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Models of Religious Freedom PDF Print E-mail

Lee Boothby
International Academy for Freedom of Religion and Belief

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998

First, I want to state that I fully understand that in the field of religious liberty we must consider and appreciate the cultural and religious heritage of a given nation. I also appreciate the political realities in the drafting of constitutions and laws that give birth to compromise. My purpose is not to be critical of any country’s model of religious liberty, but to observe the reality of the present situation. I will be discussing four different country models, as they relate to the subject of religious freedom. Of course, this overview will only provide a brief encapsulated explanation, and a very short description of the models from my own particular point of view.

First, the Greek model, which I refer to as the official state church model, which recognizes the Eastern Orthodox Church as the official religion of the Greek state. The Orthodox Church is given special legal status, and it provides certain exclusive benefits. Under the Greek Constitution, the Greek Orthodox Church is guaranteed the right of self-government, and is governed by a holy synod. However, all decisions made by persons entrusted by the state with the administration of the Greek Orthodox Church, other than those matters relating to doctrinal concerns, can be submitted to and canceled by the Council of State. Compared to the privileged status of the Orthodox Church, other religions are relegated to a disadvantaged status. Further, Article 13.2 of the Greek Constitution guarantees freedom of worship only to “known religions.” However, the constitution fails to set forth any definition for known religions, and that has proved particularly problematic.

Under Article 3.1 of the constitution, only a member of the Orthodox Church can be elected President of Greece. Article 13.2 of the constitution prohibits proselytization, which although not defined in the constitution, is defined in two rather old statutes as direct or indirect attempts to influence or alter the religious beliefs of others, in particular by fraudulent means, or with the promise of material gain or moral gains. Most religions engage in persuasion at some level, including promising the receipt of material or spiritual benefits. For example, the Bible teaches that the reward for striving to eliminate sin from one’s life is eternal life. The Bible also teaches that one who gives a faithful tithe will be abundantly rewarded. The focus on fraudulent means of religious activity is a more plausible means for limiting religious expression. Yet, problems exist for proving fraud when dealing with the highly subjective concerns as to spiritual benefits.

Next is the Austrian model, which I shall refer to as the official multireligion state church model. Under this model, churches are subject to an 1874 law, the Law of Recognition of Churches. Those 12 churches which were recognized under the law have certain specific rights, including the right to participate in the state-controlled religious taxation program, to engage in religious education, and import religious workers.

In December of last year, as you probably all know, the Austrian Parliament enacted an amendment to the Law of Church Recognition, which permits non-recognized religious groups to obtain status as a “confessional community.” Before they can do so, however, they must first demonstrate that they have a membership of at least 300 individuals, and submit documents for government determination as to whether, in the opinion of someone in the government, the group would violate public security, public order, health and morals, or the rights and freedoms of other citizens. Once recognized as a religious community, if all goes well during a 20-year observation period, the group may be granted the higher “recognized church” status, if it has achieved a certain increase in membership. Numerical requirements, such as those imposed by Austrian law, are problematic at best. Religious human rights are not dependent on the number of individuals within a religious group. Registration requirements may have as their major purpose the exclusion of many religious groups from the religious marketplace within a particular country.

The next model is the Spanish model, which I refer to as a multilevel pluralistic model. This model provides substantial religious freedom, but is divided into four levels, or classifications, of religious groups. These four levels afford varying non-equal degrees of protection, and enjoy different relations with the state. The 1978 Spanish constitution recognizes the following principles: the fundamental rights of ideological liberty, religious liberty and freedom of worship for both individuals and groups, equal treatment under the law with no discrimination on the basis of religion, non-establishment of any religious belief, and cooperative church-state relationship.

Under the Spanish Religious Freedom Law of 1980, individuals are free to practice any or no religious belief, to change religions, and to express religious beliefs openly. They also have the right of freedom of religious worship, the right to instruct and be instructed in religious teachings, and the right to engage in religious activity. These rights are subject to restrictions, including restrictions on any activity related to psychic and parapsychological phenomena, the spread of humanistic and spiritualistic values, or foreign religious values.

Not all religious groups are officially recognized, or treated, the same. As I have indicated, there are four basic levels. First, there is the Roman Catholic Church, which has a special relationship with the state. Then, there are three additional religious groups that each have separate agreements with the state. These are the evangelic, or Protestant group, the Jewish faith, and the Muslim faith. On the third level, other churches and religious communities, which do not have a special agreement with the state, but which are inscribed in the State Religious Entities Registry, have an official status. Finally, fourth, the remaining religious groups that lack legal status as religious organizations, because they have not satisfied all the requirements of the state to be considered a religious organization. These groups may qualify for legal status as private associations, but do not have the rights and benefits of religious organizations.

The fourth model is the Netherlands model, which I refer to as the full pluralistic model. In the Netherlands, churches are not even mentioned in the constitution, but they enjoy full and equal religious freedom. This is because it is generally accepted that religious groups and organizations, as well as individuals, are guaranteed certain fundamental rights, including the right to freely organize and structure themselves, obtain buildings suitable for worship, train, appoint or dismiss their clergy, and generally posses the capacity to operate freely in society. A very important aspect of the constitution, since 1953, is the provision that grants courts the right to review legislation for its compatibility with provisions of treaties, including Article 9 of the European Convention on Human Rights. Under the Netherlands code, all churches are legal entities, and there is no registration requirement. In fact, there are no formulated criteria for church status.

In my opinion, the Netherlands model most clearly reflects the model for religious freedom envisioned by the Council of Europe, as set forth in Article 9 of the European Convention of Human Rights. Both the Greek and Austrian models seem to violate the letter and spirit of Article 9 of the European Convention. Those nations, such as Russia, that have patterned their new legislation after the Greek and Austrian models, appear out of step with the standards set by the Council of Europe.

In conclusion, let me say that in the religious freedom arena, I would suggest certain principles, which I believe to be rather basic and essential for the full enjoyment of religious freedom.

First, the state should ensure full equality before the law of all religious organizations.

Second, all religious groups should be provided an equal opportunity to enter the religious marketplace, and to propagate their religious views, regardless of their size or age.

Third, the state should be prohibited from intruding into the internal affairs of religious organizations.

Fourth, the state should permit all religious organizations to fully function, without regard to national boundaries.

Fifth, discrimination based on an individual’s religious belief or membership should be prohibited.

Sixth, an individual should be permitted to manifest their religious beliefs in public, and in private.

Seventh, the individual should be unrestricted, and fully protected with respect to their right to believe or not to believe, and be equally free to change their religious belief.

Eighth, individuals should be permitted to worship, either individually or in community, with others.

Ninth, the varied religious beliefs and practices of all should be accommodated by the state, unless the state is able to demonstrate a legitimate state interest that cannot be otherwise served by actions less intrusive to religious belief and expression.