Freedom of Religion or Belief

Heiner Bielefeldt, Erlangen

The Human Rights Approach to Handling Religious Diversity

Safeguarding everyone’s right to freedom of religion or belief is not the only conceivable way of shaping peaceful coexistence in religiously diverse societies. One historical alternative was the search for a theological or philosophical common denominator seemingly running through all major religions or denominations. The idea promoted by Nicolaus Cusanus shortly after the fall of Constantinople that ‘within the variety of rites, there is only one religion’ (religio una in rituum varietate), foreshadowed the various attempts undertaken by philosophers of the European Enlightenment to establish a ‘natural religion’, which they thought should prevail over any remaining denominational differences. In the words of Immanuel Kant, ‘the concept of a divine will, determined merely according to purely moral laws, allows us to think of only one religion which is purely moral, just as only one God’. Another traditional way of coming to terms with religious pluralism was the politics of limited tolerance. It can be traced back to ancient empires, like the Persian Empire or the Roman Empire, which as a matter of prudence accommodated the deities and rituals of subjected peoples. A politics of limited tolerance furthermore characterised the way in which the Ottoman Empire treated religious minorities, while unequivocally upholding the hegemony of Islam. After a century of traumatising confessional wars in the wake of the Protestant Reformation, the 1648 Westphalian Peace and other early modern European Peace Conferences likewise established regimes of limited tolerance, which conceded minorities certain spaces under the hegemony of Catholicism or Protestantism, respectively. This way of handling diversity prevailed for a long time. The Act of Tolerance issued in 1781 by Emperor Joseph II, still upheld the Catholic monopoly of public worship while permitting the followers of other religions or denominations to practice their faith in private.

The right to freedom of thought, conscience, religion or belief (henceforth in short: freedom of religion or belief) is frequently mistaken as a modern version of the two attitudes just sketched out. However, it differs conceptually from both of them. Rather than searching for a common religious or philosophical denominator, freedom of religion or belief does not intend to turn existing differences into a mere ‘variety of rites’, to cite Cusanus. Instead, it appreciates religious and belief-related diversity as an expression of human freedom. Accordingly, freedom of religion or belief aims at empowering human beings to freely find their own ways within the vast area of religious (or non-religious) convictions, conscientious positions, community-based practices, religious socialisation processes etc. Far from making the world ideologically uniform, freedom of religion or belief brings to the fore the existing and emerging diversity of religions and beliefs, provided they are freely expressed by human beings who are the holders of this human right. Moreover, in contrast to the politics of tolerance, freedom of religion or belief does not start from a hegemonic confessional viewpoint. While the politics of tolerance typically granted minorities certain rights under the auspices of a predominant religion, freedom of religion or belief represents a universal right to which everyone can lay claim to on the basis of equality and non-discrimination. And instead of entitling the government to define those minorities who would benefit from religious tolerance, the starting point is the religious and belief-related self-understandings of human beings – and indeed all of them – which the state is supposed first of all to respect.

Freedom of religion or belief follows the logic of the human rights approach generally, which has been summed up succinctly in Article 1, first sentence, of the 1948 Universal Declaration of Human Rights (UDHR): ‘All human beings are born free and equal in dignity and rights.’ It is in this spirit that the right to freedom of religion or belief has been enshrined in Article 18 of the UDHR, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments. The wording of Article 9 of the 1950 European Convention on Human Rights (ECHR) shows a striking similarity to Article 18 of the UDHR, after which it was largely modeled.

However, the actual policies of handling diversity in many countries across the globe continue to reflect traditional or newly-established religious hegemonies. Even at the level of constitutional and legal norms, the rights conceded in that field are sometimes limited to predefined lists of religious options. While in some states only the followers of the monotheistic religions of revelation receive full legal recognition, other states refer to concepts like ‘known religions’, ‘normal religious practices’ or ‘traditional religions’, ‘national religions’, with the typical result that members of less known, new, ‘foreign’ or alternative communities face exclusion or discrimination. The realities in quite a number of countries – including within the Council of Europe – thus remain conceptually close to ideas of a limited tolerance rather than fully endorsing freedom of religion or belief as a human right. In order not to dilute the human rights approach in handling religious diversity, it is all the more important to stick to a clear understanding of freedom of religion, which enjoys the status of a universal right held by all human beings.

