Summary: In this piece, we continue the discussion on Dr Datar’s paper, the summary of which can be accessed here. In this response, Gaurav Mukherjee critically engages with Darshan Datar’s paper on the Indian Supreme Court’s jurisprudence on religion, situating Dr. Datar’s argument on the management of religion in the broader global trends of the judiciary’s approach when considering protections for minority communities.
As liberal democracies were reshaped by migration and a postcolonial reckoning, the accommodation of religious diversity became a core concern of postwar constitutional design. Moving from relative ethnic homogeneity to pluralism, constitution-makers often settled on strong protections for religious freedom and minority rights as devices to contain emerging tensions. But these were never fully theorized agreements, in a Sunsteinian sense. They instead functioned as uneasy compromises that were designed less to resolve contradiction than to defer it.
How would liberal democracies safeguard the cultural and institutional dominance of the majority while still allowing space for minority communities to sustain their religious self-understandings? In his latest paper, Professor Darshan Datar shows how the Indian judiciary has navigated this dilemma while displaying extraordinary judicial statecraft through a strategy of managerialism: thickening majority religion by embedding it in cultural heritage, while thinning minority religion by reclassifying it as cultural, optional, or disruptive. This post argues that the management of religion is not unique to India. Across India, Germany, and the United States, courts engage in the practice that Datar identifies, through a process we might call judicial calibration: thickening dominant religion by fusing it with public institutions and civic norms, while thinning minority religions by privatizing, exoticizing, or securitizing them. This process reflects a broader structural dynamic at play in liberal democracies—what Professors Schragger, Schwartzman, and Tebbe call structural preferentialism: the idea that legal institutions, while formally committed to neutrality, systematically reproduce the cultural and institutional dominance of majority religion through background rules and discretionary governance. At the same time, in settings like the United States, this preferentialism is reinforced through what I have elsewhere called “private disestablishment”, a process through which religious institutions gain access to public functions and funding while remaining insulated from public duties. In this post, I argue that judicial calibration of religion happens along three axes: visibility, institutionality, and perceived risk. Across India, Germany, and the United States, judicial decisions in these domains reveal not simply unevenness but a patterned logic of majoritarian stabilization.
I. Visibility: Who Gets to Be Publicly Religious?
Courts shape the visibility of religion in public space. This means that the law mediates not just whether religion can appear, but whose religion is allowed to appear without legal friction. Visibility in this context is not only about presence, but about legibility: what kinds of religious expression are intelligible as civic, cultural, or benign, and what kinds are flagged as excessive, confrontational, or political.
In the United States, Christianity, across its many denominations, often benefits from what the United States Supreme Court has called “historical practice.” Public displays such as crosses on state property, legislative prayer, or school coaches praying on football fields have been upheld under the logic of tradition rather than sectarianism: for example, Town of Greece framed Christian prayer at town meetings as civic heritage; American Legion recast a 40-foot cross as a secular war memorial; and Kennedy treated a coach’s public prayer at school events as protected personal expression. Christian visibility is seen as ambient. It feels so familiar that it fades into the background. By contrast, when religious minorities seek similar visibility—Muslim students requesting prayer space, Sikh men wearing turbans, Native groups seeking protection of sacred land—their claims often meet judicial skepticism. Their visibility is framed not as benign tradition but as an exception requiring regulation, often subordinated to public order, zoning laws, or institutional neutrality.
Germany follows a similar script, despite operating under a formal model of cooperation between church and state. Christian symbols like crucifixes in classrooms have historically been treated as reflections of cultural heritage and thus allowed to remain. Islamic visibility, by contrast, has faced legal and political friction. In the Kopftuch decisions, Kopftuch I (2003) and Kopftuch II (2015), the courts acknowledged the right to religious expression but permitted restrictions on headscarves where state neutrality or school peace might be compromised. While not explicitly labeling veiling as ideological, the rulings enabled discretionary bans that disproportionately targeted Muslim women. As a result, Islamic expression is often cast as more politically charged or socially disruptive than Christian symbolism.
In India, visibility is governed by an analogous idiom: national culture. Hindu religious expressions, such as temple construction, festivals, and processions, are often judicially accommodated and even facilitated. They are treated as part of the civilizational fabric of the country. Muslim and Christian visibility, on the other hand, frequently triggers concerns over conversion, public order, or communal tension. Wearing religious garb, holding public prayers, or engaging in proselytization often attracts legal regulation or police scrutiny. This asymmetry was starkly evident in the Karnataka hijab ban, where Muslim girls were barred from wearing headscarves in public classrooms. The Karnataka High Court upheld the ban, reasoning that the hijab was not essential to Islam and could be restricted to preserve institutional discipline. When the case reached the Supreme Court, the bench split 1–1, with one judge endorsing the High Court’s reasoning and the other finding the ban incompatible with constitutional guarantees of religious freedom and equality. The legal effect was to leave the High Court’s judgment intact, deferring resolution while signaling deep judicial ambivalence. Under the guise of preserving secularism, courts often render non-Hindu visibility into a public threat, while re-inscribing Hinduism into the background aesthetic of national life. The effect across all three jurisdictions is consistent: majority religion becomes ambient, its public expressions shielded by familiarity or heritage. In contrast, minority religions are hyper-visible, repeatedly subject to judicialization, regulation, and sometimes outright erasure.
