Monica Lugato (LUMSA-Rome) has posted a new article, National Policy Towards Religious Associations within the Framework of European Law, on SSRN. The abstract follows:
The article discusses the current status of policy towards religion as a national competence within the framework of European law. It submits on the one hand that, in the present stage of European integration, core decisions concerning the public dealing with religion and religious communities are inherently a national policy domain. However, because religion is at the same time an element of the Member States’ national identities, one of the sources of the founding values of the European Union and a fundamental freedom both nationally, internationally and within EU law, the scope of such inalienable policy domain is shaped, through an on-going process, not only by national law implementing national policy choices on religion, but also by EU law aimed at preserving national identities and the identity and specific contribution of religious (and philosophical and non-confessional organizations) associations, as they have historically and culturally developed within the national States, while at the same time safeguarding the EU framework on fundamental freedoms and fundamental rights; and, finally, by international rules on freedom of religion limiting Member States’ and the EU’s freedom in the same area.
As Walter Russell Mead notes, the recent falling-out between Germany and Turkey over Turkey’s accession to the EU confirms what Samuel Huntington wrote in the 1990s: Deep civilizational divides continue to exist and are impossible to ignore. Notwithstanding Kemalist dreams of transformation, Muslim-majority Turkey and liberal, secularist Europe represent different ways of being. It was never clear how the two could successfully merge in one political entity. Under Erdogan’s AKP, the marriage seems further away than ever.
A recent book from Ashgate, Minorities and Nationalism in Turkish Law, seems like it would provide helpful background to today’s events. The author, Derya Bayir, is a lawyer who specializes in international human rights and the Turkish legal system. Here’s the publisher’s abstract:
Examining the on-going dilemma of the management of diversity in Turkey from a historical and legal perspective, this book argues that the state’s failure to accommodate ethno-religious diversity is attributable to the founding philosophy of Turkish nationalism and its heavy penetration into the socio-political and legal fibre of the country. It examines the articulation and influence of the founding principle in law and in the higher courts’ jurisprudence in relation to the concepts of nation, citizenship, and minorities. In so doing, it adopts a sceptical approach to the claim that Turkey has a civic nationalist state, not least on the grounds that the legal system is generously littered by references to the Turkish ethnie and to Sunni Islam. Also arguing that the nationalist stance of the Turkish state and legal system has created a legal discourse which is at odds with the justification of minority protection given in international law, this book demonstrates that a reconstruction of the founding philosophy of the state and the legal system is necessary, without which any solution to the dilemmas of managing diversity would be inadequate. Adopting an interdisciplinary approach, this timely book will interest those engaged in the fields of Middle Eastern, Islamic, Ottoman and Turkish studies, as well as those working on human rights and international law and nationalism.
Just in time for my post on symbols, the New York Times picks up the topic as well. So this is page A1 news! Of course, the underlying issue—the treatment of religious symbols in the public sphere—is hardly new. But it continues to be contested and rich and fascinating to study in comparative perspective.
Let me focus in this post on the question of attribution and the role of individual religious expression as opposed to expression of a religious viewpoint or identity by the state. The Times story opens with a Roman Catholic archbishop reminiscing about visiting Brussels and encountering there “the insistently secular bureaucracy of the European Union.” The story continues with the statement “’They let me in wearing my cross,’ the archbishop recalls.” Should he have been surprised? The story then continues with “the rude surprise” that ensued after the Commission objected to crosses on commemorative Euro coins. But should that be surprising?
None of this should be surprising to anyone accustomed to the U.S. concept of a free exercise and establishment distinction. Attribution is a central threshold question in the United States. We are very familiar with the attribution issue, because deciding whether the message is one attributable to the state or the individual determines whether the message is fully protected as a matter of free speech and free exercise or whether it is subject to Establishment Clause limits (which, by the way, does not automatically indicate a violation on the merits). When I talk about religious messages in the U.S. context, I must therefore distinguish between messages of the government and messages of individuals. (I’ve written about the intricacies of that question in the U.S. context in more detail here.)
