Since the end of World War II and the beginning of the human rights era, a common narrative has dominated international discussions of law and religion, especially in Europe, that emphasizes the alleged idiosyncrasy and uniqueness of U.S. Constitutional law regarding freedom of religion. What I call the “standard story” notes that unlike human rights instruments, and the constitutions of most European States, the U.S. Constitution contains an “Establishment Clause” prohibiting an establishment of religion, while European countries do not have prohibitions on state establishments, and indeed the relationships between religion and the state fall along a continuum running from cooperation, favored religions, to actual state establishments of religion. According to the standard story, the Free Exercise Clause of the U.S. First Amendment is a precursor of and has analogues in the human rights instruments’ provisions protecting freedom of thought, conscience, and religion, but the Establishment Clause is characterized as being sui generis, a thing unto itself. The U.S. experience with the antiestablishment principle, symbolized by Jefferson's wall of separation, the standard story notes, is so unique and so different that the lessons gleaned there have very little to offer Europe, or indeed perhaps the rest of the world. In this article I argue, as my title suggests, that the American experience is not as unique as some (especially Europeans) sometimes think it is.

In Catholic doctrine, church and state are two different and autonomous institutional subjects, but they are mutually linked. Therefore, a believer, as a citizen, is a subject simultaneously of two legal systems; the state is bound to recognize the confessional dimension of its own members, and the church is called to realize its proper ends within a precise political-social context. The Second Vatican Council (1962–1965) constitutes for the Catholic Church a point of change and renewal. It did not limit itself to affirming the coexistence of the two systems in their independence, but it declared the necessity of a mutual alliance for the good of citizens and believers.

Therefore, the church offers its own contribution to the state, favoring in this way the right to religious liberty; and the state allows the church to establish itself and carry out its proper mission in an institutional form, guaranteeing the protection of the rights of citizens as believers for the free expression of their faith, whether in a private dimension or in an organized form. Vatican II abandons, therefore, the concept of “state religion” in the classic sense of the term, and thus the privilege reserved to one among numerous religious expressions, and opens an authentic collaboration between parties as a prerequisite for the good not only for individual believers and religious organizations, but also for society itself. In particular, religious liberty finds its foundation no longer in the concept of truth (that legitimized the exclusion of other confessions in that they were “not true”), but in the concept of the dignity of the person, which must be protected as such.

The Argentine Constitution contains two provisions regarding church-state relations. The first one recognizes the right of all people to the free exercise of religion. The second one provides that the state must financially support the Catholic Church. Based on this latter clause, over the years a complex regulatory scheme has been developed that differentiates that church from all the other churches and religions. Those differences are addressed in this article. The author argues that the religious establishment does not depend only on how the state defines itself (e.g., through a declaration in the constitution), but also on the way in which it treats people based on their religion. If that treatment is unequal—for example, when there are legal privileges only to a single church—then there is a kind of establishment of religion. It has been claimed that the religious establishment is not itself incompatible with religious freedom. In arguing that religious minorities can hold a different opinion, the author offers a brief account of the problems faced by non-Catholic faith communities in Argentina because of the state's unequal treatment. Finally, the author analyzes whether the reasons given to justify the legal differences between religions are acceptable. Otherwise, it could be said that there is discrimination—at least, in a broad sense—against religious minorities. While this article focuses on the Argentine case, the issues addressed are relevant to any country dealing with the unequal treatment of people based on their religion.

In accordance with Thai conceptions of Buddhist kingship, Thai rulers have felt obliged to devote considerable energies towards the promotion and protection of Buddhism. Over the past century (and more), state laws have been instituted and bureaucratic agencies established to regulate and implement such promotional and protective activities. This article outlines some broad trends and patterns in the bureaucratization of Buddhism in Thailand, and discusses their implications for religious freedom. It argues that although Buddhism has been extensively bureaucratized, the implications for religious freedom have been less severe than one might perhaps expect, owing not least to the fact that Buddhism is a monastic religion. However, recent developments—taking place in the wake of the 2014 military coup and the 2016 royal succession—suggest that the legal environment is changing in ways that may have negative implications for religious freedom in Thailand.

