LawReligion

Situate EU Church/State Relations Financing of religion Limits of Religious Freedom Contractual Religious Freedom Financing of Churches and Religious Communities Religion and Rule of Law in Southeast Asia European Consortium for Church and State Research Religious Symbols in the Public Sphere New Religious Movements

Theme: Methodology of the relationship between Law and Religion as seen in particular cases, e.g. separation, Islam in the EU legal milieu, EU Ct of Human Rights, financing religion, EU experience of Law and Religion, secular judge judging religious facts, new religious movements

• Reader - background for lecture
  

• Robbers, G. State and Church in Europe Baden&Baden 2006
  

• European Journal for Church and State
  

• Working Materials on State-Church Relations - Trier
  

• The Strasbourg Conference: A Forum on Freedom of Religion or Belief
  

• [www.cfia.org CFIA] Council on Faith and Internatioinal Affairs
  

• Exam Q1 - Law and religion beyond your national experience 5 min; Q2 tba
  

Situate EU Church/State Relations

The experiences of European states are less diverse internally than they are different from other experiences, e.g. US. There is religious freedom and some collaboration (more than US) - mutual independence

• 19th Century: Some models of separation were slowly worked out in some European states.
  

• friendly separation - positive
  

• Lemennais liberal separation - neutral
  

• Cavour hostile separation (France) negative
  

• These are somewhat simultaneous, but they are stages as well. If relations are not good, there is a move to neutral or negative. If it is not an integral move, it is rockier and more radical.
  

• Lamennais - liberal catholic sought freedom also for the church. Temporal power isn't good for the spiritual mission of the church. E.g. Belgian Constitution. 1831, separation, but financial support to recognized religions - no contradiction here. Liberal Catholics and Catholic Liberals
  

• Cavour - Libera Chiesa in Libero Stato. Liberty is foremost. Unification of Italy wrested power over the papal states from the pope. These states then became the most leftist states in Italy.
  

• France - 1901, 1905 because this was later, it was a more hostile separation. No subsidy of religion, abolishment of 1801 concordat of payment of religious ministers. That payment was in part compensation for confiscation of church property.
  

• Marriage control was control of the population - best statistics for the era. So that many countries said civil marriage had to precede church marriage.
  

• Belgium, Netherlands, Germany and France where canonical marriage is co-habitation.
  

• Not true in Italy and Spain - But that is not separation, but a mixing.
  

• Could probably be attacked as contra-EU Treaty.
  

• In Germany (or Belgium?), there is punishment for doing religious marriages before the civil marriages, fine or imprisonment (repeated offense).
  

• Financial support is also the norm.
  

• Other examples
  

• Portugal - catholic state too long, then violent overthrow to hostile separation.
  

• US guarantee for individual liberty rather than sanction of religion. Many individuals were fleeing European religious majorities. No majority religion in US, more true natural separation. In Europe instead Church State relations were more about relation with 1 church.
  

• French Cathedrals after 1905 were nationalized as a 'punishment'. However they can still be used for religious ceremonies - no entrance fees allowed. However, this came to be a benefit for the Church - buildings are large, difficult to maintain, and have few practical uses. 1958 Charles de Gaulle 5th French Republic Laïcité "The Republic neither recognizes, nor salaries, nor subsidizes any religion."
  

• There isn't strict Separation - Mutual Independence
  

• Freedom of Religion (individual, church activities) is distinct from Separation of religion and state
  

• What happens if a civil servant wears headscarf? Difference of position: judge vs selling stamps. Journalist said against separation. But this is a misunderstanding; she is not acting in religious capacity.
  

• Can individual religious freedom be limited for civil servants?
  

• Financing of Religion - money is given to recognized religious groups. Some people say: not good. What about opera or police. The issue is Separation.
  

• US: Church State relations and mixing will be inherently unequal, so there is a limit on freedom from that perspective.

European System has two levels

1. Religious Freedom - this is required first before R/S
   

2. Religion and State relationships are predicated on good Religious Freedom
   

3. In many countries in Europe, there was great R/S, but no religious freedom to others. 7th day Adventist in a small town in Italy in 1950s treated shabbily by local authorities. Even if this is guaranteed in the Cx, how is it administered at the local level.
   

Religious Freedom is Individual, and organizational level.

• Organizational: You have to be able to acquire goods. Right to participate fully in legal life. It may not be the church itself, but may be associations, or subsets. E.g. legal personality in Romania took a long time to develop.
  

• Individual: There should be freedom for people of all religions to act in the social/ political forum. Can a XnScientist be a civil servant E.g. Belgian code says priests can't be judges. They may favor Catholic norms. But if they are qualified, they can be appointed, if not they can be sanctioned. If they apply 'anti-xn' laws, they may have a problem with church authorities. E.g. Mayor of Brussels refused to give permission to renovate a building because he didn't want them there. If there are crimes, address that, but not because of religion.
  

Religion and State relationship: Privileges - advantages given to some religious groups and not to others. Mostly financial. Typically European.

• (Canon Law Privileges more present in 1917 code than 1983 - today, they are more like they are ashamed of them.) Taboo in US, as inherently unequal. Privileges are built into the culture. Not subsidizing religious groups in Europe isn't the same as not subsidizing in US. Also it is to an extent a welfare state.
  

• EU High taxes > health, education, subsidized culture and sport. It this framework, you also give to church because you give money to everyone even bad sports teams. People in Europe give a few Euro cents in the church collection, but not more - the state takes care. But how can you do this when religious diversity comes in?
  

• US > lower taxes, but you have to pay for your services. Also you have to pay for your own churches. Americans are willing to pay for the churches.
  

