Abstract
Comparative examination of secularity of contemporary states yields significant insights into the nature of pluralism, the role of religion in modern society, the relationship between religion and democracy, and more generally, the fundamental question about the relationship between religion and state. This report examines a number of countries, focusing on the following recurring tensions in the relationship between religion and state: the general social context, constitutional and legal setting, religious autonomy, legal regulation of religion, state financial support for religion, civil effect of religious acts, religion and education, religious symbols in public places, and the interaction between freedom of expression and offenses against religion. The report reflects a remarkable diversity in configuration of religion-state relations around the world.
I.B., La religion et l’ét laïe. The current essay is a shortened version of the original General Report, which is available at http://www.iclrs.org/index.php?blurb_id=975&page_id=3. The full version contains more detailed footnoting to the various country reports that could not be included here.
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Notes
- 1.
For more extensive analysis of types of religion-state configurations, see W. Cole Durham Jr. and Brett G. Scharffs, Religion and the Law: National, International and Comparative Perspectives (Austin/Boston/Chicago/New York/Netherlands: Wolters Kluwer Law and Business, 2010), 114–122.
- 2.
The discussion of the sixth of these topics (civil effects of religious acts) has been dropped from the current version of this General Report, but is available in the full version as indicated in note 1 above.
- 3.
See W. Cole Durham, Jr. and Elizabeth A. Sewell, “Definition of Religion,” in James A. Serritella et al. (eds.), Religious Organizations in the United States: A Study of Legal Identity, Religious Freedom and the Law (Durham: Carolina Academic Press, 2006).
- 4.
Canada II.
- 5.
Id.
- 6.
Id.
- 7.
Id.
- 8.
See, e.g., Pew Forum on Religion and Public Life, Global Restrictions on Religion (17 December 2010), available at http://pewforum.org/Government/Global-Restrictions-on-Religion.aspx; Brian J. Grim and Roger Finke, The Price of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century (Cambridge: Cambridge University Press, 2011).
- 9.
Grim and Finke, supra note 9, at 205–206.
- 10.
Id. at 202–222.
- 11.
G.A. Res. 217 (A(III), 10 December 1948, U.N. Doc. A/810, at 71 (1948)).
- 12.
G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. no. 16, at 52, 55, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171 (1976) (Art. 18).
- 13.
Adopted 18 January 1982, G.A. Res 55, 36 U.N. GAOR Supp. (No. 51), U.N. Doc. A/RES/36/55 (1982).
- 14.
American Declaration of the Rights and Duties of Man, art. III, O.A.S.res. XXX, Adopted by the Ninth International Conference of American States, Bogota (1948): Novena Conferencia Internacional Americana, 6 Actas y Documentos (1953), 297–302.
- 15.
The accompanying diagram is taken from Durham and Scharffs, supra note 2, at 117. See discussion there for a fuller analysis of the varying religion-state configurations that it represents.
- 16.
United Kingdom III. The UK Reporter notes that “[t]e Welsh Church Act 1914 disestablished the Church of England in Wales.” For a more detailed analysis of the current state of establishment in the UK, see Anthony Bradney, Law and Faith in a Skeptical Age (London: Routledge, 2009), Chapter 3.
- 17.
India VIII.
- 18.
Id.
- 19.
Canada VIIB.
- 20.
Id.
- 21.
Id.
- 22.
International Covenant on Civil and Political Rights, art. 18(1) (emphasis added).
- 23.
For an extensive collection of comparative studies of this theme, see Gerhard Robbers (ed.), Church Autonomy: A Comparative Survey (Frankfurt: Peter Lang, 2002).
- 24.
Mark E. Chopko, “Constitutional Protection for Church Autonomy: A Practitioner’s View,” in Robbers, supra note 24, at 96.
- 25.
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
- 26.
Id. at 714–715.
- 27.
See Netherlands VII (noting that “[t]he law in general has developed against the background of a Western culture based on a morality influenced by Christianity.”) The same point can be made about law with different background cultures. See, e.g., national reports of India, Japan and Sudan.
- 28.
H. Richard Niebuhr, Christ and Culture (New York: Harper & Brothers, 1951).
- 29.
Angela C. Carmella, “A Theological Critique of Free Exercise Jurisprudence,” George Washington Law Review 60 (1992): 782–808.
- 30.
Id. at 786–787.
- 31.
Id. at 788–789.
- 32.
Germany VII.
- 33.
Hungary VIII.
- 34.
Japan VII.
- 35.
Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
- 36.
Multani v. Commission Scolaire Marguerite-Bourgeoys and Attorney General of Quebec, 1 S.C.R. 256, 2006 SCC 6 (2006) (Supreme Court of Canada), paras. 42–43, 49–50.
- 37.
Canada V.A.
- 38.
Australia VI.
- 39.
Sweden VII.
- 40.
U.S. 872 (1990).
- 41.
Id. at 879–81, 884.
- 42.
Id. at 877 (citing Sherbert, 374 U.S. at 402).
- 43.
Id. (citing Torcaso v. Watkins, 367 U.S. 488 (1961)).
- 44.
Id. (citing United States v. Ballard, 322 U.S. 78, 86–88 (1944)).
- 45.
Id. (citing McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953)).
- 46.
Id. (citing Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 39U.S. 440, 445–452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95–119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708–725 (1976)).
- 47.
Id. at 884.
- 48.
Id. (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)).
- 49.
This was confirmed in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
- 50.
The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. (2007).
- 51.
