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The Right to Engage in Religious Persuasion

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Facilitating Freedom of Religion or Belief: A Deskbook

Abstract

Justice Frankfurter of the United States Supreme Court once wrote, “Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing.”1Proselytism is one form of expression that has resulted in inevitable, and sometimes fierce, conflict. But on Justice Frankfurter’s terms, proselytism—whether it is viewed as an exercise of free expression or a manifestation of religious belief—is not in itself the problem. The problem lies in finding the proper balance between the freedom to proselytize and the multitude of rights, duties, and interests of religious groups, individuals, and the state that may conflict with that freedom.

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References

  1. Niemotko v. Maryland, 340 US 268, 275 (1951) ( Frankfurter, J, concurring).

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  2. See “Common Witness and Proselytism,” The Ecumenical Review 23, no. 1 (January 1971): 9–2 0 (prepared by the Joint Theological Commission of World Council of Churches and the Catholic Church); “Proselytism embraces whatever violates the right of the human person, Christian or non-Christian, to be free from external coercion in religious matters, or whatever, in the proclamation of the Gospel, does not conform to the ways God draws free men to himself in response to his calls to serve in spirit and in truth” (ibid., 9).

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  3. This position may be directly related to a religion’s view on conversion: [W]hile many religions or beliefs welcome—and in some cases even encourage—the conversion of individuals belonging to other faiths, they are reluctant to admit the conversion of individuals of their own faith; apostasy is viewed with disfavour by them and often is prohibited by their religious law or discouraged by social ostracism (Tad Stahnke and J. Paul Martin, eds., Religion And Human Rights: Basic Documents [New York: Columbia University, 1998], 2, 22). The above quote was originally found in Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices , UN Doc. E/C N. 4/S u b 2/200/R e v 1, UN Sales No. 60.XIV.2 (1960) (reprinted in Stahnke and Martin, Religion and Human Rights: Basic Documents).

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  4. For a good review of views on proselytism as articulated in documents issued by Catholic, Protestant, and Orthodox Christian church bodies and associations, see Joel A. Nichols, “Mission, Evangelism, and Proselytism in Christianity: Mainline Conceptions as Reflected in Church Documents,”Emory International Law Review12 (1998): 563.

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  5. These interests are the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others” ( International Covenant on Civil and Political Rights [ICCPR], 19 December 1966, art. 18[3], 999 UNTS 171, reprinted in 6 ILM 368, 383). See also The European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, art. 9(2), 312 UNTS 221 (hereafter “European Convention”); reprinted in Barry E. Carter and Phillip R Trimble, eds., International Law: Selected Documents (Boston: Little, Brown and Co., 1995), 467–68.

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  6. Common Witness and Proselytism,“ para. 28(b).

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  8. i>Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR260-A, 25 May 1993).

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  10. Ibid. According to the European Court, an interference with the freedom to manifest religion or belief “is contrary to Article 9 unless it is prescribed by law, directed at one or more of the legitimate aims in paragraph 2 [of Article 9] and necessary in a democratic society for achieving them” (Kokkinakis v. Greece, 18 [citations omitted]). For an interference to be “necessary in a democratic society,” it must be both

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  11. Justified in principle and proportionate“ to the aim to be achieved (ibid., 21).

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  12. See Human Rights Committee General Comment 22 (1993), art. 18, UN GAOR, 48th Sess., para. 2, UN Doc. C C P R/C/2 1/R e v 1/Add 1 (1989), reprinted in UN Doc. HR1/G E N/1/R ev 1 at 26 (1994); Kokkinakis v. Greece, 17.

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  17. See S.W.M. Broeks v. The Netherlands, para. 13; General Comment 18, para. 13; Belgian Linguistics Case, ECtHR 6-A, 34 (1968).

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  18. See also Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, UNGA Res. 4 7/1 3 5, art. 1(1) (hereafter “Minorities Declaration”); Framework Convention for the Protection of National Minorities, art. 8 (hereafter “Framework Convention”); Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe, para. 32 (hereafter “Document of the Copenhagen Meeting”).

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  19. See Human Rights Committee General Comment 23 (1994), art. 27, UN GAOR 50th Sess., paras. 6.2, 8; UN Doc. C C P R/C/2 1/R e v 1/Add 5 (1994); Framework Convention, paras. 4(2), 4(3); Document of the Copenhagen Meeting, para. 33.

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  20. See General Comment 23, para. 6.2; Minorities Declaration, art. 8.3; Document of the Copenhagen Meeting, para. 33.

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  21. Some activities that are closely associated with proselytism are mentioned in these international documents. See, e.g., General Comment 18, 35 (“freedom to prepare and distribute religious texts or publications” is part of teaching and practice of religion); 1981 Declaration, arts. 6(d) (freedom to “write, issue and disseminate relevant publications”) and 6(f) (freedom “[t]o solicit and receive voluntary financial... contributions”); Concluding Document of the Vienna Meeting, principles 16(d) (solicit financial contributions) and 16(j) (disseminate religious publications).

