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Constitutional Guarantees and Practical Realities PDF Print E-mail

Bruce Casino
International Coalition for Religious Freedom

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998

What I want to discuss briefly is the general subject of constitutions and practical realities in the field of religious freedom. I want to emphasize in particular two areas that I feel are of particular concern when we look at the discrepancy between constitutional provisions and the realities in many countries. The first concern has to do with defining religion, the second with the notion of public order. Most of the constitutions of the countries of the world have a provision that requires religious freedom. In a sense, those constitutions now constitute a sort of international norm with respect to human rights and, in particular, with respect to religious freedom.

We have, for instance, the Republic of China. We heard about all the difficulties facing religious freedom there. But Article 36 of the People’s Republic of China Constitution says, “Citizens of the People’s Republic of China enjoy freedom of religious belief. The State protects normal religious activities.”

In Cuba, Article 54 of their constitution says it “recognizes and guarantees freedom of conscience and the right of everyone to profess any belief, and to practice within the framework of respect for the law, the belief of his preference.” In Germany we have Article 4: “Freedom of faith and conscience and freedom of creed, religious or ideological shall be inviolable. The undisturbed practice of religion is guaranteed.”

Greece has a provision that is perhaps closer to the real view held in many countries of the world. Article 13 says, “all known religions shall be free and their rights of worship shall be performed unhindered, and under the protection of law. The practice of the right of worship is not allowed to offend public order or moral principles; proselytization is prohibited.” In Japan, Article 20 states that “freedom of religion is guaranteed to all.” And so it goes.

From country to country there are these broad declarations of the right of religious freedom in the constitutions. And, of course, in international human rights documents as well, there are requirements of religious freedom. So what our battle is about, it would seem, is promoting the reality of religious freedom as opposed to amending constitutions and trying to encapsulate the general notion of religious freedom that is already very widely accepted.

I want to discuss a couple of problems that arise with respect to the general notion of religious freedom and challenges to religious freedom in countries even with the very strongest provisions. One has to do with the notion of public order. International law recognizes as an exception to the general requirements of religious freedom that religious practice not violate public order. UN documents on the subject of religious freedom say the same. Yet it is this very principle that has been used by many states to severely and dramatically limit the religious freedom of persons in those states.

For instance, in Germany, where I am representing Rev. and Mrs. Moon with respect to the German government’s decision that they not be allowed entry to Germany, the primary rationale for that decision is that this will constitute a disturbance to the public order. The general notion of “disturbing the public order” has been used in many different countries in various forms as an excuse—as a basis—for limiting the religious freedom that would otherwise exist.

The problem with this notion of public order is that, while it certainly can be valid, the way it is being used seems invalid. It does not seem to comport with another important international norm, which is the norm of proportionality. There certainly are some situations in which public order is a valid concern. For instance, in Israel, when Muslims and Jews both wish to worship at the same sacred site, it may be necessary to regulate or limit the times of access to that site to preserve the public order, to prevent riots or whatever.

For the state to say, however, that proselytizing efforts disturb the public order and therefore are illegal; or to say that having a particular worship site in a given city may outrage the inhabitants and, therefore, will not be allowed because it will violate public order is very problematic in terms of human rights law. The proper norm that would seem to have to be applied, and which is not being applied, is the notion of proportionality.

There has to be a balancing, if you will, of the state’s interest in maintaining the public order with the interest of the religious community in question. That balance does not appear to be accomplished in many cases. As a result, some countries construe any suggestion of interference with the peace of mind of persons as a sufficient basis for limiting the expression of religious freedom.

The problem, of course, almost always arises with respect to smaller religious groups, which are pejoratively labeled cults or sects. Tom Wolfe, I think, defined a sect as “a religion without political power.” That perhaps doesn’t comport with the general sociological definition, yet it certainly seems to be the operative definition of many western and eastern European nations.

The other problem, besides the issue of public order, is the definition of religion. How does one define religion if one is to extend the benefits of religious freedom. The approaches vary. In many nations, the notion of a deity is very important in defining a particular religion, sect, or organization as being religious.

In some countries, the organization, it would seem, has to have been established for many years or have a certain number of adherents for it to be considered legitimately religious. In some countries, organizations are considered to be political if they have any political ramifications and so they are considered political as opposed to exclusively religious. In other countries, the notion that a religion operates a business activity, even a publishing activity, may throw them into the realm of being a business rather than a religion.

The United States has had considerable experience with the sort of plurality of religion that seems to have become the state in Europe only recently. One has the impression that Europe had a fairly discrete number of religious entities for many years. Whereas, in the United States, essentially founded by a group that was considered an objectionable cult and sect in Europe, we have had a chance to grapple with this issue over many years. I want to give you the benefit of some of the teachings from the Supreme Court and other case law in the United States.

It is interesting to note that in the 1890s the Supreme Court defined religion in basic theistic terms. They said, “the term religion has reference to one’s view of his relations to his Creator and to the obligations they impose of reverence for His being and character and of obedience to his Will.” That view is common in Europe. I think in France there is a suggestion in some of the case law that a reference to the Creator is important.

That was the view until the 1940s, when in United States vs. Ballard Justice Douglas, writing for the majority the Court, embraced a much broader definition:

“Freedom of religious belief is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter, which are rank heresy to followers of orthodox states. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences, which are as real as life to some, may be incomprehensible to others, yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.”

This is a very broad definition and one that is not generally accepted in European courts. In the Scientology case in Italy recently, the court seemed to accept a much broader definition of religion than seems to be accepted in other nations.

In 1961, in Tercosco vs. Watkins, the Supreme Court elaborated its interpretation of a statute that provided for freedom from the draft for conscientious objectors who based their claim on religious belief. The First Amendment, according to the Court, precluded the government from aiding “those religions based on a belief in the existence of God as against those religions founded on different beliefs.” So here they break the theistic mold which still is very prevalent in Europe and elsewhere. The Court noted that “among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, ethical culture, secular humanism and others.”

The Court has also determined that whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by orthodox belief in God is a key question. Whether the belief is sincerely held is a legitimate inquiry under American law because, of course, there are all kinds of people engaged in shams.

There is a case I read about not too long ago concerning a so-called church in California in which the worshipers, primarily men, would enter little cubicles and insert their donation. A screen would rise and they would then see a naked female body. In other words, it was a sort of peep show, but they were trying to have their contributions deducted. There were various items of religious literature depicting the naked female body on display. This was their supposed religion. This example illustrates that there is a role for inquiry into the sincerity of religious belief. What the Court said in Tercosco is that as long as the belief occupies a position parallel to that occupied by the majority religion in the lives of its believers it should be considered religious and subject to the same protections.

The way the courts have attempted to put this into practice have been varied. As I try to bring this to a conclusion, I would like to mention a couple of cases that have discussed this. They say, for instance:

Neither this court, nor any branch of this government will consider the merits or fallacies of religion. Nor will the court compare the beliefs, dogmas, practices of a new organized religion with those of an older, more established religion. Nor will the court praise or condemn a religion, however excellent or fanatical or preposterous it may seem. Were the court to do so it would impinge upon the guarantee of the First Amendment.

This is the kind of broad application of the Supreme Court’s teachings that, it would seem, is lacking in the European context. That is, given the explosion of religious pluralism that has occurred in western and eastern Europe and in Russia, religion requires a much broader definition. I suggest that those nations should move in the direction of the model provided by the United States. There is much more to say on this subject, obviously, but we want to move the program along and listen to some concrete examples of the dichotomy between the constitutional provisions and the practices of some of the countries we are examining.