Hungarian National Assembly, Commission on Human Rights Minorities and Religion - Conference and Panel Discussion "Religion - Society - Legislation". Hungarian Houses of Parliament, 27 April 1999.

Freedom of Religion in Europe

Paper Read by Dr Massimo Introvigne

  1.  

I thank you for your kind invitation, both on behalf of myself and as managing director of CESNUR (Centre for Studies on New Religions). CESNUR is an international organisation head-quartered in Italy and devoted to the scholarly study of new religious movements and religious minorities in general. While, according to our by-laws, not only is CESNUR independent from any religion or Church, but we actively try to present our findings in value-free terms, we do recognise religious liberty as the ethical basis of our research. In the last few years, in a number of European countries religious minorities have been often perceived as a social problem. This is, of course, also a result of legitimate concerns arising from tragedies such as the suicides and homicides of the Order of the Solar Temple and instances of terrorism associated directly or indirectly with religion. In some countries, however, legitimate concerns degenerated into "moral panics", defined by sociologists as socially constructed social problems characterized by a reaction out of proportion to the actual threat [1]. It is within the frame of this situation that recent debate in the European Union (and elsewhere) on how to enforce and apply the general principle of religious liberty consecrated by international treaties and declarations should be understood. Normally, international provisions such as Section 9 of the European Convention on Human Rights (ECHR) establish the general principles of religious liberty but leave a great latitude to national states on how these principles should be translated into provisions of (domestic) law.

In fact, from a legal point of view, all European institutions recognise that there are in Europe, even within the borders of the European Union historical and cultural differences between Member States which make it impossible to propose a single European system as far as the relations between states and religions are concerned. There are, in fact, in Europe at least three different models, none of them per se incompatible with Section 9 ECHR:

  1. the model of established or national churches, be they one (Greece, Portugal, Denmark, Sweden, where however a different system will come into force in the year 2000) or two (Finland - Lutheran Church and Orthodox Church; United Kingdom - Church of England and Church of Scotland). This model guarantees certain privileges to the established or national churches. On the other hand, its contemporary evolution has led almost everywhere in Europe to some protection for religious minorities, through the application to them by analogy of some provisions originally established in favour of the national churches;
  2. the model of secularism, where the state "does not recognise any religion" (Article 2 of French Law of December 9, 1905) and allows religious organisations to incorporate under the general provisions of civil or corporate law (The Netherlands, France);
  3. the model of multiple recognition, where a number of different religions are recognised or registered by the state with several forms of agreements and provisions (Alsace-Moselle region in France, Italy, Belgium, Austria, Spain, Germany).[2]

3.

From a philosophical point of view (which is not identical to the legal one) Section 9 ECHR recognises that there are certain limits to religious liberty, and this is somewhat obvious. How these limits are determined and defined is the object of a number of controversies. In the United States we have seen in recent years a certain conflict between the majority of the Supreme Court and Congress about two conflicting approaches. The first advocates that religious liberty may be limited only by the "compelling interest" of society as a whole as interpreted by the state. Since public interests really "compelling" are believed not to be many, this is the more liberal approach to religious liberty. The opposite conservative approach asserts that religious liberty may be limited when it may conflict with "public order" [3]. This is generally defined as something much more broad than state’s "compelling interest". Today, it often becomes synonymous of the legal order or at least its general principles [4]. In the European Union the mere fact that constitutions and laws may refer to "public order" is not enough to conclude that a conservative approach has in fact been selected. The notion of "public order" is somewhat ambiguous and several different definitions coexist. However, a difference between a conservative and a liberal approach to the issue of the limits of religious liberty remains crucial. In the conservative model, religious liberty is limited by the laws, by the legal order as a whole, or by its general principles, and in some cases also by the values generally accepted by the society and embodied in some fundamental laws of the state, such as the constitutions. The liberal approach, more similar to the American theory of "compelling interest", would rather maintain that religious liberty may be limited only when it may conflict with fundamental human rights, or the essential values of the constitutional order (something different from any and all provisions included in a constitutional law, and certainly different from the legal order as a whole). In Italy, the fathers of the 1947/1948 Constitution, explicitly concerned that any reference to the "public order" as a limit to religious liberty may be constructed in a conservative way, decided not to mention "public order " at all in what became Section 19 of their text. As a consequence, Italian legal scholars have often concluded that "the coming into force of the Constitution automatically abrogated Section 1 of Law No. 1159 of 1929, mentioning public order as a pre-condition for the public recognition of a religious organisation" [5]. A new law entirely replacing Law No. 1159 is currently being discussed by the Commission of Constitutional Affairs of the Italian Parliament. The new draft does not include any reference to the public order. It is worth noting that even the new Catechism of Catholic Church, Section 2109, criticises the idea that "public order" may indeed be regarded as a limit for religious liberty, when "public order" is constructed in accordance to positivist or naturalist criteria [6].

