The Protection of Holy Places

Abstract

Holy places are protected by the law, but the rationale for this protection has received little attention. The purpose of our paper is to fill this gap. The natural explanation for this protection lies in terms of religious freedom. However, since this freedom is violated only when believers are required to actively act against the dictates of their religion, this notion is of no help in the present context. Even when holy places serve as sites for worship, there is usually no religious duty to carry out worship there. Another explanation would base the protection of holy places on the prohibition against hurting religious feelings. But while this looks promising when the desecration is intentional, it is less so when the desecration or the hurt are incidental. Finally, the protection of holy places is sometimes understood as a way of preserving “cultural heritage.” But many holy sites do not fall under this definition and still enjoy protection. Our tentative conclusion is that holy places do not enjoy automatic protection just because they are perceived as such by some religious group. This protection must be earned by arguments that would establish the (“objective”) holiness of the relevant site within some religious tradition, explain the exact nature of the harm or offense that is the matter of concern, and demonstrate why the believers’ interests regarding the perceived holy place override those of the public.