Church-State Relations in the European Court of Human Rights

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I. INTRODUCTION

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1 does not deal directly with the relationship between church and state in European countries. In this respect, the ECHR is like most other international human rights treaties that, to the extent that they deal with religion, emphasize religious freedom and nondiscrimination on the basis of religion.2 Unlike some domestic constitutions, these treaties do not require a particular degree of separation or attachment between religions and the state and they do not explicitly prohibit establishment.3 The ECHR does, however, indirectly regulate the permissible forms of relationship between religious institutions and the state by reference to religious freedom. This article explores the ways in which the requirements of religious freedom in the ECHR permit certain types of relationships between Church and State (including some that would be impermissible in countries such as the United States) but also restricts the scope of permissible relations.

The focus of the European Court of Human Rights ("the Court") with regard to religion is summarized in a passage that it used in the case of Kokkinakis v. Greece and has repeated in every major religious freedom case since:

[F]reedom of thought, conscience and religion is one of the foundations of a "democratic society" . . . . It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset to atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.4

These words are at the heart of the European approach to religious freedom cases brought under the ECHR. The passage acknowledges the importance of religious freedom to society but does not deal in any detail with the precise nature of the relationship between church and state except to say that religious freedom, rather than religion itself, is a "foundation" of a democratic society and indissociable from pluralism.5 The state itself, therefore, must be democratic and pluralistic in order to fit within the requirements of the ECHR,6 and it must respect religious freedom, but within those boundaries, there is no requirement or prohibition of establishment between church and state.7

Under the ECHR, therefore, when a litigant argues that there is an inappropriate relationship between a religion and the state, the Court does not begin by asking whether a particular law or series of laws is indicative of the establishment of a religion-because this does not answer the question of whether there has been a violation of human rights. Instead, there are several provisions of the ECHR that the Court considers in determining whether the particular aspect of connection between church and state is permissible.

This article provides a discussion of the permissible boundaries of church-state relations within the ECHR. Part II commences by considering the key provisions in the ECHR that potentially impact church-state relations. Part III is a discussion of the case law of the Court in relation to the type of benefits that the state can grant to an established church and the degree of control that the state can exercise over it. Part IV analyzes the degree of control over internal religious matters-particularly the appointment of clergy-that the state can exercise over non-established religions. Part V is a conclusion that compares the strengths and weaknesses of a purely religious-freedom focused approach to the relationship between church and state, as allowed by the ECHR, to that of the establishment-oriented case law of countries such as the United States.

II. KEY PROVISIONS OF THE ECHR

The approach of the European Court of Human Rights to church-state relations relies heavily on its interpretation of key provisions of the ECHR. …