How does the law shape the category of (free) religion, and by which mechanisms does this shaping occur? Building on conversations started at the Centre for Religion, Conflict and Globalisation’s recent conference, ‘Reimagining Difference: Being, Thinking and Practicing Beyond Essentialism’, this collaborative Religion Factor and Religion: Going Public blog series explores law’s approach to – and creation of – religion and religious liberty. In this post, Lourdes Peroni examines the enforcement of unspoken normative borders by administrative bodies and lower courts.
Helge Årsheim importantly draws attention to the largely overlooked workings of the “machinery in between” that silently determines the borders of legal religion. I agree with him on the need for more scholarly attention to the bureaucratic apparatus that boringly – but crucially – determines “the shape and scope of religion.”
In my current research on migration and gender, I have been trying to draw international human rights law’s attention to the different kinds of borders that work domestically to limit migrant women’s enjoyment of human rights. What interests me is not so much the role of the most obvious borders: those sustained by immigration controls. Rather, I am more interested in the role of what Ratna Kapur calls “normative boundaries of belonging,” namely those drawn by dominant societal assumptions about sexuality, gender, family and culture that inform law’s responses to migrants’ claims. In essence, Kapur shows how these assumptions draw the boundaries between belonging and not belonging. To use one of her examples: those who do not conform to, say, “heterosexual, marital, monogamous, reproductive, and non-commercial” sexuality are more likely to be denied the rights and benefits associated with citizenship. One could add to the list many other categories, including religion, work and motherhood, to name just a few.
I have noticed that these normative boundaries oftentimes operate discreetly, even silently, and certainly diffusively across the kind of domestic decisions that tend to bore and escape attention: those of administrative bodies and lower courts. My research actually focuses on supranational courts’ decisions on migrant women’s human rights claims, more specifically, on the decisions of the European Court of Human Rights. However, what I am ultimately trying to find out is whether the European Court “sees” and challenges the normative borders quietly sustained precisely by the kind of domestic machinery Årsheim has in mind. Here is where I see an important overlap with his reflections. I have to admit that I get only “snapshots of bureaucratic attempts to pin down the essences” of, in my case, family, work and motherhood. Moreover, I get these snapshots through the “eyes” of a supranational court (which usually summarizes in its judgments the reasoning of all the bodies involved in the decision making domestically).
Importantly, these cases show that, sometimes, the “raw materials” domestic decision making relies on are not necessarily legal in nature. Let me give you a brief example taken from the European Court of Human Rights’ case law: Zhou v. Italy. Ms. Jiaoqin Zhou was a Chinese national living in Italy. In practice, she was the only caretaker of her child (she had separated from her partner). She worked full time and, apparently, had no family/friends to leave her child with while she was at work. Social services initially made day-care arrangements for her child but these arrangements ultimately failed. Ms. Zhou thus left the child with an elderly couple in the neighbourhood during her working hours. Social services disagreed with her choice and brought her situation to the attention of the prosecutor. The prosecutor, in turn, asked the Italian courts to open adoption proceedings. The child was ultimately placed for adoption. Domestic courts at all levels relied on an expert opinion stating that Ms. Zhou was incapable of taking care of her son, partly, because of her work (“elle n’avait pas le temps de s’occuper de l’enfant à cause de son travail”). The normative border drawn silently by the expert – and implicitly sustained quietly across the domestic instances – is the assumption that “good” mothers are expected to place childcare above work. Feminists like Susan B. Boyd have shown how women may be penalized in child custody assessments for failing to live up to normative motherhood. The European Court found in favour of Ms. Zhou and against Italy, but said no word about the borders of motherhood enforced silently against her.
Årsheim’s contribution gives me the occasion to reflect on how, as an international human rights law scholar, I can draw more attention to the ways in which boring bureaucratic decisions “do interpretative violence to the inherent complexity of ‘lived religion’” – and, of course, other aspects of lived identity. One way of increasing this attention is to use the louder voice of high-profile – and perhaps also of lesser known – cases of international human rights law. One can, for example, call supranational human rights courts’ attention to the normative borders of religion (and other categories) set by the inaudible workings of domestic bureaucracy. Though this approach may just offer poor glimpses of massive domestic bureaucratic machines, it may at least make the cracks of these machines more audible.
 Ratna Kapur, Makeshift Migrants and Law: Gender, Belonging, and Postcolonial Anxieties (Routledge 2010) 39-55.
 Ibid. 43 and 8.
 Susan B. Boyd, ‘Motherhood and Law: Constructing and Challenging Normativity’ in Vanessa E. Munro and Margaret Davies (eds) The Ashgate Research Companion to Feminist Legal Theory (Ashgate 2013).