Contemporary Understandings of Religious Freedom in the West

on October 22, 2012

 

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There are fundamental differences between American and European concepts of religious freedom. (Photo
credit: EdgeoftheFrame/Wordpress)

 

American religious freedom tends to be understood as protecting the integrity of religions, whereas Europeans see religious freedom as balanced by the state against other interests. This appeared to be the overall assessment of the contemporary situation for religious freedom by panelists at a conference on contrasting American and European models of religious liberty sponsored by the Religious Freedom Project of the Berkeley Center for Religion, Peace, and World Affairs and the International Center for Law and Religion Studies at Brigham Young University’s School of Law on Thursday, October 11.

Among the panelists was Kyle Duncan, Senior Counsel for the Becket Fund for Religious Liberty, who reviewed the  Supreme Court’s recent Hosanna-Tabor decision, in which the court unanimously decided that the “Ministerial Exception,” which exempts clergymen and teachers of religious doctrine from antidiscrimination law and policy was grounded in the “no establishment” and ‘free exercise’ clauses of the first amendment, and is thus a constitutional right held by the employers of religious ministers. This exception is absolutely essential to prevent the state from becoming involved in ecclesiastical decisions, Duncan said, and if it were not absolute (perhaps pertaining only the religious doctrine), it would involve the state in judging religious doctrine.

Another Becket Fund panelist, Mark Rienzi, noted however, that in America, while freedom of religious belief is non-controversial, freedom of religious action is disputed. But the need to protect religious action has been recognized and addressed by legislative action. There are specific laws protecting liberty of conscience. An original exemption from military service was expanded from objecting religious groups to anyone with a religious objection to military service, and finally to anyone with a moral objection. Likewise, the right to refuse participation in abortions soon gained conscience protection after abortion became legal, through the Church Amendment (named for Senator Frank Church) which was quickly adopted after the legalization of abortion.

Dean Carolyn Evans of Melbourne Law School contrasted this with a recent case in Germany in which Germany’s judiciary had upheld the right of a Christian organization to fire an employee who had a child out of wedlock, only to have this reversed by the European Human Rights Court. She noted the different attitudes in the United States and Europe, with Americans viewing the state as a threat to liberty, and the civil liberties concept as protecting individuals from the state, and the more active role for government favored by Europeans, with the state understood to be advancing liberty, and religious liberty concerns understood to be a matter of “balancing of rights.” Not only is Europe becoming more secular in terms of having more people who are specifically non-religious, but there is greater dissent from official doctrine in the churches.

Many Europeans see the history of religion in Europe as one of “abuse,” and personal freedom threatened by religious morality. Gerhard Robbers of the Institute for European Constitutional Law also seemed to note more and more attenuation of religious rights in Europe, with religious circumcision now in question due to the recent decision of a German court judging religious circumcision of minors to be criminal. He noted this decision, although it has greatly disturbed Jews and Muslims, was widely welcomed among the German public. Likewise the immunity religious organizations formally enjoyed from the right to strike by their employees is now in question; the European Human Rights Court has accepted a case from Romania involving a strike against a religious organization.

At a later panel in the conference, Javier Martinez-Torron of Complutense University in Madrid said that while Article IX of the European Convention on Human Rights protects the right of individuals to behave in accordance with their conscience, and that the state must demonstrate that any restriction on conscience is strictly necessary to protect public order, the European Human Rights Court tends to disregard liberty of conscience, dismissing the right on weak justifications. In 2011, however, the court for the first time recognized that the American principle of using the least restrictive means to burden religious liberty was correct, at least in a case involving military service – although there are indications the court will not move beyond objections to military service.

This more restricted understanding of liberty of conscience was underscored by Rik Torfs of the Catholic University of Leuven in Belgium, who said that Europe is moving from a “value-based” society where people adhere to a commonly accepted morality to a “normative,” or law based society, where rules of the state are enforced on a society without common values.

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