4.

In each country, legal and philosophical models interact with each other. The possibilities are summarised (without taking into account many other possible variations) in the following table:

 
National churches
Secularism
Multiple recognition
Conservative
effective
active
closed
Liberal
nominal
passive
open

  1. the model of the national or established churches may lead, interpreted through the lenses of the conservative approach, to conclude that the state should actively promote the national religion. This is precisely what Greece has been accused of (and occasionally found guilty) in a number of cases decided by the European Court of Human Rights in Strasbourg. On the other hand, when the approach to the limits of religious liberty is liberal, such as in the United Kingdom, the existence of established churches is less likely to lead to discrimination against religious minorities.
  2. Secularism, in turn, may be merely passive (as in the Netherlands, where a long experience of tolerance exists); or active, according to the French idea of laïcité active. In the latter case, the basis is the conservative approach to the limits of religious liberty. Laïcité or secular humanism is openly promoted by the state in the name of a "freedom of conscience" that, historically, has often been regarded as in a possible conflict with freedom of religion. The state is historically suspicious of new religions, and even of alternative lifestyles (religious orders in the 19th century, new Catholic movements today) within the larger and older churches.
  3. Multiple recognition models may be either open to a large variety of possible groups, or closed. In the latter case, based on the conservative approach, recognition or registration may be granted to religions only if they are found to comply with the provisions of the Constitution (Germany) or with "public security, public order, health and moral", "democracy" and even the "psychological integrity" of the population (according to the very restrictive Section 5 of the new Federal Austrian Law of 1998). In these cases, differences between "good" and "bad" methods of proselitisations may also be proposed.

Contemporary, secular States may protect religious liberty through a variety of legal models. I do not believe that a single ideal legal model fit for any and all national situations, may really exist. The social and historical situation of religion is different in Italy and in the United Kingdom, and the religious pluralism of United States is unknown in Greece. The fact that France is one of the countries most often criticised today for its conservative approach to religious liberty may serve as evidence that secularism, per se, does not guarantee more freedom and less discrimination. The "wall of separation" model works very well where it is part of a national tradition, as in The Netherlands or in the United States, but I doubt that it would work equally well in Italy, Austria, or Greece. Multiple recognition instances have created a rather minority-friendly environment in countries such as Italy, and in the United Kingdom the existence of established churches has not prevented non-established churches from enjoying a religious freedom larger than in most other countries. My conclusion, here, is that the legal model a country finally selects is less important than the general philosophical approach to religious liberty. What I have called the liberal approach is more minority-friendly than the conservative approach, no matter what kind of legal model it interprets.

Those favouring the conservative approach to the limits of religious liberty today are often in trouble before the European Court of Human Rights, international conventions, and investigations of religious intolerance by international bodies such as the OSCE. They often answer that a conservative approach is necessary because some religious minorities are indeed dangerous. "Cults" or "sects" are often mentioned, together with different kinds of "fundamentalism" (primarily Islamic, but occasionally also Hindu and Christian). A first objection to this approach should be that many popular ideas about "sects" and "cults" are almost unanimously rejected as simply false by the international community of scholars of new religious movements. It is unfortunate that a well-organised anti-cult lobby has the ear of some European governments, which actively promote its biased ideology. Eileen Barker will address the issue of new religious movements in Europe today, and I would like to make reference to my statement "Misinformation, Religious Minorities and Religious Pluralism" at the Supplementary Meeting on Freedom of Religion held by OSCE in Vienna on March 22, 1999, where I was very much honoured to be among the experts who presented the opening papers before the discussion. A copy of this paper is enclosed with the written text of my statement today. I hope that Eileen Barker, with her unique competence, will persuade you that, although some real problems do exist, many groups are simply discriminated because they look strange, exotic, or bizarre. I would like to comment here on a larger issue. The late sociologist Roy Wallis introduced a well-known distinction between world-affirming and world-rejecting religious movements [7]. By way of analogy, we may distinguish religious organisations in three main groups. The first is society-affirming, and its values are mostly those of the social majority in a given country. For new groups, it may take time for society to recognise that such is the case, but no major problems should normally be expected. The second category includes religious organisations whose values are mostly alternative (and at times radically alternative) to those of the social mainline. These groups are not systematically engaged in any criminal activity (at least if the notion of criminal activity is confined to common crimes; occasionally, these groups are suspected of crimes of their own, and law are criticised for not yet including these allegedly "new" crimes). The third category represents the rather extreme (and fortunately rare) case of criminal religious movements, whose very existence is centred on the perpetration of common crimes ranging from rape to terrorism, from child abuse to homicide and organised mass suicide. The very idea of criminal religious movements may sound absurd to a public opinion largely persuaded that religion is necessary benign. Unfortunately, such is not necessarily the case. Very few historians of religion would doubt that human sacrifice may be for the perpetrators a deep religious experience, and some groups practising forms of holy terrorism really believe that they are faithfully serving God. At any rate, definitions of religion vary, and labelling criminal religious movements as "pseudo-religious" seems to be a mere word game. It is at any rate obvious that such groups should not be tolerated, should be closely monitored, and repressed when they act according to their unhealthy principles (in this case they are repressed as criminal, not as religious organisations). The same, of course, should apply to individual criminal behaviour within non-criminal religious organisations. Pedophile priests or pastors cannot be protected by principles of religious liberty. At least theoretically, however, the first and the third category (society-affirming and criminal movements) are less difficult to be dealt with. The main problems arise when society is faced with society-rejecting religious minorities and groups which, without being criminal, live according to principles and norms very much different from those prevailing in the larger society. This is the situation of a number of new religious movements, as well as of a number of organisations within the Islamic tradition (and, occasionally, within the Hindu or other Eastern traditions, while Buddhism appears more society-affirming in most of its European forms).