Criteria for financing religion

1. Presence in country 10 years (eg). Russia, Austria - Movement against new religions, us evangelicals - buying converts.
   

2. Non-criminality - David Koresh, Jonestown. But what about JWs and conscientious objection to military or public service. Also no blood transfusions. Adults can refuse, but what about for children. Are these acts of individuals? But if they are acts of they are fostered by the group, then does the group bear responsibility. Catholic church - involved in sexual abuse and pedophilia - but not promoted within. (but does celibacy promote?)
   

3. Acceptance of the rule of law - does the group accept the rule of law - democratic society. No hate speech, no promotion of theocracy, accept human rights. Is this theoretical? Does this include structures of religion? E.g. discrimination against women. Divino constitutio
   

• Contractual religious freedom - you get money if you agree to certain structures and activities.
  

4. Statistics - objective, quantitative. How do you measure this? Baptism? In some countries, the census is seen as intrusion into religious freedom. So how to count? So the churches give their own statistics. Fairest, but not without it's problem. E.g. Italy, income tax gives you a choice of who to contribute. But church sees as a lifelong membership.
   

5. History - can be manipulated - unjust attitude - but it's tradition. Often tradition favored the strong and discriminating against the weak. But it can be a useful tool. Favor deserving minorities.
   

• E.g. Finland - two national churches. Lutheran - good reputation. Orthodox 1%. Finland was born in Karelia - now part of Russia - highly Orthodox. (Main holy places of Serbs are in Kosovo)
  

• E.g. Germany - Catholic and Protestant reps in Broadcasting. Also a Jew there. Here the statistics don't give the position, but historically it is a correction. And propaganda was a tool of Nazis.
  

6. Will this remain or will it come closer to US position of no privileges. But an example: some privilege may assist religious freedom. Many people went to help Russia establish the rule of law. US argued for complete equality. But Orthodoxy had the idea of symphony of church and state. Implementation will be nullified at the administrative. They will take revenge on religious freedom because they don't like the Religion/State position. So you have to give some advantages. Give them presence and advantages, but make sure there is also the crucial need to safeguard freedom of religion. Complete equality isn't needed for this. (People aren't perfect, but that is also their charm.)

Financing of religion

1. direct financing
   

2. intermediate financing - tax levied by churches
   

3. indirect financing

1. Direct Financing state directly gives money to churches. Paying for the faith of others (in they eyes of US). Present in Greece - payment of religious ministers by state, esp in orthodox countries. Also those of Napoleonic code: BE, LX, Alsace, - still governed by 1801 concordat, because in 1905 it wasn't part of France (but Germany). So it never got separation doctrine. E.g. in Belgium priests get 1,200 Euro per month plus housing. This exists in countries where it has traditionally existence. It is difficult to introduce it into new places.
   

• Pro 1 - compensation for nationalization of church goods. (Not like communist countries, given back after 50 years of negligence) Give money eternally
  

• Pro 2 - Social utility of religion - also gives money to newer religious groups.
  

• Con 1 - you pay for people who don't believe as you do.
  

• Con 2 - any minister gets the same amount of money. Bishops are not highly motivated to because much administration is done by state. Not enough priest, deacons can be 'ministers of religion' (non canonical term), but not a family salary. Laypeople also since 1997. Religious market - some say that competition leads to quality.
  

• Con 3 - all paid offices are enumerated in law. E.g. you can't have a new ministry, youth minister, etc. It makes it static.
  

2. Intermediate Level of Financing - Kirchensteuer - church tax. There are churches that levy taxes for their members. The state just administers and enforces - which is important. De facto becomes a state tax. Very high tax 7-9% of tax due added to income tax. Makes rich churches, e.g. Germany v France. The system is in crisis - politically it will survive; though people have tried to abolish it. Especially when the unification tax was introduced. You can leave the Church Kirchenaustritt you then are free of the tax. There is no substitute tax. So 200-300,000 people a year take the option. Catholics theoretically can't leave though administrative act (only by crime or heresy). So civilly out of the church, but canonically not out.
   

• Pro 1 - gives lots of money to church
  

• Pro 2 - you pay only for your own church, but you don't pay other religions as in Belgium
  

• Con 1 - payment of tax is based on membership - static approach. Membership is seen as eternal - Life isn't as static, life was shorter and more predictable when the system was developed.
  

• Con 2 - if no income, no Kirchensteuer. makes a church of the poor. Generally the church likes the poor, but needs the money of the rich.
  

• Present also in Denmark and Austria (though more clumsy system)
  

• E.g. Italy - indicate yearly their religious choice (for tax purposes) 0.8% to church. It can be choice for any group that has a contract with the state. Otherwise it goes for 'good works' of the state. You pay anyway. Can't become rich by neglecting the church. Choice is not tied to baptism. More fluid than German system. Disconnects actually membership - so it is a modern system, seen by many as a model for the future. Institutional support for the financing of religion. Budgeting is more difficult because of uncertainty. Also churches are advertising to get those tax dollars.
  

• The way the model is worked out in Italy there is an advantage to the Catholic Church - if people don't choose, then it goes proportionally as the choosers. E.g. of 100, 40 choose, 36 for catholic. I.e. 90%, so 90% of pot goes Catholic. Spain has a small difference that makes a different.
  

• All the tax money is counted, and the percentages are taken, so the rich choices aren't worth more or less. So advertising goes to rich and poor.
  

• Hungary also uses, but the individual chooses destination of 1% of the tax.
  

