The Right to Difference, the Duty to Protect: Rethinking State Neutrality toward Religious Minorities in Indonesia

Abstract

State neutrality is frequently invoked as a foundational principle in regulating religious diversity, yet neutrality may become problematic when dominant social groups possess greater institutional and political power. This article reexamines the meaning of state neutrality in relation to religious minorities in Indonesia. The study asks whether the state can legitimately remain passive when minority communities experience discrimination, intimidation, or unequal access to religious freedom. Employing a normative constitutional approach, the research analyzes constitutional provisions, human rights principles, legislation, and selected judicial decisions concerning freedom of religion and minority protection. The article distinguishes between formal neutrality, which requires equal treatment regardless of religious identity, and substantive neutrality, which may require positive state intervention to correct unequal conditions. The analysis argues that a purely passive conception of neutrality can reproduce existing inequalities because majority practices may already shape institutional norms and public policy. Consequently, equal protection may require the state to take affirmative measures against discrimination while maintaining impartiality among competing religious doctrines. The study proposes a duty-to-protect framework grounded in equality, proportionality, and positive human rights obligations. It concludes that genuine neutrality should not be equated with governmental inaction. Rather, the state must ensure conditions under which minorities can exercise religious freedom on substantially equal terms. This approach reframes neutrality as an active constitutional commitment to pluralism rather than a justification for institutional passivity.