CESNUR - Centro Studi sulle Nuove Religioni diretto da Massimo Introvigne

CESNUR 2006 International Conference
July 13-16, 2006
San Diego State University, San Diego, California
Religion, Globalization, and Conflict: International Perspectives

The Autonomy of Religious Communities in the USA and Europe: a Human Rights Perspective

by Alessandro AMICARELLI (Doctoral Candidate, La Sapienza University, Rome)

A paper presented at the CESNUR 2006 International Conference. Please do not reproduce or quote without the consent of the author

When discussing the autonomy of religious communities it can mean different things: reference may be made to the separation of the denominations from states, reference may be made to the organisational autonomy of communities, their right to freely organise activities of worship. One may also refer to the right which communities are recognised with in realising a series of activities, the necessary lifeblood of the group, such as the ordination of ministers and the execution of proselytism activities.

Throughout history problems have been set on the subject of relations between states and religious denominations, and such problems have intensified each time one of the parties has tried to “invade” the other’s domain.

Nowadays it no longer seems possible to talk about the invasion of a state’s sphere of authority by religions, even though some people often talk about interference, whereas the opposite increasingly happens to a greater or lesser extent.

These cases have happened and do occur regularly in both western and eastern Europe.

It often happens that states operate so that the rights of religious communities and their followers are limited for the most disparate of reasons.

France, as is known, has gone so far as creating a list of “undesirable” groups and religions. In the Russian Federation the Congregation of Jehovah’s Witnesses are encountering problems. In the United States the Mormons, Jehovah’s Witnesses and members of The Family and of the Church of Scientology have all come up against problems in the past, to name just a few.

However the United States pays considerable attention to such a religious phenomenon and the authorities have always operated so that all followers are respected, with all communities being free to carry out their activities in total freedom and autonomy. State interference in the affairs of religious communities is kept to an absolute minimum in a democratic society.

Instead European countries have shown themselves as being unable to know how to fully maintain neutrality in religious matters, often intervening in the internal affairs of religions on account of various pretexts: e.g. security, the observance of democratic rules, the equilibrium of interests…

going so far as wanting to decide, in this regard, the appointment of the heads of the Congregation, and the missionary activities of the communities as well as many other matters.

The differences between European countries and the United States are absolutely clear. Such diversities are due to historical and cultural differences.

In our opinion human rights, in representing the only instrument and key to interpreting such differences, are the only means which really allow the various religions to be treated equally.

Many minorities and religious groups exist in the United States and hence one cannot talk about the existence of a majority. However, in Europe although many groups and communities exist there is a predominance of Christianity, and Catholicism in particular.

This inevitably implies that it is more difficult, than in the United States, to deal with the question of relations between states and religious denominations.

Nevertheless, as said previously, interpreting the phenomenon in light of human rights makes the task much less complicated.

International and regional instruments of human rights’ protection provide for the right to religious freedom (art. 18 Universal Declaration, art. 18 International Convenant, art. 10 American Convention, art. 9 European Convention, etc.).

Recognition of such a right to religious freedom is, first of all, given to individuals as much in the private sphere - forum internum - as in the public sphere -forum externum - but also has an inevitable dimension and general application, since every believer is naturally inclined to share his/her religious creed with other individuals. This common aspect of religious freedom interests the legal discipline of religious communities. As mentioned, such a discipline differs from country to country also within the same Europe that includes countries which are completely (?) separationist like France, other states that utilize concordats and agreements such as Italy, other countries in which there is a religion established by law such as the United Kingdom, or a dominating religion like in Greece or a national church like in Denmark. Certainly a perfect system does not exist for the regulation of relations between states and religious denominations; what matters is the actual content of the current system in each country and the extent to which it guarantees equality and religious freedom. It is clear that a religious community would have no way of existing if it were not allowed to organize itself freely and, that is, if followers were not allowed to pray, carry out worship and activities of proselytism as typical activities of every religion. In the same way the existence itself of a community would not be ensured if each group were not allowed to freely choose its local heads and ministers just like if, as happens in certain cases, the community were barred from receiving financial support for the group’s development. That said it would be necessary to add that these rights would be applied to the religious communities in the same way in which they are applied to other groups and associations which are not necessarily religious in nature.

The parliamentary assembly of the Council of Europe has intervened in this field on two occasions by issuing recommendations. In particular, in the Recommendation 1178 of 1992, relating to sects and new religious movements, the assembly had “estimé inopportun the recours à une législation majeure pour les sectes au motif qu’elle risquerait de porter atteinte à the liberté de conscience et de religion garantie par  l’article 9 de the CEDH, ainsi qu’aux religions traditionin theles” and again, the Recommendation 1412 of 1999, invited, besides, the governments of the member States:  “[…] 10.iii à utiliser les procédures normales du droit pénal et civil contre les pratiques illégales menées au nom de groupes à caractère religieux, ésotérique ou spirituel”.

