Bruce J. Casino
International Coalition for Religious Freedom
delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998
I want to talk with you today about the recent report of the United Nations Rapporteur on Religious Freedom of the Human Rights Commission on his visit to Germany, which I think is instructive with respect to many nations in Europe. I want to talk about the issues that were raised, and some of his recommendations.
This is the second report on a European nation. The first report was on Greece a few years ago. That report points to many of the problems that arise in a system such as that in Greece, in which you have several layers or a hierarchy of religions. At the top, you have the Greek Orthodox Church. Then you have a category of known churches protected by the constitution. Then you have the “unknown” churches, which include the Jehovah’s Witnesses. I believe that many Orthodox nations, including Russia and several Eastern European nations, are attempting to impose the same pattern used in the Greek context. Therefore, I would draw your attention to the criticisms that were leveled in the UN Rapporteur’s report on Greece.
Today, I am going to focus on the situation in Germany, our host nation. The Rapporteur’s report is dated December 1997. It was issued in mid-March of 1998, and contains 106 paragraphs. It discusses some of the following problems. With respect to the Muslim community in Germany, there is apparently no recognition of the Muslim religion as a legal person, as the Lutheran and Roman Catholic and Jewish communities are recognized. There has been public opposition to the building of mosques, calls to prayer, slaughter of animals, the wearing of headscarves, and various other Muslim customs or religious practices. The Mormon and Bahai communities both describe a climate of mistrust of all religious minorities in Germany. The Jehovah’s Witnesses were denied status as a legal person, and complained of the climate of intolerance created by the Bundestadt Commission on Sects and so-called Psycho Groups.
I understand, by the way, that the above mentioned commission has just today issued their final report. Happily, it is not as negative as many people had thought it might be. For instance, according to a news article, the report states that the German government and the commission will no longer use the term “sect” when referring to new religious movements. I think that this is a very positive development. The report also apparently indicates that there is no real problem of minority religions in Germany, concluding that they are natural phenomena of the social and religious dynamics within the German community. We need to look more closely at the details of the report, but it at least seems to be moving in a better direction than many had hoped for.
Nonetheless, the Jehovah’s Witnesses, and others, have expressed concern over a climate of intolerance. Just the fact that a commission, made up exclusively of persons affiliated with the Lutheran and Roman Catholic faiths, is exploring certain smaller religions not represented on the commission is contributing to a climate and atmosphere of religious intolerance.
There is also concern that the state is abandoning its neutrality in its application of laws to Jehovah’s Witnesses, that information provided in the schools about Jehovah’s Witnesses is not neutral, but derogatory, and that materials sent by Jehovah’s Witnesses to school libraries and other public facilities have been rejected. In fact, they have been banned.
The Unification Church is also focused on in the report. The Rapporteur on Religious Freedom describes the exclusion from Germany of the Reverend and Mrs. Sun Myung Moon, the leaders of the Unification Church worldwide. The report also notes that Reverend and Mrs. Moon have been banned from entering any of the nine Schengen Treaty nations, by virtue of the German government’s listing of them under that treaty. This was done, ostensibly, because their presence might constitute some violation of the public order although the precise nature of violation is still unclear. It is clear that it was not based on any criminal violation, but apparently only on a concern that the founder of the Unification Church was controversial, and would influence the youth of Germany in some way which the German government found undesirable. According to the report, the only response to that allegation from the German government is that it is a matter before the courts, and should be left to the courts.
The Unification Church also is concerned about the denial of tax exempt status and the publication by the German government of 200,000 copies of a booklet and other materials that are highly derogatory, negative and, in fact, somewhat defamatory with respect to the Unification Church. At the end of the booklet, there is a section described as “Help for the Afflicted.” Reference is made to several dozen Lutheran and Catholic resources to which one can go if one is “afflicted”—apparently with the illness of being a member of this particular church! There is also concern expressed about treatment of the Unification Church in schools, and the effect that this has on the children of members.
Hare Krishna, the Bagwans, charismatic Christians, and others have also complained of fear of government limitations, according to the report.
Then, of course, there is the issue of Scientology, which takes up a considerable portion of the report. There is discussion of the national surveillance under which Scientology has been put in Germany, and the black-listing initiated by the government, including various “sect filters,” as they are called, which are designed to preclude members of the Church of Scientology from employment in civil service jobs, and from obtaining government contracts in Bavaria. Scientologists also complain of negative information, which affects the children of members of the Church of Scientology.
In the case of Scientology, the government of Germany has responded that they do not believe that the Church of Scientology is a religion. They aver further that, even if they accepted that Scientology was a religion, they are simply protecting their citizens and the liberal democratic order because Scientology is attempting to establish a “Scientological legal system.”
