Law, Religion, Constitution

Freedom of Religion, Equal Treatment, and the Law

W. Cole Durham, Silvio Ferrari, Cristiana Cianitto, Donlu Thayer

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780367601478
• eBook ISBN: 9781317107378
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

What is the place assigned to religion in the constitutions of contemporary States? What role is religion expected to perform in the fields that are the object of constitutional regulation? Is separation of religion and politics a necessary precondition for democracy and the rule of law? These questions are addressed in this book through an analysis of the constitutional texts that are in force in different parts of the world. Constitutions are at the centre of almost all contemporary legal systems and provide the principles and values that inspire the action of the national law-makers. After a discussion of some topics that are central to the constitutional regulation of religion, the book considers a number of national systems covering countries with a variety of religious and cultural backgrounds. The final section of the book is devoted to the discussion of the constitutional regulation of some particularly controversial issues, such as religious education, the relation between freedom of speech and freedom of religion, abortion, and freedom of conscience.

PART I
Religion and Constitution: Main Themes

Chapter 1
Religion and the World’s Constitutions

W. Cole Durham, Jr.1

Introduction

At the outset of these reflections on ‘Religion and the World’s Constitutions’, it is appropriate that I express appreciation for the foundational work of Professor Silvio Ferrari in organizing the International Consortium for Law and Religion Studies (‘ICLARS’).

As I thought about the extensive work that Silvio has done over the years, my mind went back to one of my early experiences with him. We were in Romania. It was the conclusion of a long day at a conference on religious freedom issues. Because relevant legislation was pending in the Romanian parliament, a small group of us were invited to meet with a group of senators responsible for clearing all legislation that might have impact on Romania’s accession to the European Union. We expected only a short courtesy visit, because the senators had just finished a lengthy meeting on other matters. In fact, they spent over an hour with us. It fell to me to introduce the group and make some introductory remarks about religious freedom principles relevant to the legislation. I could see their eyes glazing over, and the unstated thoughts: ‘One more irrelevant American.’ At that point, Silvio came to my rescue, indicating that while there are significant differences between United States and European approaches, there are in fact core principles that we all share as a common heritage, and the principles I had been addressing were among those on which strong consensus exists.

That was Silvio at his best: recognizing what had to be said; saying it effectively and concisely; and identifying the consensus ideas that tie all of us together. I thank him for that late afternoon, and for countless other moments over the past two decades I have known him when he has been the leader quietly and precisely identifying common principles and finding the way we could go forward together.

I hope that in a small way, I can continue that tradition in this chapter, which is intended to serve in part as an introduction of the general theme running through this volume. As I have reflected on the topic of religion and the world’s constitutions, I have been conscious of the many ways that ICLARS, with its focus on law and religion studies, contributes to understanding of this impossibly broad theme. I realize that my experience with Silvio has been replicated many times over through collaboration with the wonderful people working in the law and religion field. Few fields are blessed with so many experts committed to working together to optimize contributions for the common good.

Law and religion embraces several sub-disciplines: (1) comparative law study of the relationship of religion and state institutions; (2) defense of human and constitutional rights to freedom of religion or belief; (3) exploration of the relationship between religious and secular legal systems, both from the side of law and from the side of theology; (4) empirical research on the place of religion in society; and (5) other salient areas where law and religion interact (e.g. law and theology, legal history, sociology of law, legal philosophy). No one is capable of mastering all of these sub-fields. My hope in this chapter is to raise issues urgently needing the best work that each of us, and others we know, can provide.

The Constitutional Setting

The basic constitutional and international human rights setting is familiar. By the middle of the twentieth century, freedom of religion or belief came to be recognized as a fundamental human right—at least in theory, if not always in practice. By the time that international human rights were being codified in the aftermath of World War II, freedom of religion or belief emerged as an axiomatic feature of the international human rights regime, memorialized in Article 18 of the Universal Declaration of Human Rights,2 Article 18 of the International Covenant on Civil and Political Rights (ICCPR),3 in the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,4 and in a variety of other international instruments.5

Most modern constitutions have provisions affirming the right to freedom of religion or belief. This right is recognized in the overwhelming majority of the world’s constitutions,6 including virtually every European constitution and the constitution of every independent country in the Western Hemisphere.