Beyond Essentialism and Nominalism: Defining the Scope of Application

Freedom of religion or belief takes the self-definition of human beings as its starting point, thereby exceeding any ‘lists’ of religious options predefined by the state. This naturally opens up a broad range of views and practices for which people may claim recognition under freedom of religion or belief. Indeed, the UN Human Rights Committee in charge of monitoring the implementation of the ICCPR argued for a wide application of freedom of religion or belief. In its General Comment No. 22 (1993), the Committee pointed out: ‘Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed.’ Likewise, the ECtHR has gone in its jurisdiction way beyond the sphere of ‘classical religions’ (whatever that may mean) by inter alia accepting claims of pacifists or vegetarians as falling under the remit of Article 9 of the ECHR.

Not surprisingly, such a wide application has given rise to concerns that it might, in the long run lead to an increasing trivialisation of freedom of religion or belief. In opinion polls carried out in the UK some people have named ‘Star Wars’ as their “religion”, and there are rumours that some coffee shops in the Netherlands would like to rename themselves as ‘religious communities’ in order to sell drugs under the auspices of a liturgical practice. Be that as it may, we certainly face the challenge to avoid a trivialising inflation of demands without slipping back to predefined lists of legitimate religious options. The question is, how to define a plausible way between nominalism and essentialism in the understanding of freedom of religion or belief. In [CAMPBELL & COSANS, 1982] the ECtHR coined a helpful formula, which has provided guidance in subsequent cases. In order for a person’s view to fall within the ambit of Article 9 ECHR, the Court states, that the view must display ‘a certain level of cogency, seriousness, cohesion and importance’. While the criteria of cogency, seriousness and importance imply an existential urge rooted in a profound personal conviction, the element of cohesion requires that the respective position has an impact on a person’s identity in a somewhat coherent manner. Thus, the Court makes it clear that not any position which someone just happens to have today can claim the status of a religion or belief. At the same time, the four criteria remain purely formal and thus open for a broad variety of convictions and practices, religious or otherwise.

Dimensions of Freedom and Criteria for Limitations

Freedom of religion or belief is a multifaceted right. People have the freedom to search for an ultimate meaning in life and to come to most different (or no) results in such endeavours; to communicate convictions, beliefs or doubts openly; to insist on not being publicly exposed in their religious identity without explicit consent; to live in accordance with the tenets and norms of their faiths; to hold worship alone or together with others; to grow up and remain within a faith communities or to abandon their inherited belief; to develop appropriate infrastructures needed for the development of their communities; to defend old or create new religious organisations; to engage in religious charity activities; to manifest religious or belief-orientations visibly, including by obeying particular dress codes; to promote religious convictions publicly and invite others to join; to educate their children in conformity with their own religious or moral convictions and to organise community schools for this purpose, and many other activities. Freedom of religion or belief thus exceeds the sphere of personal faith and spirituality by also covering public manifestations and infrastructural aspects of religious life. Moreover, no one can be free to do something unless he or she is also free not to do it. That is why freedom of religion or belief also covers freedom not to profess a religion or belief, not to attend worship or just not to care about religious or philosophical issues etc.

The ECtHR has generally confirmed such a multifaceted, open understanding of Article 9. For instance, in the famous judgment on [KOKKINAKIS, 1993], which marks the beginning of its jurisdiction on freedom of religion or belief, the Court clarified that Article 9 also covers non-coercive missionary activities undertaken by a Jehovah’s Witness. In [EWIDA AND OTHERS, 2013], the Court decided in favour of a woman who insisted on wearing a visible cross around her neck also in her work place. The judgment in [JABÓBSKI, 2010] recognised the claims of a prisoner who, due to his convictions, wished to receive vegetarian food, and with the judgment in [BAYATAN, 2011], the Court accepted a claim of conscientious objection to military service, etc. While at the beginning mainly focusing on rights of individuals, the Court subsequently broadened its jurisdiction on Article 9 by including claims of communities [see e.g. METROPOLITAN CHURCH OF BESSARABIA AND OTHERS, 2001].

It is a truism that freedom cannot be completely unlimited. However, the general need for some limitations can easily become a pretext for imposing far-reaching, arbitrary and discriminatory restrictions. The question of where to draw limits and how to prevent the frequent abuse of limitation clauses is one of the most sensitive issues in human rights law. Due to the specific status of freedom of religion or belief as an inalienable right, the onus of proof always falls on those who argue on behalf of limitations, not on those who wish to exercise their freedom. In other words, the relationship between freedom and its limitations must remain a relationship between rule and exception. In case of doubt the rule prevails, and exceptions always require an extra burden of argumentation concerning both empirical evidence and normative reasoning. Moreover, for limitations to be justifiable, they must be legally prescribed and they must be ‘necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others’ (Article 9(2) of the ECHR). The formula ‘necessary in a democratic society’ demands that limitations remain within the realm of proportionality, which inter alia means they must be confined to the minimum degree of interference needed to pursue one of the listed legitimate goals. Finally, the inner nucleus of a person’s faith or conscientious position cannot be exposed to any justifiable limitations.