II. Institutionality: Which Religions Are Trusted with Self-Governance?
A second axis of judicial calibration concerns institutionality, or how courts recognize or deny religious groups as legitimate partners in governance. This includes access to state funding, autonomy in education, marriage and family law, and the authority to regulate their internal affairs.
In the United States, Christian institutions, particularly evangelical schools and churches, have been granted expanding access to public resources and legal protections, especially under the Free Exercise Clause. In cases like Espinoza v. Montana Department of Revenue and Carson v. Makin, the Supreme Court has required American states to include religious schools in public funding schemes, effectively mainstreaming Christian institutions within publicly supported education. Religious hospitals, schools, and social service providers also benefit from broad religious exemption regimes. While these doctrinal developments are formally religion-neutral, they overwhelmingly benefit Christian institutions as the most established actors in these sectors. When Muslim or non-Christian groups seek institutional space in their mosques, schools, or chaplaincies, they often face regulatory pushback. Islamic institutions are frequently denied permits or subjected to heightened scrutiny under vague claims of security or integration. As the U.S. Department of Justice noted in its 2024 letter marking 20 years of the Religious Land Use and Institutionalized Persons Act, minority faiths continue to face unlawful zoning barriers. Over 155 investigations and nearly 30 lawsuits have targeted the discriminatory treatment of Muslim communities. The threshold for institutional trust remains higher for minority religions, especially Islam, which is often framed not as civic presence but as a potential threat.
Germany is formally more generous in integrating religion into public life. The Basic Law allows religious communities to obtain the status of Körperschaft des öffentlichen Rechts, which enables them to collect taxes, run schools, and provide social services. But in practice, this status is almost exclusively granted to Christian and Jewish communities. Muslim organizations have been denied this recognition on the grounds that they lack a hierarchical structure or pose integration concerns. Courts invoke administrative and bureaucratic criteria, such as transparency, accountability, or German language use, in order to deny parity. These criteria function as gatekeeping devices that exclude minority religions from public authority.
In India, institutionality is sharply illustrated by the new Waqf (Amendment) Act, 2025, which seeks to deepen the state’s control over Muslim religious endowments. Under the guise of transparency and efficiency, the legislation significantly empowers district collectors and central authorities to determine ownership of waqf properties, some of which lack formal documentation, including many centuries-old mosques and shrines, while mandating the inclusion of non-Muslims on Waqf Boards. Though the government frames the reforms as anti-corruption and administrative modernization, critics argue they erode the autonomy of Muslim institutions and threaten religious stewardship, effects underscored by violent protests in places like Murshidabad. This marks a clear judicial-political signal: whereas Hindu institutional authority retains deference under the banner of cultural heritage, Muslim religious institutionality is subjected to increased scrutiny, bureaucratic entanglement, and overt governance control. Across all three jurisdictions, courts thicken the institutional life of majority religion by affirming its civic maturity and public utility. They thin minority institutions by treating them as unstable, foreign, or politically suspect.
III. Perceived Risk: Which Religions Are Seen as Threats?
Finally, courts act as risk managers by evaluating which religious expressions pose threats to public order, constitutional identity, or national security. These assessments are rarely neutral, while also reflecting broader political narratives and cultural anxieties about which communities are governable and which are deemed dangerous.
In the U.S., the legal architecture of counterterrorism has deeply shaped how courts treat Muslim identity. Post-9/11 policies such as surveillance programs, travel bans, and material support prosecutions have received judicial endorsement or deference. Muslim practices are repeatedly framed as potential vectors of radicalization. Native American religious practices are likewise filtered through regulatory lenses: peyote use is criminalized, and the protection of sacred land is often denied. By contrast, white Christian nationalism, even when it explicitly seeks political dominance, rarely features in judicial discourse as a security threat.
Germany’s constitutional order, especially its emphasis on freiheitlich-demokratische Grundordnung (liberal democratic basic order), has enabled its institutions to treat Islam as a potential constitutional threat. Religious associations suspected of foreign influence or insufficient integration are denied legal status. Veiling, mosque funding, and halal slaughter are all viewed through a security-inflected lens. Christianity, in contrast, is seen as domesticated, even when it mobilizes politically.
In India, courts have often framed Muslim religious practices as sources of instability. Triple talaq, madrasa education, and religious conversions are all judicially regulated to maintain “public order” or “communal harmony.” Hindu nationalism, by contrast, is rarely treated as a systemic threat, despite its explicit links to political violence or calls for constitutional change. Here, the risk calculus is not only religious, but also majoritarian: some religions are perceived as threats to be neutralized, while others are seen as expressions of national identity to be protected. Across all three countries, risk is racialized and minoritized. Courts define “safe” religion as familiar, institutionalized, and native. “Risky” religion is volatile, foreign, and politicized.
Conclusion
Taken together, these dynamics of visibility, institutionality, and risk reveal that courts in liberal democracies are not neutral arbiters of religious freedom but active architects of religious order. Through judicial calibration, they sustain structural preferentialism for majoritarian religions, rendering them ambient, legitimate, and low-risk, while relegating minority faiths to the margins of legal and civic life.
Gaurav Mukherjee is a Visiting Assistant Professor of Law and the Stuart F. Smith Teaching Fellow at the University of Connecticut.
Editorial Note: This piece was edited by Saranya Ravindran and Thejalakshmi Anil. It was published by Abhishek Sanjay.