• Italy seems chaotic, but it is actually quite well worked out. Not entirely fair because of the need to make the contract with the state. Italian system is 'state tax' but German system is 'church tax'.
  

• It isn't direct payment, but there is state administration.
  

3. Indirect Financing - e.g. Netherlands looks most like the US. In the early 80s there was an ongoing separation - by payment of one time payment. E.g. free postage. But this was seen as hybrid system. Church schools are fully subsidized by the state - and subsidized quickly. Social activities also subsidized. Churches can get money for social activities - unless local policy prohibits. They have only freedom of religion, and so money is given to social events and activities because the church is seen as important for social cohesion. For the average diocese gets 50% of money from Church Balance - an annual appeal. The dutch do this in the Netherlands, but catholic countries don't do it. Differences from year to year is very small. Another important part comes from their own property - no nationalization of church property. They also developed a better policy and industriousness. Real business people run things. Belgium Church CFO is honorary.
   

Overall and Trends -

• 1997 Amsterdam treaty - no immediate need for uniformity because the treaty left it to religious financing states.
  

• Easiest transformations are tweaking the system - because tradition and history is embedded in the system.
  

• Trend is more toward disestablishment - Greece can no longer have religion on identity card.
  

• Also the former soviet states are choosing a more US economic system and so they are also moving toward the US church financing.
  

• Degree of integration of the EU will also affect this, especially on the level of taxes. EU tax on certain matters. Rich states pay for poorer states. Then they become rich again. But also the poor of the rich states are giving money to the rich of the poor states. But if it goes down to the level of citizens.
  

• Static systems will have to endure more rocky roads. Germans were against greater integration because they won't get their 'good' system. 'non competency' of the EU on matters of religious financing.

Limits of Religious Freedom

How far can groups go in self-organization - how nasty can they be in the name of God? Can a judge intervene to stop unjust procedures. To protect members against religious leaders? This can be problematic because without religious freedom we wouldn't have found our other freedoms. Seen in two cases:


• Evolution of jurisprudence in Belgium - There is lots of autonomy for religious groups. All of 19th and most of 20th century a secular judge controls church decisions only in a formal way. Did the competent authority make the decision? Stages:
  

1. Fully Formal Priest is fired - did the appropriate authority do it? e.g. the bishop. Not at issue: did the bishop follow his own procedures. Respectful to religious freedom, but also safe, because you don't have to go into the whole legal system of the church. Another case of a bishop who went mad and was dismissed by Rome but refused to leave. Court said done properly. No crying in baseball – so no questioning a referee’s call or the procedures.
   

2. Formal + Procedure. Later there came the right to defend. Patere legem quam ipse fecisti follow the law that you issued yourself. Taking the church at its own word. So you have the freedom to do it yourself – make more procedure, but you have to apply it. The more detailed procedure you make, the more you bind yourself.
   

3. Trend Make interal rules comply with Human Rights norms. Diocese of Tournai. Pere Samuel Boniface officially parochial vicar. In fact he was charismatic; exorcisms, levitations. Bishop talked and talked, made his move too quickly. Fired Pere Samuel. He wrote a letter to Minister of Justice in Belgium – take him off the payroll. Bishop didn’t follow procedure – just went straight to payroll. Procedure was entirely neglected; radical non-application of canon law. This then influenced secular judges. 1st Charleroi Bishop won. Appeal: Tribunal of Mons – unacceptable: no procedure at all. 1. Right decision maker. 2. He didn’t follow procedure. 3. They also said the procedure should be in accord with 6.1 of EUCHR – the basic procedures of due process. Requires minimal quality standards of church procedures. The RC church has a long tradition that can handle it. But a small group would have a much harder time with it. After this, cour de cassion, Belgian supreme court. Question presented: Appeals judged according to the law? Supreme Court doesn’t decide, just Formal Control: was it correct? According to law? They accepted 2nd step, but not the 3rd. Compulsory application of EUCHR was against the internal autonomy of the religious group. Then went to Liege – followed Mons – “even religious groups internally have to follow EUCHR. Supreme Court – en banc 2nd time is binding. Then the 3rd position was rejected – but the second: formal+ was followed.
   

Procedures are often the first field where a secular judge may want to control what a church does. Procedure is a familiar field. Later discrimination of women: trickier.


Neutrality Procedures aren’t always theologically neutral. Judges may be too confident. Absence of separation of powers. No independent jurists. According to self-understanding of church this is because divine law is involved. Apostolic succession from full power to full power. It is a choice: theological principles embedded in procedures, or the value of individual rights.


Individuals There is a greater inclination to protect individuals. Previously there was more inclination to intervene in the control of power and state vs. church. Protection of citizens was the source of separation, but at that time there was independence within the group? But now there is increasing attempt to intervene on behalf of individuals vis-à-vis the church.


Balance: there is not full religious freedom in the church. But there should be some freedoms.

1. Pellegrini v Italy 7.20.2001 – EU Ct of HR –

Case shows how secular courts so easily make value judgments. Eu Court member states are parties of the cases, e.g. Pellegrini v. Italy.


Facts & Procedural History Pellegrini married a man in 62 to Gigliozzi. In 62 you still had concordat between Italy and Holy See – church marriage was also civilly valid. Marriage broke down. Ms. Pellegrini got separation bed and board: separatio imunente vinculo from church. Civil Court of Rome gave her 300,000Lire ($200)/mo. Mr started annulment procedure – if invalid, and it is exequatur, so no marriage then no allocation. Lazio church court, the court summoned her – she came without attorney. Learned there of annulment. Used grounds consanguinity in 3rd degree (grounds in 1917 at time of marriage, but not grounds at time of case – suspicious). During the investigation – didn’t know any more if she asked for dispensation – might have, then marriage would be valid. Lazio invalidated. Ms Pellegrini appealed to Roman Rota because –


1. never received copy of decision,
   

2. rights of defense had been wronged,
   

3. no opportunity to defend.
   

