree of autonomy of the judicial system in a society is crucial to maintain religious freedom, if those occupying positions of authority in that system

'^I am not suggesting that minority faiths always lose legal actions in which they are involved. That is not the case, as the history of religious freedom cases in the U.S. demonstrates (Wybraniec and Finke 2004). However, when minority faiths do win in the legal arena this demands explanation, which could entail attention to the variables discussed herein. See Richardson (1991, 1995a,c, 1998b, 1999b; Bromley 1983, LeMoult 1983) for a discussion of "new religion" court cases, including some in which the new religions prevailed.

THE SOCIOLOGY OF RELIGIOUS FREEDOM 289 share the values of tolerance and religious freedom. If so, then the inherent discretion of any legal system can hecome a hulwark for religious freedom. The type of legal system also is important; in adversarial systems there is a greater chance that relatively powerless religious groups will attract assistance in their legal conflicts. Also, the presence of enforceable constitutional and statutory provisions protective of religious freedom, as well as powerful third party partisans can be crucial to defending religious freedom in a society. Status and prestige variables play a major role in decisions made within legal systems about newer faiths, including key evidentiary decisions that are made by the judiciary. Newer and minority religious groups nearly always have lower status and prestige than the group's adversaries involved in the legal system, including the parties bringing the action against the group, or defending against an action brought by a smaller or newer group or its representatives. Thus, newer and smaller religious groups are disadvantaged from the outset in such processes, limiting the religious freedom of practitioners. The variable of personal and cultural intimacy also plays a crucial role since key decision makers in the legal system may be unfamiliar with new and minority faiths. Decision makers may share quite negative views of certain religious groups and their practices, and those views may have become hegemonic through negative media coverage and the actions of societal opinion leaders. Thus, the newer groups are not only strangers, they may become feared strangers, thought to require normative intervention by those decision makers who may assume that "messages must be sent" that the alleged behaviors and beliefs are not acceptable in normal society. Those normative communications can be acted out in many forms, including the evidentiary decisions or any other discretionary action of judicial and legal systems. Such decisions may limit religious freedom under some of the conditions described herein. Third party partisans can also play a key role in how religious freedom is defined in a given society. If key groups and individuals attack religious groups and their practices and beliefs, then religious freedom will be limited. If third party partisans, including those external to a society, support minority religious groups with their non-normative beliefs and practices, then religious freedom will be more prone to flourish. REFERENCES
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