This (from the U.S. perspective) familiar question of attribution is also gaining importance in the European context, and what makes it particularly interesting there is that we do not have this split into free exercise and nonestablishment in most systems. Take, for instance, the European Convention on Human Rights. The Convention itself contains no Establishment Clause-type provision. But in the case law of the European Court of Human Rights (ECtHR) an interesting development is occurring. Article 9 contains the Convention’s religious freedom provision. In Article 9(2) we find the limitations clause (also a typical feature of continental constitutions). It states: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
As I’ve discussed here, recent case law seems to be slowly developing the meaning of the limitations clause beyond the limit on individual free exercise that it originally was by focusing on the type of democratic society envisioned by the Convention. An indicator of that development is the ECtHR’s emphasis on pluralism in the sense of allowing citizens of all faiths as well as nonreligious citizens to flourish in a democratic society. And that leads to a limit to religious identification imposed on the state itself, as opposed to limit on the individual’s free exercise. In short, the clause might become a limit on the state’s identification with religion. This is where we ask the attribution question. And in a system without a distinction between free exercise and nonestablishment, the interesting point to me is that we’re now starting to ask this question in the first place.
So if we ask about attribution—a question that has not traditionally been asked in the European context precisely because those systems tend not to have an establishment clause-like provision—we ask about the state’s actions, or religious expressions, as distinct from the individual’s actions or messages. And if we set the problem up this way, we are creating a dichotomy that many European national systems do not recognize. And so I find myself wondering whether national concepts of the public sphere may be on a collision course with what the European Court of Human Rights appears to be tending toward.
Pasquale Annicchino (European University Institute – Robert Schuman Centre for Advanced Studies) has posted Freedom of Religion or Belief in the Foreign Policy of the European Union: Much Ado About Nothing? The abstract follows.
Part One of this article introduces the new European External Action Service. Part Two focuses especially on the recent policies undertaken by the European Union to include the protection of religious freedom or belief in its external action. Part Three compares the action undertaken by EU institutions with the model that served as its source of inspiration, namely the U.S. Commission on International Religious Freedom. Part Four offers some tentative conclusions. I will argue that thus far, analyzing the concrete measures approved by EU institutions in the field, the enthusiasm or early critics is not justified. The EU guidelines on freedom of religion or belief will probably only constitute a first minimal step, but more time will be needed to assess the real policy intentions in the field in concreto.
This December, Oxford University Press will publish the second edition of Religious Freedom in the Liberal State by Rex Ahdar (University of Otago Faculty of Law) and Ian Leigh (University of Durham, Durham Law School). The publisher’s description follows.
Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on United Kingdom, the United States, Canada, New Zealand, Australia, and EU, it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen.
Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment; education; parental rights and childrearing; controls on pro-religious and anti-religious expression; medical treatment; and religious group (church) autonomy.
This new edition is fully updated with the growing case law in the area, and features increased coverage of Islam and the flashpoint debates surrounding the accommodation of Muslim beliefs and practices in Anglophone nations.
Posted in Scholarship Roundup, Yosefa A. Heber
Tagged Australia, Books, Canada, Church and State, Constitutional Framework, European Union, Law and Religion, New Zealand, Religious Freedom, United Kingdom, United States
A few weeks ago, I noted an essay by Estonian president Toomas Ilves hinting that religion may have something to do with Europe’s inability to agree on a solution to its fiscal crisis. Thrifty, rule-abiding Northern Protestants, Ilves suggested, do not like the idea of sending money to profligate Southern Catholics who think the rules about not spending what you don’t have don’t apply to them. Here’s another essay, by Harvard historian Steven Ozment, arguing that the roots of Northern unwillingness to bankroll the South lie in the Protestant Reformation. Germany’s refusal to agree to eurobonds, Ozment writes, reflects the Lutheranism that, notwithstanding “the forces of multiculturalism and secularism,” still informs German culture:
How little has changed in 500 years. The German chancellor, Angela Merkel, a born-and-baptized daughter of an East German Lutheran pastor, clearly believes the age-old moral virtues and remedies are the best medicine for the euro crisis. She has no desire to press a Continue reading
Posted in Commentary, Mark L. Movsesian, Uncategorized
Tagged Christianity, European History, European Union, Financial Crisis, History of Religion, Protestantism, Religion and Culture, Religion in Europe, Sociology of Religion
Another blow for Christian minorities in the Middle East: last week, Turkey’s highest court ruled against the Mor Gabriel Syriac Orthodox monastery (left), the oldest functioning Christian monastery in the world, in a long-running lawsuit brought by local villagers. The lawsuit accused the monastery of “anti-Turkish activities,” including the illegal occupation of land that allegedly belongs to the government. Most commentators have dismissed the merits of the lawsuit — among other things, the suit claims the monastery occupies the site of a pre-existing mosque, even though the monastery predates Islam by centuries — and the high court’s behavior during the litigation has not reassured people. At one point, for example, the court apparently “lost” the documents the monastery submitted in support of its claim. The monastery will now appeal to the European Court of Human Rights, which ruled against Turkey in a similar case involving the Greek Orthodox a while ago. The EU, meanwhile, has expressed “serious concern” about the decision.