At the Rota, she still didn’t have an advocate – came in person formulated remarks within the 20 days, but complained about time. Rota confirmed Lazio. Only one sheet with only decision, no motivation given. Gigliozzi went to Court of Appeals in Firenze to get exequatur to the decision of the Rota – giving it civil effect. Pellegrini protested, but Firenze gave exequatur. Pellegrini challenged exequatur in Italian Supreme Court, stating her rights had been violated procedurally. Went to Strasbourg (commission first at the time), EU Court of HR. Did Italian Court rightly give exequatur? Did Italian Court give sufficient rights of defense? Rights of defense in religious group are different from those of the civil rights of defense. The Question wasn’t whether church rules were okay, but were the procedures sufficiently fair to merit the exequatur? Indirectly the procedure of the church is at stake, but it is Italy that is under scrutiny for its decision. The problem of Italy, the exequatur is given very easily – church is very powerful. EU Court: Italian Court didn’t properly review Church procedures vis-à-vis Human Rights due process requirements of EU. Three reasons given:


1. In a normal adversarial procedure every party has a right to all documents in the file
   

2. The parties can discuss matters – court can’t prohibit discussions.
   

3. At any stage of the procedures parties have a right to an advocate – have to mirandize.
   

Exequatur shouldn’t have been given – Italy lost the case, not the church, but because Italy accepted Church procedures too easily. But who really lost here? Then it says the standards of Roman Rota in this case weren’t good enough to meet Human Rights standards of EU. Another element that could solve this. An internal Italian law could avoid this problem by maintaining financial obligations even after annulment Italy attempted this but thus far it has not been achieved.


Conclusion – differences


1. the direct intervention in church procedure or
   

2. exequatur examined. The exequatur case goes deeper into the church procedure. But both cases judges are reluctant to go into matters of church decisions. There is reluctance to actually judge the internal procedures. It also exists in universities, etc. But increasingly there is the idea that religious groups should incorporate this right of defense. Churches aren’t as autonomous. Legally they are quite autonomous, but morally and publicly there is a move to limit these internal rights.

Contractual Religious Freedom

Seems absurd because it is part of public law. So the link to private contractual law is a bit bazaar. But this may be an issue of the future. In the past when religious freedom was elaborated, it was in a millieu of competition. But the situation is becoming more collaborative. This places the ancient discussions in a different situation.

• Why
  

  Crisis regarding human rights and the role they play in society.
  

• until several years ago, people were generally favorable to human rights. Seen as pop, liberating. It was a guarantee against authoritarianism. Governments fostered human rights. Law of religious freedom abroad in the US in the implementation of foreign policy.
  

• then there came a crisis in many countries
  

1. 9/11 made religion and religious freedom appear more dangerous and security became more important than religious freedom. Some argue that giving religious freedom will foster security.
   

2. With the elaboration of a solid multicultural society in Europe, they gradually became aware of the culture and faith tradition of northern Europeans. First they were guest workers, with needs for jobs and heating. But low education of immigrant children was less at the forefront.
   

• Imams without links to western culture was a problem
  

• there was a failure of integration and the first hesitation about human rights.

Contractual religious freedom could be a solution along with other strategies

1. Definition of Religious Freedom first problem is to define religion in a sufficiently narrow way - but defining is excluding. Scientology is often defined out of religion. Germans excluded the commercial activities of Scientology. But what about the monks who brew beer. Colcianni - religion is what people say it is. Mayor of Brussels said I don't want Scientology in my city - but this is hard to match with religious freedom, unless you define Scientology as a non-religious group.
   

• distinction of cults implies that you can define religion, because it is a pathology of religion. You can limit a group that is not a religion. If on the other hand, a group is in fact a religion, it may still act in criminal ways. In this case, it would be possible to punish the criminal activities.
  

2. Extend Limits on Religious Freedom You could make more laws limiting religious freedom. Strasbourg allows a lot of freedom to states to limit religious freedom. Supreme Court makes freedom of religion uniform around the US. However, in the EU, states can have differing types of religious freedom. In Turkey they said that a woman with a headscarf could destroy democracy, not a man with a gun, but a woman with a headscarf. People are arguing for more articles limiting religious freedom in EU Convention on Human Rights, Article 9.2.
   

• Brigham Young Law Journal 2004. Silvio Ferrari explores this, moving e.g. from public safety to safety.
  

• Those who brought down the twin towers wanted to destroy freedom. But if we protect ourselves too strongly against this mentality, we become like them, and they win.
  

For these reasons - EU may bring another model: Layer one is religious freedom and layer two relationships between church and state. So let's make use of layer two through some contractual relationships.

Contractual Relationships Bring more religions into the church financing schemes. The financing would be a consequence of quid pro quo - do ut des. Some folks object because it endangers religious freedom. But this is a layer two innovation - religious freedom is required to start with.

• Those groups who don't want the financing are free to work without it.
  

• If you do want money, there are conditions applied to it. So those who receive money accept some obligations in society.
  

• Elements in the contract:
  

1. Practical and financial issues. If you want money your organization has to be transparent in its finances. If imams are paid by the state, they have to fulfill educational standards in our country. The religious elements can be controlled by the religion, but the philosophy and culture of the country could supplement the education. This could underhandedly support the 'free' religious leaders who are not beholden to the state.
   