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  22. Not all states are in agreement. The Malaysian government has argued that laws prohibiting proselytism directed at Muslims do not impact the right to religious freedom of non-Muslims. See Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN ESCOR, 46th Sess., Capital Provisional Agenda Item 24, Committee on Human Rights, para. 58, UN Doc. E/C N. 4/1990/4 6 (1990) (hereafter “Special Rapporteur’s Report 1990”).

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  23. Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices , 34.

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  25. General Comment 22, para. 2. See Murdock v. Pennsylvania, 319 US 105, 108–09 (1943).

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  26. See ICCPR, art. 19(3)(b); European Convention, art. 10(2); American Convention, art. 13(2)(b); 1981 African Charter on Human and Peoples’ Rights, 27 June 1981, art. 27(2), reprinted in 21 ILM 59 (hereafter “1981 African Charter”).

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  27. See ibid.; Human Rights Committee General Comment 10 (1994), art. 19, UN GAOR, 19th Sess., para. 4, UN Doc. H R I/G E N/1/R ev 1 at 11.

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  29. See Universal Declaration of Human Rights, GA Res. 217, UN GAOR, art. 18 (1948) (hereafter “Universal Declaration”); European Convention, art. 9(1); American Convention, art. 12(1).

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  30. ICCPR, art. 18(2). Over time, reaching a consensus on this point seems to be even more elusive. The 1981 Declaration, art. 1(2), adopted the same wording as article 18(2) of the ICCPR, but deleted the important phrase “or to adopt.” See 1981 Declaration, art. 1(2).

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  31. General Comment 22, para. 5.

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  32. See Special Rapporteur’s Report 1990, para. 60 (Mauritania); Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN ESCOR

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  33. th Sess., Provisional Agenda Item 22, Commission on Human Rights, para. 76, UN Doc. E/C N. 4/1991/5 6 (1991); Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief UN ESCOR, 49th Sess., Provisional Agenda Item 22, Commission on Human Rights, para. 56, UN Doc. E/C N. 4/1993/62 (1993) (hereafter “Special Rapporteur’s Report 1993”). Islamic States are not the only ones that have, or have had, punishments for apostasy. According to Blackstone’s commentary on the laws of England, apostasy was at one time apparendy punished by death (William Blackstone, Commentaries on the Laws ofEngland: A Facsimile of the First Edition of 1765–1769 [Chicago: University of Chicago Press, 1979], 44). Nepal apparendy had, until recently, a prohibition on apostasy that applied to all religions (Nepal Const, art. 19[1]; reprinted in Albert P. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World [Dobbs Ferry, N.Y.: Oceana, 1971]).

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  34. Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 17, 25 May 1993).

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  35. See ICCPR, art. 19(2); European Convention, art. 10(1); American Convention, art. 13(1); 1981 African Charter, art. 9.

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  36. See Otto - Preminger- Institut v. Austria, 19 EHRR 34 (1995) (ECtHR295-A, 20, 20 September 1994 ).

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  37. See Martin v. City of Struthers, 319 US 141 (1943).

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  38. Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR260-A, 25 May 1993).

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  39. A 1960 case from Pakistan illustrates these problems. See Punjab Religious Book Society v. State, PLD 629 (WP) Lahore 631 (Pakistan) (1960) wherein the High Court of Pakistan stated: It is clear that in the attempt to show that a particular religion is better than the others, things may be said or written which will outrage the religious feelings of followers of other religions. When a person does that, the law will presume that he intended to insult religious beliefs of the followers of other religions. But even so the ingredients of section 295-A of the Pakistan Penal Code will not have been satisfied because they can be satisfied only if it is established that the intention to insult the religious beliefs was deliberate and malicious. When the thing objected to on the ground that it outrages the religious feelings of others is extremely offensive and has no reliable source to justify its acceptance as correct, the Court will presume that it was done with the deliberate and malicious intention of insulting the religious beliefs of the followers of the religion to which or the founder of which the thing relates. The same presumption will be raised when the thing objected to indicates that the argument in favour of one religion has sunk to the level of abuse of another (ibid., 637–38). Furthermore, the Court cautioned that the perspective from which the action was to be judged was that of a neutral person of normal susceptibilities: “a person who is neither connected with the religion of the person who is alleged to have outraged the religious feelings of someone nor with that of the person or persons whose religious feelings are stated to have been outraged” (ibid., 638).

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  40. The European Commission has indicated that prohibitions on blasphemy could be applied to manifestations of religious belief; see Gay News v. United Kingdom, 5 EHRR 123 (1983), para. 13 (EComHR, 1982 ): “Even assuming that there had in fact been an interference with the applicants’ rights under Art. 9, it would have been justified under Article 9(2) on the same grounds as the restriction of the applicants’ freedom of expression under Article 10(2).”