City of Boerne v. Flores, 521 U.S. 507 (1997).
- 52.
Gonzales v. O Centro Espirito Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).
- 53.
Religious Liberty and Charitable Donation Protection Act of 1998, Pub. L. No. 105–183, 112 Stat. 517 (1998) (amending 11 U.S.C. 544, 546, 548, 707, 1325 (1994)); Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000 cc et seq.; American Indian Religious Freedom Act Amendment of 1994, Pub. L. No. 103–344, 108 Stat. 3125 (1994) (codified at 42 U.S.C. § 1996a (2007)).
- 54.
For further details, see W. Cole Durham Jr. and Robert T. Smith, “Religion and the State in the United States at the Turn of the Twenty-First Century,” in Law and Justice, The Christian Law Review (United Kingdom: The Edmund Plowden Trust, 2009) Number 162. The total count of states opting for heightened scrutiny reached 25 when Tennessee passed a state RFRA in early 2010.
- 55.
See Article 137 of the Weimar Constitution, integrated into the current German Grundgesetz.
- 56.
See the Portuguese Lei da Liberdade Religiosa of 2001, art. 37.
- 57.
See, in addition to the national reports, the Portuguese Lei da Liberdade Religiosa of 2001, art. 32.
- 58.
This is illustrated in detail in the relevant section of national reports.
- 59.
See the Portuguese Lei da Liberdade Religiosa of 2001, arts. 32–36.
- 60.
For more background on the U.S. system, see Durham and Scharffs, supra note 2, at 420–23, 472–73.
- 61.
The same applies to other countries, as Andorra, in which the preferential treatment of the Catholic Church derives from the Constitution rather than from a Concordat.
- 62.
See, in addition to the relevant country reports, the Portuguese Lei da Liberdade Religiosa of 2001, art. 32.
- 63.
On the other hand, note also that in the tax-assignment systems taxpayers are not asked about their religious affiliation but just about their will to donate a certain percentage of their income tax for the support of a religious community. Therefore, nothing prevents a taxpayer to choose as beneficiary a religious community different from his own, although in practice this is unusual.
- 64.
Thus, for instance, in Germany and Australia. In Japan, the issue of the educational quality of private schools does not seem to be an issue, for some religious schools enjoy a predominant prestige in the country.
- 65.
Everson v. Board of Education, 330 U.S. 1 (1947).
- 66.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
- 67.
However, there is religious confessional instruction organized by public authorities in the region of Alsace-Moselle, which did not join the separation system after it was returned to France in 1918.
- 68.
This possibility was examined by the European Court of Human Rights in Folgerø et al. v. Norway, June 29, 2007.
- 69.
Zengin v. Turkey, App. No. 1448/04 (ECtHR, 9 October 2007).
- 70.
See, for instance, the Toledo Guiding Principles on Teaching about Religions and Beliefs, prepared by the OSCE/ODIHR Advisory Council of Experts on Freedom of Religion or Belief, Warsaw 2007, where the difficulties of this type of religious education, together with detailed recommendations to make it efficient and actually neutral, are well explained. The text is available in http://www.osce.org/publications/odihr/2007/11/28314_993_en.pdf.
- 71.
The European Court of Human Rights has faced this type of issues in Saniewski v. Poland (App. No. 40319/98, declared inadmissible on 26 June 2001) and Grzelak v. Poland (App. No. 7710/01, Chamber Judgment of 15 June 2010).
- 72.
See the Constitutional Court decisions 38/2007, of 15 February 2007; and 80/2007, of 19 April 2007; but see, decision 51/2011 of 14 April 2011 (going in the opposite direction).
- 73.
Şahin v. Turkey, App. No. 44774/98 (ECtHR (Grand Chamber), 10 November 2005).
- 74.
Dogru v. France, App. No. 27058/05 (ECtHR, 4 December 2008).
- 75.
Andorra XI; Chile IV.C; Colombia XI; Estonia IX; Peru X; Philippines XI; Russia XI; Ukraine XI; Uruguay XII. The same would be true in the United States today, although there have been cases striking down older laws targeting Catholic nuns and priests that imposed constraints on the wearing of religious garb in school settings.
- 76.
Australia X; Italy VIII; Netherlands XVI.
- 77.
Czech Republic XI; Sweden XI.
- 78.
Lautsi v. Italy, App. No. 30814/06 (ECtHR, 3 November 2009), reversed by; the Grand Chamber opinion of 18 March 2011.
- 79.
United States II.
- 80.
For an excellent analysis of this controversy, see Jytte Klausen, The Cartoons That Shook the World (New Haven: Yale University Press, 2009).
- 81.
Joint Declaration on Defamation of Religions and Anti-Terrorism and Anti-Extremism Legislation, Frank La Rue, UN Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti, OSCE Representative on Freedom of the Media, Catalina Botero, OAS Special Rapporteur on Freedom of Expression, and Faith Pansy Tlakula, ACHPR Special Rapporteur on Freedom of Expression, page 2 (10 December 2008), available online at http://www.osce.org/documents/rfm/2008/12/35705_en.pdf.
- 82.
App. No. 38178/97 (ECtHR, 14 December 1999), § 53.
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Martínez-Torrón, J., Durham, W.C. (2012). Religion and the Secular State. In: Brown, K., Snyder, D. (eds) General Reports of the XVIIIth Congress of the International Academy of Comparative Law/Rapports Généraux du XVIIIème Congrès de l’Académie Internationale de Droit Comparé. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2354-2_1
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