These are some of the concerns expressed by the Rapporteur. In his recommendations, he emphases the right to freedom of religion as far-reaching and states that limitations on that freedom must not discriminate against small religions. In that regard, he calls attention to Comment 22 of the United Nations Human Rights Commission, which specifically applies the provisions of the Article 18 of the International Covenant on Civil and Political Rights to minority religions.
Comment 22 states:
Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established or represent religious minorities that may be the subject of hostility by a predominant religious community.
This clearly presents the position of the United Nations Human Rights Commission that minority or small or newly established religions should receive the full protection of the religious freedom provisions of the various United Nations documents.
The Rapporteur notes that the committee considers that limitations on religious freedom may be applied only for those purposes for which they were prescribed, and that they must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes, or applied in a discriminatory manner. The Rapporteur states that the German government must not censure any particular faith in conformity with international law. State intervention in the field of religion and belief cannot involve taking responsibility for people’s conscience in promoting, imposing, or censuring a particular faith or belief.
The Rapporteur is concerned that in Germany small religions face a climate of suspicion and intolerance. The responsibility for this climate lies, in the view of the minority religions, with the major churches, which are anxious to preserve their dominant religious status and stem the loss of members to other groups and communities. The major churches allegedly have used their influence with the state to cause it to use its political and administrative institutions to further their purpose, in particular through public information campaigns on sects, assistance for “victims” of sects, and the Bundestadt’s Study Commission. The climate is allegedly maintained by the popular press, and sometimes reflected amongst low-ranking civil servants.
The report calls for a dialogue in attempting to address resolution of these concerns. The Rapporteur states that, with respect to the relationship between minority and majority religions in Germany, “there is a need for an ongoing dialogue to avoid maintaining a climate of mistrust or even intolerance within society.” I therefore suggest that one of the things that this conference could propose, would be that an effort be made at constructive dialogue between the majority churches and the smaller churches in Germany.
The report emphasizes that information disseminated by the German government on minority religions must be strictly neutral, and not defamatory or discriminatory. Apparently, in response to complaints registered by the Unification Church and other minority religions, the Rapporteur says that information provided by the German government should be “expanded and diversified,” and that the right to legal challenge of the information must be preserved and guaranteed to all, particularly to those who believe that their interest has been harmed by unsubstantiated or incorrect information. The state’s obligation to remain neutral applies to the content of any information they disseminate, which should not be discriminatory, defamatory, or slanderous.
The Rapporteur also suggests in the report that tax and other laws must be applied in a non-discriminatory fashion to minority religions. The various legal instruments must be rigorously enforced, particularly in social and tax spheres, and substantiated in a non-discriminatory manner.
The Rapporteur also emphasizes the importance of access to legal remedies in Germany. It is of vital importance that—when conflicts arise—the state, communities, and groups put themselves in the hands of a judicial system which decides on the facts, rather than courting the passions of the masses, or acting on the spur of the moment. This, of course, begs the question of why conflict should arise in the first place, if the German government is in fact adhering strictly to these principles of neutrality.
In general, the report encourages the German government to actively promote a climate of tolerance, including education in the public school system in that regard. The Rapporteur believes, “that the state, beyond day to day management, must implement a strategy to prevent intolerance in the field of religion and belief.” He believes that sustained efforts are required to promote and develop a culture of tolerance and human rights. The state must play an active role in the developing awareness of the values of tolerance and non-discrimination. The report also calls for training of the media in religious tolerance, and notes the special role of the media.
One of the issues that the Rapporteur refers to is the fact that in international law the notions of “sect” or “cult” are not terms of art, and that the only truly appropriate term is “religion.” Therefore, he raises, indirectly, the issue of the definition of religion.
In the United States, the definition of religion and religion that is protected under the United States Constitution, has expanded from the theistic definition articulated in the 1890s in the Beason case, to a much broader definition, broader than that apparently adopted by the European Court of Human Rights. In cases having to do with draft resistance, and other cases concerning religions, the US Supreme Court has rejected the restrictive theistic model of religion, noting the existence of a number of religions which do not teach what would generally be considered a belief in the existence of God, including Buddhism, Taoism, ethical culture, and others. The court has also held that, if a given belief is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by orthodox belief in God, then the believer clearly qualifies for an exemption based upon religious belief or practice.
Finally, I call your attention to an important case, The Fellowship of Humanity vs. The County of Alameda, in which the court said that, in determining whether something is a religion, one should not look only to a parallel with established religions, but also to the following four factors: 1) a belief (not necessarily referring to theistic belief); 2) a cult involving a gregarious association expressing the belief; 3) a system of moral practice directly resulting from an adherence to the belief; and 4) an organization designed to observe the tenets of the belief. This is a much broader approach than that used by the German government, and many other governments and courts in attempting to define religion in the European context. I suggest to you that this is the kind of open, broad, and expansive reading of religion, which is required in our increasingly pluralist world.