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  41. Wingrove v. United Kingdom, 2 4 EHRR1 (1997) (ECtHR 1996-V, 25 November 1996 ).

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  42. The English courts had defined blasphemy as follows: Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves (ibid., 24 EHRR 14, emphasis added).

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  43. Otto-Preminger-Institut v. Austria, 19 EHRR 34 (1995) (ECtHR 295-A, 20, 20 September 1994 ).

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  44. Ibid., 17–18. The dissenting judges opposed the idea that the right to freedom of religion encompassed the protection of religious feelings from injury. See ibid., 2 4 (Palm, Pekkanen and Makarczyk, JJ, dissenting).

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  45. An exception to this principle may be found in the obligation to prohibit “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” as provided in ICCPR, art. 20(2) and similar provisions of other international instruments. Where the content of proselytism includes expression that falls within the ambit of these provisions, the state may be obligated to act to prohibit such expression. See General Comment 22, para. 7.

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  46. In contrast, the United States Supreme Court has taken the view that the state may not legitimately prohibit “attacks upon a particular religious doctrine,” because of the inherent difficulty in administering such a prohibition without favoring certain groups over others (Joseph Burstyn, Inc. v. Wilson, 343 US 495, 505 [1952]).

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  47. In this regard, there can be significant conflict between individual members of minority groups and the group as a collective body or its leadership. See Francesco Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities,Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN ESCOR, 32d Sess., para. 250, UN Doc. E/CN.4/Sub 2/3 8 4/R e v 1, UN Sales No. E 78.XIV. 1 (1979).

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  48. See José R. Martinez Cobo,Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/C N$14/S u b$12/1 9 8 2/2/A d d. 7, para. 48 (1982).

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  49. See Zimbabwe Const, art. 19(5)(b) (permitting limitations on the freedom of religion “for the purposes of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of persons professing any other religion or belief’), reprinted in Blaustein and Flanz, Constitutions of the Countries of the World.

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  50. For an example of a restriction on proselytism in the face of this concern, see State Party Report of Brazil to the Human Rights Committee, UN Doc. CCPR/C/81/Add.6, para. 235 (1997): “All churches and denominations are free to establish places of worship and religious education, though the Government controls access of missionaries to indigenous areas so as to avoid forced acculturation.”

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  51. Draft United Nations Declaration of the Rights of Indigenous Peoples, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Res. 1994/1995, 26 August 1994, art. 7, UN Doc.

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  52. Ann Elizabeth Mayer, “Law and Religion in the Muslim Middle East,”American Journal of Comparative Law35 (1987): 127, 149

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  53. See Implementation of the Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief UN ESCOR, 45th Sess., Provisional Agenda Item 22, Commission on Human Rights, paras. 51–52, UN Doc. E/C N. 4/1989/44 (1988); Special Rapporteur’s Report 1990, para. 58. See also Minister for Home Affairs v. Othman, 1 MLJ 418, 420 (Supreme Court, 1989): “The freedom to profess and practice one’s religion must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practising one’s religion.”

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  54. See Stahnke, “Proselytism and the Freedom to Change Religion,” 310–12.

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  55. Howard L. Biddulph, “Religious Liberty and the Ukrainian State: Nationalism Versus Equal Protection,”BTU Law Review(1995): 321.

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  56. See General Comment 22, para. 9. For an example of this from the European Court, see Darby v. Sweden, App. No. 1 1 5 8 1/8 5 (ECtHR 187-A, 23 October 1990), where the European Court determined that a state cannot force an individual to contribute to a state church if they are not a member of that church.

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  57. Yulitha Hyde v. State, AIR 116 (Ori) 120 (India, 1973 ).

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  58. See ibid.; Stainislaus v. State, AIR 163 (MP) (India, 1975 ). Indian Const, art. 25(1) provides: “[S]ubject to public order, morality and health and to the other provisions of this Part [of the Constitution], all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

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  59. See Yulitha Hyde v. State, AIR 116 (Ori) 121; Stainislaus v. State, AIR 163 (MP) 168.

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  60. See Stainislaus v. State, AIR 163 (MP) 168.

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  61. Yulitha Hyde v. State, AIR 116 (Ori) 121.

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  62. See Stainislaus v. Madhya Pradesh and Ors, 2 SCR 611 (1977).

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  63. Ibid., 616. The court noted that the term “propagation” as used in art. 25 meant “to transmit or spread one’s religion by an exposition of its tenets” (ibid.).

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  64. See Universal Declaration, art. 26(2); International Covenant on Economic, Social and Cultural Rights, 16 December 1966, art. 13(1), 993 UNTS 3; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1 9 6 6, 6 6 0 UNTS 195, reprinted in 5 ILM 352; 1981 African Charter, arts. 28, 29(7); Concluding Document of the Vienna Meeting, principle 16b.