It is precisely society-rejecting organisations that test religious liberty. It is easy enough to protect popular religions. They are already protected by their own popularity. Unpopular religions (not to be confused, as mentioned earlier, with criminal religious movements) need the strong protection of the law. Ultimately, it is not very important what legal model is selected, and my knowledge of Hungary is so limited that I do not dare make any recommendation on this point. Secularism with no forms or recognition or registration for any religion is an acceptable model for some countries, but it does not automatically guarantee religious liberty. The latter is compatible with multiple recognition systems (provided that criteria for recognition or registration are open, and not limited to society-affirming religions). As proved by the experience of a number of countries, it may even be wise to include in a law on religion (or in the Constitution itself) a reference to the unique contribution one or more churches have historically provided to the national identity, if this is coupled with an equally strong reminder that a free society cannot tolerate any form of discrimination against smaller or more recent religious organisations. What is more important is to adopt a clear stand in favour of religious liberty, and a not too restrictive definition of its corresponding limits. Personally, I believe that only what I have called the liberal approach to the questions of the limits of religious liberty may really protect the less popular minorities within the contexts of present-day European religious pluralism. Laws should clearly state that religious liberty may be limited only for the sake of the basic human rights. Religious liberty is of a higher value than most laws currently in the books of every country. While the conservative approach claims that religious liberty is limited by almost any existing law, we should claim that, when laws have the effect of limiting religious liberty, they should be amended. Yes, there should be provisions to prevent criminal religious movements (rare, but unfortunately existing) from abusing religious liberty. But by no means should we restrict religious liberty to society-affirming organisations. Historically, religions whose values were radically different from the larger society have often played a positive and important role. Be it as it may be, the main test of religious liberty in your country, as in any country, will be how well your laws, old or new, will be able to protect small, poor, society-rejecting or unpopular religious minorities.

Notes

1. On moral panics see Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis, New York and Oxford: Oxford University Press, 1996; Id., Moral Panic: Changing Concepts of the Child Molester in Modern America, New Haven and London: Yale University Press, 1998. On moral panics and religious minorities see my “Chi ha paura delle minoranze religiose? La costruzione sociale di un panico morale”, La Critica Sociologica, 127 (August-November 1998): 1-12 (English translation: “Who is Afraid of Religious Minorities? The Social Construction of a Moral Panic” available from CESNUR’s web site http://www.cesnur.org/testi/panici98.htm).

2. That Germany applies in fact the multiple recognition model has been recently recognised by a number of legal scholars: see Francis Messner, "La législation cultuelle des pays de l’Union Européenne face aux groupes sectaires", in Françoise Champion - Martine Cohen, Sectes et démocratie, Paris: Seuil, 1999, 331-358.

3. The labels "liberal" and "conservative" have no political meaning in this context. In fact the "liberal" approach to the limits of religious liberty is often advocated by politically conservative scholars and activists, and vice versa.

4. On the American discussion see my “New Religious Movements and the Law: A Comparison between Two Different Legal Systems - The United States and Italy” in Eileen Barker - Margit Warburg, New Religious and New Religiosity, Aarhus - Oxford: Aarhus University Press, 1998, 276-291.

5. See on this point Alessandro Ferrari, “Le minoranze confessionali in Italia”, paper read at the Conference “La Christian Science: una minoranza religiosa in Italia” organised by CESNUR and by the University of Turin, Turin, November 10, 1997 (page 5 of the typescript).

6. Catechism of the Catholic Church, Section 2109.

7. Roy Wallis, The Elementary Forms of the New Religious Life, London: Routledge & Kegan Paul, 1984. He also introduced a somewhat minor category of “world-accomodating” movements.

 


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