This article presents a comparative anthropological approach to studying the bureaucratization of Islam in contemporary Southeast Asia. In line with this approach, the article understands the bureaucratization of Islam not simply as a formalization, expansion, and diversification of Islamic institutions and legal frameworks; rather, bureaucratization is investigated as a social phenomenon that transcends its organizational boundaries and informs dynamics of socio-legal change alongside transformations of the meaning(s) of Islam in state and society. The article centers the state's “classificatory power” and its societal coproduction and contestation, and it takes both functional and hermeneutic modes of analysis into consideration. While the bureaucratization of Islam is always embedded in and shaped by power-political constellations, it simultaneously produces social and doctrinal meanings that are unique to its locally specific discursive arenas. Therefore, more conventional functional perspectives on bureaucratic Islam can be beneficially enriched by a more hermeneutically oriented anthropological analysis, as the article illustrates, based on ethnographic data gathered in Brunei and Singapore.

The article first introduces the anthropology of bureaucracy and elaborates on the absence of such studies on state-Islam relations in Southeast Asia, as well as the potential of bringing these streams of scholarship into a fruitful dialogue. Second, it presents the Bruneian case study, focusing on postcolonial Islamization policies, the bureaucratization of a national ideology, legal reforms, and their workings on the microlevel. Third, it moves on to a regional comparison, by illustrating how Islamic knowledge and meaning-production inherent to the bureaucratization of Islam unfolds quite differently in Singapore, despite partly overlapping functional patterns. While anchored in Brunei and Singapore, the article offers a conceptual framework and analytic vocabulary for a wider study across and potentially beyond the region.

The way in which Islamic courts and laws are developed and how religious legal apparatuses shape the relations between—and within—religious communities has been a common source of debate among scholars. This article analyzes the growing institutional power and authority of Islamic courts and judges in Malaysia since the late 1980s to contribute to this theoretical debate. Specifically, it compares two critical phases of institutional development of Islamic courts in Malaysia's largely secular judicial system: the first under the premiership of Mahathir Mohamad before the dismissal of his deputy, Anwar Ibrahim (1980–1998), and the second under the post-reformasi (reform) period (1999–present). Original data gathered at the Jabatan Kehakiman Syariah Malaysia (Department of Syariah Judiciary Malaysia) and other government and legal agencies, fieldwork, and semistructured interviews with Islamic and civil court officials both at the federal and state levels document the institutional expansion and administrative independence that the Islamic courts and judges have successively gained in relation to their civil counterparts. It is argued that the gradual bureaucratization of Islamic courts can best be explained with reference to the interests—and strategic coalitions—of political and religious elites within the majority community to sustain a dominant regime and majoritarian rule based on communal identity.

Indonesia's national ulama council, the Majelis Ulama Indonesia, or MUI, has successfully transformed itself during the reform era reversing its earlier relationship with government. It is the MUI that now sets the agenda on appropriate ways to recognize, protect, and promote the majority faith. However it does not operate entirely separate to the state, indeed, there are numerous points of contact and mutual dependence between this group of Islamic scholars and state agencies.

This article offers two case studies on religious freedom demonstrating different aspects of the MUI's self-appointed role of national mufti. The first case study demonstrates how the MUI has taken control of the high ground of religious doctrine. Through its response to blasphemy cases and deviant Muslim activities the MUI defines appropriate, orthodox Muslim conduct. The second case study deals with the revised regime of halal food certification. Here the state has sought to bring the MUI back into its embrace, partly as a result of corruption scandals. In doing so, however, Islam continues to be further entrenched in state law and regulation.

Indonesian Islam was said to be deconfessionalized, reflecting the nature of the former authoritarian and bureaucratic state's engagement with various Islamic institutions. The changing role of the MUI demonstrates that the state and law are becoming increasingly confessionalized. This change has significant implications for Indonesia's democratic constitutional framework, evident in what these cases say about the enjoyment of the fundamental right of citizenship.

The phenomenon of “secret” (siri) Muslim marriages—marriages that are conducted without state recognition—has become a hotly debated topic in Indonesia, particularly since the emergence of Muslim marriage agencies that organize unregistered online marriages. The issue is particularly contested between the state, women's activists, legal activists, and religious leaders. This article analyses the current efforts of the Indonesian state to bureaucratize Muslim marriages by insisting that unregistered marriages need to be registered with the state, and the societal responses to such regulations. Those who believe in the importance of state registration of Muslim marriage emphasize that it is an integral part of social reform. However, it has also been seen as creating problems when it only serves the interests of the majority and stands in the way of minority religious understandings, particularly by some conservative Muslims who believe that marriages within the Muslim community should be regulated by Muslim leaders (ʿulamāʾ) only, and not the state. This article argues that unregistered marriage has been the real test of the bureaucratization of religion in Indonesia. The government's effort to demonstrate its Islamic credentials by accommodating the people's majority religion has led it to assume an ambiguous position on the issue of unregistered marriages.