When dealing with the issue of limitations, the ECtHR has granted states a certain ‘margin of appreciation’. Whereas that concept generally makes sense given the role of the Court as a supervising body for a broad number of states, the margin of appreciation has often been particularly wide in cases involving freedom of religion or belief, for instance in relation to headscarf issues [see LEYLA SAHIN, 2005]. By conceding a wide margin of appreciation, the Court wishes to acknowledge the existing variety of legal traditions within the Council of Europe concerning the handling of religious diversity. Critics have objected that the Court has factually surrendered its supervision on the reasonable application of limitations clauses and in particular of the proportionality test. Such criticism has also come to the fore in some dissenting votes [see e.g. SAS, 2014].

Equality and Non-discrimination

The preamble of the UDHR links the ‘inherent dignity’ of all human beings to ‘their equal and inalienable rights’ thus highlighting the specific status of the principle of equality for the understanding of human rights. Indeed, the idea that human beings should have certain fundamental rights just because they are humans necessarily implies equality of all in those rights. Equality therefore is one of the defining principles of the human rights approach in general.

In practical terms, equality chiefly means non-discrimination. All major human rights documents contain provisions for non-discrimination. Article 2 of the UDHR, Article 2 of the ICCPR, Article 14 of the ECHR and many other human rights instruments inter alia list ‘religion’ as one of the explicitly prohibited grounds of discrimination. In a number of cases, the ECtHR has based its judgments on Articles 9 and 14 of the ECHR seen in conjunction, thereby explicitly linking freedom of religion or belief to the principle non-discrimination [see e.g. RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAHS, 2008].

The non-discriminatory implementation of freedom of religion or belief in all areas of society presents a complex task. First, it implies a consistent policy of nondiscrimination within state institutions, e.g. by ensuring accessibility of public positions regardless of religious or belief-related orientations. Furthermore, the state should combat discriminatory practices within society at large by issuing comprehensive anti-discrimination laws and policies. Finally, the state should also tackle the root causes of societal discrimination by promoting a general climate of societal openness, providing fair information about different religious or belief traditions as part of the school curriculum, facilitating encounters of people from different denominations and encouraging interreligious communication.

Between State Religion and Secularity

Not only at the global level, but also within Europe very different regimes of regulating the relationship between states and religious communities exist. While France epitomises the idea of a strict separation between state and religion, Greece or Denmark are examples of states which in their constitutions recognise the special status of one traditional church. Already at the legal level, the existing systems display a broad range of possibilities. Political realities are even more diverse. The formally ‘secular’ nature of their constitution does not prevent many states, such as Russia or Turkey, from cherishing very close ties with the predominant religions in their countries, which results in discrimination against members of other religious communities.

Freedom of religion or belief does not prescribe one particular model of regulation the relationship between state and religion. Different societies may follow different ways and find different solutions in this regard, provided they honour their human rights obligations. As already mentioned, the ECtHR has conceded a wide margin of appreciation in this regard. This does not mean, however, that freedom of religion or belief would remain entirely ‘neutral’ vis-à-vis the various existing systems. Under international as well as European human rights law, the state functions as the formal guarantor of human rights for everyone under its jurisdiction. With regard to freedom of religion or belief this requires that the state provide an open space within which religious or belief-related diversity can unfold freely, safely and without discrimination. This certainly presents a challenge to countries in which certain religions and state institutions are closely interwoven, in particular countries with an official religion or state religion. It seems difficult to conceive an application of the concept of state religion that in practice does not have adverse effects on religious minorities – unless the state religion is just a historical ‘formality’ without any real impact on state and society.

The obvious alternative to a system of state religion seems to be the ‘secular state’. However, it is well known that notion of the secularity can have very different meanings, which is a source of much confusion. The same is true for the term ‘laicité’. On the one hand, the secularity of the state can represent a formal commitment to accommodate religious pluralism in fairness to all. On the other hand, the term secularity can also become a proxy for non-commitment of the state in this area. On top of that, it can even describe restrictive policies of pushing religion into a mere private sphere, which would be at variance with freedom of religion or belief as entrenched in international and European human rights law.