Posted in Commentary, Mark L. Movsesian
Tagged Christians, Comparative Law and Religion, European Court of Human Rights, European Union, International Human Rights, Minorities in the Middle East, Recent Cases, Religion in the Middle East, Religious Freedom, Religious Minorities, Turkey
Pasquale Annicchino (Robert Schuman Center for Advanced Studies) is doing interesting work on a new phenomenon, the promotion of religious freedom in the foreign policy of the EU. I heard him give a paper on the subject at the conference at Harvard earlier this month. Last week, he had an op-ed in La Stampa describing a proposed unit within the EU’s new diplomatic corps, the European External Relations Service, devoted to the protection of religious freedom abroad. This unit, which is modeled after the US Commission on International Religious Freedom, is perceived as especially important in the context of the Arab Spring. Annicchino argues that the unit must have power to impose sanctions for violations of religious freedom; economic agreements the EU has with third countries may provide a mechanism. Here’s the link (in Italian).
This afternoon’s first panel was “Religious Freedom in the Contemporary Juridical Context,” chaired by Francisca Pérez Madrid of the University of Barcelona. (UPDATE: That’s a picture of the panel, left, with conference organizer Mary Ann Glendon). I opened the panel with a comparative paper on recent cases in the American Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Although both courts emphasize the need for state “neutrality,” they define neutrality differently, and I argue that the differences reflect underlying institutional and cultural factors. Hans-Martien ten Napel (Leiden University) followed with a paper on theoretical justifications for religious freedom, including church autonomy. He argued that Christian social pluralist thought, both Catholic and Protestant, can provide an institution-sensitive account of religious freedom that avoids some of the pitfalls of conventional individualistic accounts. Iain Benson (Miller Thompson LLP, Canada) spoke next. In a satiric paper, he explored rhetorical devices used by opponents of church autonomy, for example, referring to “public” as distinct from “religious” and treating “secular” as a neutral, ahistorical concept. Pasquale Annicchino (European University Institute) followed with a paper on the need for a religious freedom office within the new European External Action Service, an EU diplomatic corps established by the Treaty of Lisbon. This new service, he argued, which would advocate for religious freedom outside Europe, could be modeled on the US Commission on International Religious Freedom. Pérez Madrid closed the panel with a paper on a recent General Comment by the UN’s Committee on Economic, Social and Cultural Rights on article 15 of the International Covenant on Economic, Social and Cultural Rights, which requires states to promote citizens’ participation in cultural life. Issued in 2009, the General Comment notes that “culture” encompasses, among other things, religion and belief systems; although it must be reinforced in some ways, Pérez Madrid maintained, the General Comment’s approach to religion as a matter of culture was basically sound.
Posted in CLR News, Mark L. Movsesian, Scholarship Roundup
Tagged Church Autonomy, Comparative Law and Religion, Conferences, European Court of Human Rights, European Union, International Human Rights, Religion and Culture, Religion in America, Religion in Europe, Religious Freedom, Supreme Court
This year, the Oxford University Press will publish A Secular Europe (forthcoming May 2012) by Lorenzo Zucca (King’s College London). The publisher’s description of the book follows.
How to accommodate diverse religious practices and laws within a secular framework is one of the most pressing and controversial problems facing contemporary European public order. In this provocative contribution to the subject, Lorenzo Zucca argues that traditional models of secularism, focusing on the relationship of state and church, are out-dated and that only by embracing a new picture of what secularism means can Europe move forward in the public reconciliation of its religious diversity.