The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa

This paper explores the normative dissonances and antinomies generated by the politics around religious establishment by examining post-apartheid law reform efforts in South Africa to recognize Muslim marriages. Since the late 1990s, the South African Law Reform Commission has initiated various projects to recognize the claims of and redress past discrimination against different religious communities, including tribal groups living under customary law and religious minorities with their own family and personal status laws. It is striking how the norms and assumptions underpinning this debate differ from engagements involving the claims of religious communities in Europe and North America where broadly Protestant genealogies of the right to freedom of conscience have become naturalized. The value-pluralist nature of the post-apartheid constitutional order is transforming the politics between religious communities and opening new spaces for legal and social reform. We are thus seeing new and intense debates on questions of legal pluralism and the tensions between individual and group rights and identities. This dynamic provides important insights into the meaning and scope of religious freedom as a human right. The paper argues that these law reform efforts have exposed critical ambivalences and normative resistance to the two great transformations which together define the modern politics of religious freedom: the first relating to the emergence of a “secular” public realm imagined to be independent of and in some new relation to “religion,” now viewed as solely a matter for private life (the so-called public/private divide); and the second relating to the redefinition of religion itself as conscience or belief in an age of secular equality where the unstable convergence between conscience and autonomy has gradually reversed in the secular imaginary such that religious liberty is today viewed as autonomy