While there are of course disputes about the universality of human rights norms, freedom of religion or belief has come to be recognized by most nations of the world (and by most religions) as a principle that has universal validity.7 Constitutions and laws should be construed in ways that respect this fundamental principle, recognizing that although it is universal, it can and should be implemented in diverse ways in different cultural and historical settings. Comparative constitutional analysis can expand horizons, but in itself, it has no intrinsic authority,8 except to the extent it yields insights that are genuinely persuasive to those charged with interpreting their own legal system—i.e., except to the extent it is persuasive to the judges and other officials responsible for interpreting constitutional norms, and to the people (the individuals and the communities) who ultimately judge the judges, constitute the constitutions, and choose their own freedom by deciding how they will rule and be ruled.9

The Right to Religious Autonomy

My aim in this chapter is not to describe in detail precisely how religion figures in the array of the world’s constitutions, but to take one issue I regard as both particularly central and particularly urgent, and discuss how several of our related disciplines may make relevant contributions. The issue is religious autonomy. Religious autonomy as I am using it here is not a synonym for religious liberty in a more general sense, but is a competence of religious communities to decide upon and administer their own affairs without governmental interference. It is in effect a right of self-determination for religious groups.10

The issue is timely in light of a set of particularly significant decisions in the European Court of Human Rights11 and in the the United States Supreme Court.12 Each of these cases (as many like them in courts around the world) raises the question of the extent to which states may intervene in disputes between religious communities and their religious personnel. The U.S. case is representative. It involved a challenge to the existence and scope of the so-called ‘ministerial exception’, which protects the right of religious communities to select, supervise, discipline and terminate religious leaders without government interference. Precisely because this exception raises issues going to the core of religious autonomy doctrine, it has been characterized as the ‘most important religious freedom case in 20 years’.13 The case involved a fourth grade teacher, Cheryl Perich, who had served as a ‘commissioned minister’ at a religious school. Along with the Equal Employment Opportunity Commission (EEOC), she challenged her termination for insubordination and disruptive conduct, claiming that she had been discriminated against because of a disability. Nearly one hundred amici, representing most religions in the United States, filed briefs opposing Perich’s claim.14 In the lower federal courts, Perich and the EEOC accepted the general validity of the ministerial exception, but claimed it did not apply in her case because although she was serving as a ‘called minister’ and had some religious duties, she was only marginally involved in religious matters.

The stakes in the case were raised considerably by the decision made by lawyers for Perich and the EEOC at the Supreme Court level to switch tactics and mounta frontal attack on the validity of the ministerial exception, even though it had been unanimously approved by all the federal appellate courts for a period going back forty years.15 This shift in strategy sought to extend the holding in an earlier landmark decision, Employment Division v. Smith,16 which held that neutral and generally applicable laws trump religious liberty claims. The Smith decision had noted an exception for an established line of religious autonomy cases,17 but the government lawyers in Hosanna-Tabor sought to narrow or eliminate that exception. This line of attack on religious autonomy doctrine was unanimously rejected by the Supreme Court in its resolution of the case, but the full implications of this precedent will necessarily await elaboration in future cases. It is safe to say that this is an issue that Professor Ferrari (and many others in ICLARS) could easily help to resolve; this is not a problem limited to the United States.18

The Topography of Religious Autonomy

The right to religious autonomy raises issues of profound importance that are located at the heart of religion-state relations. At the same time, it is a problem that is richly layered. Working from the ground level to issues of progressively greater abstraction, the initial challenge is coming to terms with what can be described as the factual topography of the autonomy problem. This topography has at least four dimensions.

The first is the horizontal dimension, which begins with the core religious community—the church, synagogue, mosque, the core religious polity—and extends horizontally to controlled or affiliated entities such as integrated auxiliaries, religious schools, print and other media facilities, health care organizations, counseling services, humanitarian aid organizations, and other charitable entities. The horizontal dimension extends from the non-profit into the for-profit domain, since religious communities may choose to organize some profit-making activities to support their organizational missions or aims.

The second dimension involves the vertical array of types of personnel positions, ranging from religious leaders at the top (e.g., those who are understood as having the mantle of religious authority and leadership with the community, such as hierarchical leaders—bishops, priests, pastors, ministers and the like) down through those who are charged with carrying out various other significant religiously significant functions (e.g., teachers, counselors, those who represent the community to the broader public, missionaries, and so forth) and including others who work or volunteer at religious institutions, with varying levels of engagement in religious tasks. The question along the vertical continuum is at what point personnel functions become so secular or so distinct from religious affairs that religious autonomy protections no longer apply.

The third or depth dimension is a reflection of the fact that different religious communities, whether as a matter of religious belief, administrative efficiency, or a combination of the two, configure the various aspects of the horizontal and religious dimensions of religious autonomy in different ways. This variation could be thought of as the pluralistic depth of types of autonomous structures that a society allows, nurtures and protects.

A final dimension is temporal: the nature of the autonomous institutions permitted and pro...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Preface
• Acknowledgments
• PART I RELIGION AND CONSTITUTION: MAIN THEMES
• PART II NATIONAL EXPERIENCES AND CASES
• PART III OPEN ISSUES
• Index