2. Theological Issues
   

• Can groups discriminate and still get money. E.g. non-ordination of women. This becomes more difficult, because most groups historically discriminate against women. But is this promoting either freedom of religion or non-discrimination.
  

• Or you could require groups to let people change religions. The EU Convention first gave the right to change religion, then they went to right to adopt a religion (but once you have it, do you have to keep it), then the right to have a religion is more passive (could mean you are born in a religion and you remain there). In recent international documents, Islamic states will let you have, and perhaps adopt, but not to change. So the tie to financing to the religion letting people out.
  

3. Relationships Among Religious Groups Require that they are fair with other religious groups. Even if you are religiously opposed, you still have to be civil.
   

• E.g. Proselytizing is part of religious freedom. These can be done in various ways.
  

• E.g. If you convert you get one year scholarship in the US. Legal, but not fair. 7th Day Adventists made guidelines for fair proselytizing. That document is a limit to religious freedom. But a government could impose it on groups as a condition of financing.

• Will this work?
  

• State problems
  

1. Equality - with whom will you collaborate, and further, who will collaborate with you.
   

2. Truth - Most religions think they are the only holders of the truth. But those who have the truth and those without the truth have the same rights in the state. The supremacy of democracy over philosophy. This tension remains
   

3. Religion is Less Religious than we Think In tougher times it becomes more necessary to have a religion
   

4. Conservativism State is for a long time an advocate of human rights, but this is threatened by conservatism. EU Convention recognizes right to marry, but what about homosexual marriages, will the convention protect them. The notion of equality has become stronger and stronger over time.
   

• Church problems
  

1. Church sees this as abandoning religious freedom. It is not entirely true. Ius and exercitium ius. Right versus the exercise of the right. When a religion concludes a contract, it limits the exercise of a right, but they suspend the exercise of a right. E.g. proselytizing in a brutal way.
   

2. Acknowledging relativism. The truth has yielded to relativism. Can we instead acknowledge realtivism without abandoning principles?
   

3. State strengthens religious leaders since it is they who will conclude the contract. The principle is the same for all groups, the state needs an interlocutor to conclude the contract. But this is not the sociological reality in some states and some religions. It is on the wane. People are less willing for the bishop or pope to represent them today, than in past times. This structure builds on the formal power of leaders, but maybe the people won't follow them. What about distributing money to religious activities, not just leaders and their structure. In 20 years it will be difficult to finance groups who are not fostering democracy or freedoms.

Contractual religious freedom leads to some control. This could lead to more security. Also the religions who contract are improving social cohesion. It provides an intermediary between the state and the individual. As the states weaken, the individual is closer to the International leadership EU.

• relativism - people don't accept any absolute truths. Most religious groups believe in their exclusive truth, but fundamental rights are in tension with this.

Financing of Churches and Religious Communities

prof Michel Ryfcozcki mirynk@prawo.uni.wroc.pl

Financing of church is of interest to both church and state - res mixta. There are different models in the EU.


Declaration No. 11: (Treaty of Amsterdam 1997) Declaration on the status of church and non-confessional organizations


EU respects and doesn't prejudice the status under national law of churches and religious associations or communities in the Member States. Whatever you have in church state relations is fine.


EU also respects the status of philosophical and non-confessional organizations.


This becomes article 15b of the EU Treaty 1. EU respects and does not prejudice the status of churches 2. EU respects non-confessional organization. 3. EU will maintain an open dialog.


Funding models:


1. directly from the state (Churches are like opera Ivan Iban) Belgium, Estonia, Slovkia (old polish system - to control)
   

2. through church taxes - Germany and Sweden 8-9% 320-360eu more for the church. If you 'drop out' then come back, you don't owe back taxes. Denmark, you can opt out but you have to go through the church pastor. Sweden: 80% pay the tax, but only 30% go to church regularly.
   

• church tax like instruments - Italy, Spain, Hungary, Poland, Slovakia - one % of tax due (40eu) to the place you choose. This either goes to state, or to the group you choose.
  

3. through tax exemptions - US
   

4. through tax deductions - US
   

5. through insurance schemes
   

6. Not financed - Ireland, France, Cyprus.
   

Church tax versus church fee - tax is given without any return benefit. fee is something you get back.


France - exception is Alsace/Mosselle and two others go by German law, of 100 years - president appoints bishops for Metz and Strasbourg. President of France is honorary canon - so can't have a woman there.


Cyprus - 5 bishops and archbishop. Church simply refuses to pay taxes. Archbishop has more land and power than anyone else so the state can't demand it.


Poland - main sources of law: Constitution 1997, Concordat 1993, Statute on freedom of religion and conscience 1989. This statute was produced 2 weeks before the elections lost by the communists. Statistics: 90% baptized. 40% go to church. 15% orthodox 5% Jehovah Witnesses 4% Ukrainian catholic. 2% Lutheran. 0.5% Muslim - some there 600 years.


Article 25 of the Polish Constitution 1997: 1. Churches and other religious organizations shall have equal rights. 2. Public authorities impartial. 4. Relationship between church and state based on mutual respect and autonomy. All churches have the same rights, even with the overwhelming majority. 4. Concordat recognized. 5. Relationships with others is governed by agreements. You need 100 people for a new church. Churches are under ministry of the interior. Minister checks to see it isn't against public order and morality.