However the temptation for states to intervene in regulating the internal affairs of religious communities has been demonstrated often.

Thus, recently, Rosmarie Zapfl-Helbling of the commission for equal opportunities of the parliamentary assembly of the Council of Europe in her report no. 10670 of 22 September 2005 asked for religions to conform to the principles of equality and to respect equal opportunities between men and women in wishing, for example, that Catholic authorities appoint women ministers.

It is certainly important that authorities operate so that equal rights are established, but to claim to regulate the existence and creed of religious denominations is another matter.

The European Parliament has thus recalled in the resolution of 13 April 2006 that freedom of expression should always be exercised within the limits allowed by law and should co-exist with the responsibility and respect of human rights, opinions and religious beliefs, regardless of whether they concern Islam, Christianity, Judaism or any other religion.

So also the parliamentary assembly of the Council of Europe, just a few days ago, in resolution no. 1510 of 28 June 2006 asserted that:

“The Assembly encourages religious communities in Europe to discuss freedom of expression and respect for religious beliefs within their own community and to pursue a dialogue with other religious communities in order to develop a common understanding and a code of conduct for religious tolerance which is necessary in a democratic society”.

Unfortunately this does not always happen and so certain states subordinate the recognition of rights to religious communities to the requirement of registration or re-registration. Such registration can be carried out however, only by communities that count a certain number of followers in state territory and/or which have been present in that territory for a certain number of years. But this only impedes minority religions from existing in a certain country, which means the violation of general religious freedom and of individuals who are deprived of the right to express their own religion.

Wishing to discuss some practical cases, we can confront the subject of the autonomy of religious communities starting with the case of the Universal Life Church operating in the United States.

The Universal Life Church demonstrates perfectly how the question of religions is tackled in the USA: each is free to establish and run their own church and their own communities in total autonomy. Usually the problems that religious communities mostly come up against are tied to the question of the payment of taxes to the IRS.

The Universal Life Church, founded in 1959 by Reverend Kirby J. Hensley, is a religious organization that offers anyone immediate ordination as a ULC minister free of charge. The organization states that anyone can become a minister immediately, without having to go through the pre-ordination process required by other religious faiths. Hensley after five years of studying various religions, according to his own statements, decided to create a new church concluding that the proper religion may differ for each person and that everyone is entitled to choose his or her own religion. Actually the ordination in the Universal Life Church is completelly free and the ministers have only the duty to express their support for the church's mission to preserve and protect religious freedom. In 2002 the Church sued the state of Utah regarding the legality of its Internet-based ordination process. Utah had passed a law banning ministers ordained by mail or over the Internet from officiating legal marriage. The court ruled in favor of the Church, declaring the statute unconstitutional and permanently barring the state from enforcing it, noting among other things that there is essentially no difference between an Internet-based application or mail-order application and one sent by courier, fax machine, phone, or done in person (Universal Life Church vs. the State of Utah, 2002 - Internet-based minister ordination declared valid; Blackwell vs. Magee (Mississippi) - ULC authorized to solemnize marriage).

In Europe the situation is clearly different to what we have witnessed in the USA. We will briefly analyse two cases of interference in the internal affairs of religious communities by states in Moldova and Bulgaria, analysing the same in light of human rights according to that decided by the European Court in Strasbourg.