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  65. Pordiscussion of these issues in the context of racial discrimination in the United States, see Palmore v. Sidoti, 4 6 6 US 429, 433 (1984): “The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Watson v. City of Memphis, 373 US 526, 535 (1963): “Constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Buchanan v. Warley, 245 US 60, 81 (1917): “[Preservation of the public peace cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.”

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  66. A number of governmental entities in western Europe have begun investigations into the activities of religious groups considered to be “dangerous” to its members or others, with a view towards the necessity or desirability of legal reforms or educational programs. The work of the Council of Europe is discussed below. The European Parliament’s investigation culminated in the Rapporteur’s Report on Behalf of the Committee on Youth, Culture, Education, Information and Sport on the Activity of Certain New Religious Movements Within the European Community, European Parliament Doc. 1–4 7/8 4 (1984), which called for member states to set up their own study commissions. Reports have recendy been issued by such commissions in France, Belgium, Germany, Italy, Switzerland, and Sweden.

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  67. For the recommendation of the European Parliamentary Assembly of the Council of Europe on this question, see Parliamentary Assembly Recommendation 1178 (1992) on sects and new religious movements, para. 7(i)-(ii). See alsoOpinion of the Commission on Culture and Education, Eurpean Parliamentary Assembly, 43d Sess., Doc. No. 6546, 3 (1992): “The solution of the problem of sects does not lie in legislation. The problem of sects which commit offences exists, but so do the laws which punish these offences. What is needed is a greater awareness, preventive measures, and the collective responsibility of society. Greater vigilance will of course be necessary, but the most effective action, in the medium term and long term, is education in this field, general information, creative and free association between young people, friendships between the people and groups concerned, and cultural growth with an enhanced capacity for thought and critical analysis.”

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  68. The United States Supreme Court has held that the First Amendment precludes courts from deciding the truth or falsity of religious doctrines and beliefs. See United States v. Ballard, 322 US 78, 86 (1944): “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.” For a different view regarding consumer fraud, see Church of Scientology and Another v. Sweden, App. No. 7 8 0 5/7 7, 1 6 Decisions and Reports 70 (EComHR 511, 5 May 1979).

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  69. Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 28, 25 May 1993 ) (Pettiti, J, pardy concurring).

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  70. See, e.g., Lee v. Weisman, 505 US 577 (1992).

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  71. See Larissis and Others v. Greece, 27 EHRR 329 (1999) (ECtHR 1998–1, 24 February 1998 ).

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  72. See Human Rights Committee General Comment 15 (1986) on the position of aliens under the covenant, UN GAOR, 28th Sess., 22 July 1986, paras. 2, 7, UN Doc. CCPR/C/21/Add.5/Rev.l.

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  73. See Universal Declaration, art. 19; ICCPR, art. 19(2); European Convention, art. 10(1); American Convention, art. 13(1); Document of the Copenhagen Meeting, paras. 9.1, 32.4. In the context of minorities, see 1981 Declaration, art. 6(i); Minorities Declaration, art. 2(5); Framework Convention, art. 17(1).

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  75. Yulitha Hyde v. State, AIR 116 (Ori) 121 (India, 1973 ).

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  76. See Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 12, 25 May 1993).

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  78. See Kunz v. New York, 340 US 290, 298 (1951) (Jackson, J, dissenting); Niemotko v. Maryland, 340 US 268, 282–83 (1951) ( Frankfurter, J, concurring ).

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  79. An additional attribute considered by the United States Supreme Court in the regulation of speech, including proselytism, in public places is the degree to which the place is historically “devoted to assembly and debate” or has been opened by the state “for use by the public as a place for expressive activity” (Perry Education Association v. Perry Local Educators’ Association, 460 US 3 7, 4 5, 4 6 n.7 [1983]).

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  80. See Kokkinakis v. Greece, ECtHR260-A, 21, 50.

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  93. see also Heffron v. Int’l Society for Krishna Consciousness, Inc., 482 US 569 (1987)

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  94. Board of Airport Commissioners v. Jews for Jesus, Inc., 482 US 569 (1987);

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  95. Jimmy Swaggart Ministries v. Board of Equalization, 493 US 378 (1989)

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  98. See Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR260-A, 12,25 May 1993); see also note 67 and accompanyingtext.

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  99. See ibid.; see also notes 59 and 93 and accompanying text; Penal Law Amendment (Enticement to Change Religion) Law, 5738–1977, reprinted in 32 Laws of the State of Israel62 (1977/7 8).

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Tore Lindholm W. Cole Durham Jr. Bahia G. Tahzib-Lie Elizabeth A. Sewell Lena Larsen

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Stahnke, T. (2004). The Right to Engage in Religious Persuasion. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_27

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