Financing: Article 10 of statute of 1989. Church isn't financed by state. They get money from collections, from quasi fees - Christmas carol (kolenda) after Christmas priests visit people in the parish. You can refuse them but you 'should' receive them. The idea is 10-40 minutes to talk with priests. A dialog on equal footing. But depends on both sides how it goes. After a prayer at the end, you give some money. Most say, 25 to 33% of the annual income. It should be anonymous but some say they put them in order, in order to see who gave what. Priests as teachers of religion in school so that you get paid.


1% church tax. In Poland you say who you are financing. The government doesn't see your tax declaration unless it is audited. Church fund. Church organization gets the tax, not church itself.


Church fund created 1950 pays insurance schemes and renovation of old buildings. But there was not budget.


Restitution of property. Churches have never been major landowners, only nobility owns land. Nobility couldn't give land to church. Property confiscated after World War 2. No general privatization laws. Now the state is happy to give the buildings back because they are quite old. If both Catholic and Orthodox claim same building, then they keep it till the churches work it out.


Taxes paid by clergy - Priests don't get remuneration from the state. But incumbents and vicars have to pay flat quarterly tax. up to 300 Euro quarterly. Non-majority clergy get cut rates.


General Conclusions


Silvio Ferrari - all member states of EU have some equalities. Chaplains are basically paid by the state (except hospitals), the preservation of historic places of cultural importance is financed by the state; the teachers of religion if allow in public schools, are paid by the state, even if they are appointed by religious authorities. Priests cannot teach in France


Religious schools even if financed by state must respect state curricula, chaplains in the army should be patriotic, the monuments financed from public means must be open to general public.


Financing of Muslim communities - financed from abroad so no way to controlling them, if state will finance them, it may be a way of social control. But there aren't enough Arabic speakers to exercise control.


Expected evaporation of welfare state will result in the situation which currently exists in the USA Churches benefit mainly from tax deductions and exemptions.


If you finance churches and religious communities, it is not because of who they are or they used to be but because of what they do. We have to be careful - man is much more than a money making animal.

Religion and Rule of Law in Southeast Asia

American NGO organized Religion and the Rule of Law in Southeast Asia conference in Vietnam - and also they attempted to influence the discussions. A limited number of countries with a specific tradition, but also variety:


• Thailand - Buddhist, with Muslim minority, important in the southern part where they are the majority. (Philippines are similar with Catholic majority with parts of Muslim concentration.) Thailand wants to establish Buddhism as official religion, particularly because of problems, and religious diversity.
  

• Malaysia - highly complex legal situation. Population 26 million, divided in two groups: Malays Muslims 58% Others (mainly Chinese) 42% (23% Buddhist 11% Christians, etc.) Muslims have political power and Chinese have money. These majorities tend to perpetuate themselves. Split continues to exist regarding religious freedom: freedom of Muslims is different from the freedom of others. Constitution enshrines two types of religious freedom:
  

• For Non-Muslims: Every person has the right to profess and practice his religious and subject to clause 4, to propagate it (i.e. you cannot proselytize Muslims). No one can be compelled to pay for religion other than his own. Cannot use religion to violate public health, public order. No person shall be required to receive instruction in, or take part in worship of a religion other than his own. (So can you be forced to take part in your own religion.) Once they become Muslim, there is no way out.
  

• Muslims: Islam is the religion of the federation. This is far-reaching for only 58% majority. Muslims cannot change religion - actually, this is left to Sharia tribunals who will hardly accept it. Apparently due to decentralization, in a few situations people can in fact leave - if the Sharia tribunals are liberal.
  

• Lina Joy (Lelani) 30 May 2007 - in the courts more than 10 years. Born Muslim of Malay parents, so she is registered as a Muslim. In 1997, she asked for change of name and religion - 1999 at high court she got change of name, but not religion. 2000 she got a 2-1 decision against Lina Joy in the court of appeals claiming lack of competence: sharia court required to adjudicate apostasy. 2-1 decision in the federal court stating to leave a religion you must follow the rules of the religion itself. Dissent said that the fact that Islam is the majority religion doesn't mean that the rights of others can be overlooked. All persons equal before the law - should apply to religion as well. Given that apostasy is criminalized in some states, it is confusing the law - there should be national uniformity. Diversity of religion freedom is problematic. You could leave e.g. marriage to the religions (though it's not a good idea), but it is hard to have 2 forms of religious freedom. Against religion freedom and against equality of citizens. This leads to potential problems and political tensions and instability.
  

• Vietnam - Not super religious (common in the east). Buddhists and 10% catholic with high visibility in some areas. Socialist country though they accept a market economy. Dictatorship which calls itself socialist. Religious situation is evolving well. The problem is the penal legislation regarding religious activities. Any persons who oppose the people's administration by undermining the implementation of social economic policies shall be sentenced 7-20 years. It is too broad and harsh - inconsistent with the principle of legality. 5-15 years for undermining the unity policy of the country: e.g. sewing division between religious people. Forbidden to conduct propaganda against the socialist government of Vietnam. Performing superstitious practices is forbidden - what I don't believe is superstitious. Superstition is fortunetelling, medium practices or other forms of superstition: .5-3 years. Definition of religion can be the first place to look for discrimination. US religious freedom abroad act - (E.g. To be a part of EU, Economic match and Human Rights standard). Elements of foreign relations. A weakness is that there isn't a report on US.
  

• US influences in the conference 20 Americans: influence even in the topics chosen: charitable and economic activities of religious groups, includes two visions on religious freedom from the US:
  

1. religious marketing - average American household gives more easily to churches than to others 45% give to religion 22% to education and 11% to culture. They also assumed when people are religious, they are usually more generous
   

2. charity is very important; this is also somewhat dangerous because social justice is no longer fostered by the state. E.g. pensions in Europe, there is the promotion of personal insurance which may undermine social security.
   