In the case of Metropolitan Church of Bessarabia and Others v. Moldova the applicants alleged in particular that the Moldovan authorities’ refusal to recognise – as a schismatic church - the Metropolitan Church of Bessarabia infringed their freedom of religion and association and that the applicant Church was the victim of discrimination on the ground of religion. On 14 September 1992 the applicant natural persons joined together to form the applicant Church – the Metropolitan Church of Bessarabia – a local, autonomous Orthodox Church. According to its articles of association, it took the place, from the canon-law point of view, of the Metropolitan Church of Bessarabia which had existed until 1944. In December 1992 it was attached to the patriarchate of Bucharest.  The Metropolitan Church of Bessarabia adopted articles of association which determined, among other matters, the composition and administration of its organs, the training, recruitment and disciplinary supervision of its clergy, the ecclesiastical hierarchy and rules concerning its assets. The applicants alleged that the Moldovan authorities’ refusal to recognise the Metropolitan Church of Bessarabia infringed their freedom of religion, since only religions recognised by the government could be practised in Moldova. They asserted in particular that their freedom to manifest their religion in community with others was frustrated by the fact that they were prohibited from gathering together for religious purposes and by the complete absence of judicial protection of the applicant Church’s assets. They relied on Article 9 of the Convention, which provides: “1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. The Government accepted that the right to freedom of religion included the freedom to manifest one’s religion through worship and observance, but considered that in the present case the refusal to recognise the applicant Church did not amount to a prohibition of its activities or those of its members. The members of the applicant Church retained their freedom of religion, both as regards their freedom of conscience and as regards the freedom to manifest their beliefs through worship and practice. The applicants asserted that, according to Moldovan law, only religions recognised by the State may be practised and that refusing to recognise the applicant Church therefore amounted to forbidding it to operate, both as a liturgical body and as an association. The applicants who are natural persons may not express their beliefs through worship, since only a denomination recognised by the State can enjoy legal protection. The Court notes that, according to the Religious Denominations Act, only religions recognised by government decision may be practised. In the present case the Court observes that, not being recognised, the applicant Church cannot operate. In particular, its priests may not conduct divine service, its members may not meet to practise their religion and, not having legal personality, it is not entitled to judicial protection of its assets. The Court therefore considers that the government’s refusal to recognise the applicant Church, upheld by the Supreme Court of Justice’s decision of 9 December 1997, constituted interference with the right of the applicant Church and the other applicants to freedom of religion, as guaranteed by Article 9 § 1 of the Convention.

In the case of Hasan and Chaush vs. Turkey the first applicant was Chief Mufti of Bulgarian Muslims; the second was a teacher at the Islamic Institute and submits that he worked on a part-time basis as secretary to the Chief Mufti's Office. A dispute between two rival factions of the Muslim community arose in the late 1980's and in 1992 the Directorate of Religious Denominations declared the election of G. in 1988 null and void. At a national conference organised by the interim leadership, the first applicant was elected as Chief Mufti; the new leadership was registered by the Directorate of Religious Denominations. However, in 1994 G.'s supporters held a national conference and elected an alternative leadership, which applied for registration as the legitimate leadership of Bulgaria's Muslims. Following a change of government, the Deputy Prime Minister issued a decree apparently approving the statute adopted at this alternative conference and the Directorate of Religious Denominations registered the leadership including G. No reasons were given and the decision was not notified to the first applicant. The new leadership forcibly ejected the first applicant and his staff from the Chief Mufti's Office and took over all documents and assets; the second applicant maintains that he was de facto dismissed. The prosecution authorities refused to take any action. The first applicant's appeal to the Supreme Court, on behalf of the Chief Mufti's Office, was dismissed on the basis that the Council of Ministers (under which the Directorate of Religious Denominations comes) enjoyed full discretion with regard to registration of religious groups. The first applicant was re-elected Chief Mufti at a national conference organised by him in 1995, but no reply was given to his requests for registration. He appealed to the Supreme Court, which held that the tacit refusal was unlawful. However, the Deputy Prime Minister refused to register the applicant because a leadership of the Muslims had already been registered. The applicant again appealed to the Supreme Court, which quashed the refusal, but the Council of Ministers continued to refuse registration. Eventually a joint conference was held and a new leadership elected and registered. On the basis of art. 9 of the European Convention the personality of ministers of religion is undoubtedly of importance to every member of a religious community and participation in the life of the community is thus a manifestation of one's religion. Where organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 – the believer's freedom of religion encompasses the expectation that the community will be allowed to function free from arbitrary State intervention; indeed, the autonomous existence of religious communities is indispensable for pluralism and thus at the very heart of the protection which Article 9 affords. Since the applicants are active members of their religious community and the events complained of concerned their freedom of religion, Article 9 is applicable. A failure of the authorities to remain neutral in the exercise of their powers in the field of registration of religious communities must lead to the conclusion that the State interfered with the believers' freedom to manifest their religion. Except in very exceptional cases, the right to freedom of religion excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express them are legitimate. State action favouring one leader of a divided religious community or to force the community to come under a single leadership against its wishes would likewise constitute an interference. In this case, the changes in the leadership of the Muslim community were announced without any reasons being given and the effect was to favour one faction, granting it the status of the single officially recognised leadership while depriving the first applicant of the possibility of continuing to represent at least part of the community. There was therefore an interference with the applicants' right to freedom of religion. However, since the relevant law does not provide for any substantive criteria for registration and there are no procedural safeguards against arbitrary exercise of discretion, the interference was not prescribed by law. Furthermore, the repeated refusal of the Council of Ministers to comply with the Supreme Court's judgments was a clearly unlawful act of particular gravity. The European Court of Human Rights concluded for the violation of art. 9 ECHR.

Then we can conclude that in the Usa a separation of the denominations from states really exists and that the same separation does not exist in each European State although the European institutions require such an adjustment.