From a systematic point of view, it seems plausible to assume that the state, in order to be able to guarantee the right to freedom of religion or belief for everyone without discrimination, should not identify itself with any particular religion or belief, including doctrinal secularism. A policy of deliberate non-identification of the state with any religion or belief does not necessarily require a clear-cut separation between state and religious communities, which strictly speaking would be illusionary. Rather, it implies creating an open and inclusive institutional framework that gives breathing space to the existing and emerging religious diversity. It furthermore requires a selfcritical attitude in order to discover and remove possible biases, which could even be hidden underneath prima facie ‘neutral’ norms. In order to make it clear that such deliberate non-identification, despite the seemingly negative formulation, has a positive significance one may further qualify it as ‘respectful non-identification’. After all, it is out of respect for everyone’s freedom of religion or belief that the state is supposed to exercise and institutionalise such self-restraint.

Intersection With Other Human Rights (The Example of Freedom of Expression)

As pointed out in the beginning, freedom of religion or belief follows the same logic as other human rights. It shows a particular closeness with freedom of expression. Although in practice issues brought forward under those two rights can at times collide, freedom of religion or belief and freedom of expression ultimately reinforce each other mutually. It is all the more surprising that the relationship between these two rights has sometimes been described as antagonistic. While freedom of expression seems to represent a classical liberal right that protects all sorts of free speech, artistic experimentation, public criticism and non-violent provocation, religious freedom has at times been construed as a less liberal counter-right, as it were, in that it allegedly aims at putting limits to an ‘overly extensive’ expressive freedom. This perceived antagonism often rests on the false assumption that freedom of religion or belief abstractly promotes ‘the cause of religion’, whatever it is. As a human right, however, freedom of religion or belief empowers human beings, rather than protecting religions in themselves.

Some judgments of the ECtHR have contributed to the described antagonistic misperception. A much discussed example is the case [OTTO-PREMINGER-INSTITUT, 1994]. The Austrian administration had confiscated a film deemed offensive to the feelings of Christians, since it placed central persons of the Christian tradition in a pornographic context. In its judgment the Strasbourg Court did not see a violation of the complainant’s freedom of expression. The Court held that the issue ‘involves weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views (...), on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand’. In a dissenting vote three of the judges sitting in that chamber argued that the assumed antagonism between freedom of religion or belief and freedom of expression did not exist. The Convention does not, in terms, guarantee a right to protection of religious feelings. More particularly, such a right cannot be derived from the right to freedom of religion, which in effect includes a right to express views critical of the religious opinions of others.

Similar debates have taken place in the United Nations, sometimes leading to emotional controversies. Over the years, the UN Human Rights Committee as well as the UN Special Rapporteur on freedom of religion or belief have consistently emphasised the positive interrelatedness of freedom of religion or belief with freedom of expression. At the peak of the controversy around the Danish Mohammed cartoons, Asma Jahangir, UN Special Rapporteur on freedom of religion or belief from 2004 to 2010, pointed out that there can be no right of a person or group to be free from criticism or even ridicule. Postulating such a right could lead to the end of a free society based on open public discourse. Jahangir clarified that blasphemy laws do not only restrict freedom of expression; they typically also threaten religious minorities and dissidents. She thus took a position similar to the minority vote in the Otto-Preminger case. At the same time, she clarified that no general antagonism exists between freedom of expression and freedom of religion or belief, which as human rights closely belong together.

REFERENCES:

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BAYATYAN v. ARMENIA (ECtHR 07/07/2011, 23459/03).

CAMPBELL and COSANS v. UK (ECtHR 25/02/1982, 7511/76 and 7743/76).

EWEIDA and others v. UK (ECtHR 15/01/2013, 48320/10 etc.).

JAKOBSKI v. POLAND (ECtHR 07/10/2010, 18429/06).

KOKKINAKIS v. GREECE (ECtHR 25/05/1993, 14307/88).

LEYLA SAHIN v. TURKEY (ECtHR 10/11/2005, 44774/98).

METROPOLITAN CHURCH OF BESSARABIA and others v. MOLDOVA (ECtHR 13/12/2001, 45701/99).

OTTO-PREMINGER-INSTITUT v. Austria (ECtHR 20/09/1994, 13470/87).

RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAS v. AUSTRIA (ECtHR 31/07/2008, 40825/98).

SAS v. FRANCE (ECtHR 01/07/2014, 43835/11).