• Every religion needs some financing - state must have a way to provide or allow.
  

• Religion and education by Wexler - BU SOL. Advocated teaching religion at school, but in a meticulous way. US standard is no religion in school. Teach something about religion in a neutral way in civic education. This reduces religion to ethics, making of good citizens. Better to deal with religion as an integral part of culture, identity. He proposes a choice for nationalism (treat religions in proportion to their presence in the country) and cosmopolitanism (treat religions in proportion to their presence in the world - scrupulous neutrality). Education is important, however a method needs work.
  

• Religion and security - strengthen religious freedom may strengthen security, but some repression is difficult to avoid.-
  

• Cole Durham - registration issues - e.g. leading to legalpersonality. Steps: Register as religious group. Organizing as a legal entity. Often this issue is left to local administrations where local prejudices may play out more harshly. (E.g. no mosque in Slovenia because no way to get the permits.) Institute for Global Engagement - Institute for Religious Studies in Vietnam. This goes beyond discussion among and for academics.

European Consortium for Church and State Research

ECCSR Annual Congress - National legal decicions regarding the freedom of religion and other convictions, referring to the European Convention for the protection of human rights and fundamental freedoms (ECHR) - Nicosia, Cyprus, 15th-18th November 2007

• Democratic deficit. Should we take the European Convention and Court seriously. No election, no army - Gonzales.
  

• Tension between European Union with 27 States and Council of Europe with 47 states.

  European Union	27 States	EU: European Legislation	Luxembourg Court
  Council of Europe	47 states	European Convention on Human Rights	Strasbourg Court

• Difference of opinion between EU and Council of - EU accepted article 11 of Amsterdam Treaty 1997: Legal status of religious and nonconfessional religious groups will remain a national matter. This will become hard European law. This was promoted by the Germans to avoid the French separationist model. But this national status with deep historical roots and not always compatible with equality, e.g. national churches. But the EU Court in Strasbourg tries to apply rights equally on all groups in a state. The Amsterdam treaty by focussing on national regulation keeps alive historical inequality. It is solved by each group moving a little toward the middle. At a minimum there is a need for transparent criteria. A little inequality is tolerated by Strasbourg and inequality isn't allowed without justification.
  

• Influence of the Court in Strasbourg on the Netherlands. Netherlands has always been very open to international elements. '''Article 120''' of the Constitution: the constitutionality of acts of parliment and treaties shall not be reviewed by the court. This was a choice for the democratic process. There is currently a proposal to change this. Article 93: Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published. Direct application of treaties in Dutch Courts (self-executing). So that if you invoke the Dutch constitution against a law, you will loose, but if you invoke a treaty against the law, then you can win. (Dr. Sophie C. van Bijsterveld, Faculteit der Rechtsgeleerdheid, Universiteit Van Tilburg, Le Tilburg, Netherlands)
  

• Gradually courts talked about the convention. Although the idea that it can be invoked is from the 60s, it was in fact not invoked. First because it was new and unknown, also there wasn't much jurisprudence from Strasbourg, finally there was the general principle of slow acceptance.
  

• First direct case was in 1960. But there are also indirect applications. Fair, reasonable grounds were first applied. Judges used european jurisprudence was used to balance local views. Second, european jurisprudence was used to develop exceptions to law, particular criminal law.
  

• 1960 Hoge Raad - High Council - Dutch minister of religion had conscience objection to pension tax because his church should supply. Court didn't accept because the statute was facially neutral.
  

• 1962 Constitution of 1948 - procession ban said that outside manifestations of religion were allowed only according to law - basically against the catholics. A priest organized a procession - was prosecuted and invoked article 9 of the European Convention. European convention was applied and it corrected the local injustice.
  

• Various cases concerning ritual slaughter of a goat at home. Public health gave reasonable cause to limit religious freedom.
  

• 1968 A Quaker held a protest march without applying for a required permit. He had not made plausible that his opinions necessitated protest without the permit. Analysis of his intrinsic reasons. (E.g. Mayor of Brussels prohibited a protest of Islamization of europe - which he could do if there was danger of violence. But he forbid it because he thought that it wasn't a good way to solve the problem.)
  

• Jan 2007 - Church of Christ and Holy Mary - (CEFLU) sacrament was drinking tea laced with opium. Court of first instance said it is a real church, doctrine is a religious belief, and this is the chief sacrament. Given all this Article 9 protected it. Opium act was less important than religious freedom. Overruled on appeal and sustained in the High Court. Decision based on the necessity of Opium Act for preserving public health.
  

• Generally Article 9 cases are not successful. An article 10 case was successful however. 1982 decision of administrative tribunal: A market vendor who had a choice between 1. personal insurance 2. join a group with collective insurance. He had religious objections to insurance. Court agreed. However, the consequences are for the third party creditors of the vendor. So in one of the few cases where it successfully invoked the European Convention was invoked went to far.
  

• Councillor in the army was refused on humanistic motives - it would have been allowed on religious motives, so the court allowed it here too.
  

• Religion of one spouse prohibits divorce - this couldn't be invoked in civil court against civil divorce.
  

• Religious reasons for not taking certain classes - such as sports, etc for Muslim girls especially.
  

• Conclusion for the Nederlands - article 9 plays a role, but an appeal to article 9 is not often successful. Long time members of Council of Europe have law that is more compliant with European Court Jurisprudence. Newer members have more disparity in law and practice between national law and european law.
  

• EU is not a state, but it is not a closed system, the European Convention isn't going for uniformity, but is trying to set outer limits: this is going too far. US supreme court is more of a close system. It is easier to export - it's openness and variety makes it more amenable of application in young democracies.

