The modern architecture of religious freedom as a fundamental right

In analyzing a series of recent constitutional and international human rights cases involving claims to religious freedom, this chapter argues that there is a distinctive logic that simultaneously grounds and shapes the normative architecture of religious freedom as a fundamental right. Counterintuitively, this logic is shared across the Western and non-Western divide and operates in two main forms: first, in the political rationality of the modern state as a claim to state neutrality toward religion (“political secularism”); and second, in the constitutional adjudication of the right to religious freedom resulting in a distinctive modular and bifurcated structure of legal reasoning (“universal right”). The paradoxes and antinomies internal to the relation between political secularism on the one hand and universal right on the other have far-reaching implications for our understanding not only of the modern categories of religion and religious subjectivity, but also of conceptions of religious freedom understood as a fundamental right subject to the political rationality of the modern state.