Religious Symbols in the Public Sphere

Introduction: Nov 27 - Gent (2nd largest flemish city after Antwerp) 2nd largest political majority (Liberals and Christian Democrats and Vlaams-Belang) voted against women working for the city who are in touch with the public (the audience) wearing a headscarf. Distributing passports is clear, but a gardener? Who is in touch with the public - also forbidden are all religious symbols. France forbade ostensible sign. But this excludes all symbols. They are following a trend already implemented in Antwerp in spring 2007. This shows a growing intolerance with relgious symbols.


Discussion


1. Religious Ceremonies in honor of the state: e.g. Te Deum, it is a religious ceremony organized by the church in honor of the state in a church building, they invite the ministers of state. Two days in Belgium: 21 July (National Holiday) and 15 November (feast of the King). After 1990 election, a goverment was elected without any Christian Democrats. Te Deum was challenged, and it was decided they would attend the Te Deum in July, but parliament organized an alternative on November 15.
   

2. Cross in Public Buildings - E.g. in many countries there was a tradition of having a cross in courts. In Belgium still present for a long time. 2000 question was asked by a Liberal parliamentarian of the Liberal minister of justice: given the evolution of society: pluralistic and multicultural, these symbols are no longer acceptable, instead justice should be as neutral as possible. Decided to take them all away except objects of art - but how is art defined. In letter to the administration, he said take the cross, but if it is a painting, it should be described in detail and a decision will be made. 2003 an incident in Metz in France where the president of the Cour d'Assizen was in the room with a large painting of the Crucifixion. When a sentence was being issued, the president of the court issues a moral statement. Your example should be Christ on the cross - in the painting.
   

3. Bells of clock towers and carillons - concern raised about the noise. Tilburg has a discussions about 7:15am bell. 5000 euro fine each day bells are rung. But he challenged this and won in court. In 1883 there was already a discussion of stopping bells in Belgium and instead there should be a neutral sound.
   

4. Religious Buildings have more and more difficulties as urbanization becomes more important. 100 years ago, you could build anything, anywhere. Today we have norms, location and style. This could cause indirect discrimination: does a mosque fit in? what about a church? In Delft there is a church zone.
   

5. Presence of Religious Symbols in the Public Sphere - Christmas, Easter, etc. What is cultural and what is religious? It is difficult to determine, because religion is also culture. US case Lynch v Donnelly 1984 - Nativity case, was this establishment? No - historical roots of cherished event. Free exercise jurisprudence in the US 1997 Please don't wish me a Merry Christmas by Stephen M Feldman, a Jew on history of Church State relations in the US, The book highlights revitalization of religious meaning in symbols that have become secularized in their meaning.
   

6. Headscarf - sign of individual religious freedom rather than institutional religion. But it is visible. Court leaves a lot of margin of appreciation to the states, so reasons of security, public order or health could easily justify regulation. However, the EU court has had deference to states and their headscarf regulations.
   

Dahlab v Switzerland 15/2/2001. Facts: Miss Dahlab was a Swiss girl who converted to Islam and married a Muslim. At the time of her marriage, she had already worked 2 years in a public school. At her conversion she began wearing a headscarf and continued to teach 4 years without incident. Then she was forbidden: wearing a headscarf is not compatible with neutrality - no complaints by students or parents. Notwithstanding the weak facts, the EU Court accept the firing: the purposes in 9.2 of the European Convention can be interpreted broadly by the states.


Sahim cases 29/6/2004. Could she take her written med school exam in a headscarf. This was against Turkish secularism of Ataturk to ensure that Turkey would become a modern western state. EU accepted Turkish courts invocation of the principle of secularism. Universities can use necessary means to enforce secularism. Seen as a success by Turkey, but it gives a debatable picture of the strength of the turkish democracy. Girls with headscarfs can destablize the government, not men with guns. Court said in #108: Extremist political groups have the intention to transform society into a theocratic state. But would this case play out the same in a western european state.


7. Two presidential addresses - two extremes in religious neutrality.
   

2003 Jacque Chirac - The school is a sanctuary of the republic. Strict neutrality needed: no visible religious signs.


2004 Johannes Rau - active pluralism: neutrality of the state nevertheless invites the public participation of religions. Rau spoke in favor of multicultural society: Not good in certain landen to prohibit religious symbols at schools: this is not compatible with religious freedom and opens the gate to further restrictions. He was trying to counterbalance German populists. A few months earlier had allowed headscarf prohibition for teachers only if it was narrowly tailored and legal basis.


Religious freedom may thus be achieved by saying all religions are allowed in the public arena - we see the variety and just don't promote one over the other, but they shoudl be visible. On the other hand, religious freedom may mean that no religious symbols are allowed in the public arena, religion is completely relegated to the private sphere.

New Religious Movements

This will remain an issue in the coming years. May be called sects or cults. Definition of sect depends on the definition of religion - but this is difficult. Divinity, ceremony, ethical system, belief. Denaux - sect is a group composed of individuals sharing a philosophical or religious conviction showing several characteristics: 1. authoritarian leader, 2. control of members, 3. exportation and abuse of members (stop school, overwork, no way out), 4. relationship of the group with with external world (isolation - we are good, they are bad.), 5. debatable recruitment strategies (manipulative). Sectarian characteristics are defined, but it is more difficult to say this particular group is a sect. These characteristics are also found in other groups. Strategies: is there a necessity of special regulation for sects or can existing law supply, e.g. if illegal behavior comes, can it be addressed on criminal terms.