Academic journal article
By van Bijsterveld, Sophie C.
Brigham Young University Law Review , Vol. 2000, No. 3
In transatlantic debates about the relationship between church and state and about the relationship between religion and the law, references to a difference in understanding of religious liberty are common. Western Europeans and Americans generally agree on the need for religious liberty, but this does not mean that their understanding of the term "religious liberty" is the same. Indeed, western European ideas about religious liberty often clash with American ideas-especially in the area of public accommodation of religion. In this area, western Europeans have been much more willing to forge a cooperative, even facilitative, relationship between church and state.
By presenting a brief analysis of western European experiences and by offering some ideas on the nature of western European and American approaches toward freedom of religion, I hope to explain this disjunction. The ideas that I would like to propose can be summarized in three points. First, models and structures of religion and law are-and to a certain extent should be-context dependent. In evaluating the variety of western European systems, one needs to pay attention to legal traditions, social reality, history, and the political context. Second, to a greater or lesser extent, western European systems take the public dimension of religion into account. Religion is not traditionally seen as solely a private matter. The recognition of the public dimension of religion can raise questions with respect to state neutrality and equal treatment of religions (especially in the case of a strong majority-minority situation), but such questions need to be dealt with in a creative way. Third, the American perspective embodied in the phrase "Wall of Separation" is more a hindrance than a help in explaining the western European/American approaches in their actual legal reality.
II. THE WESTERN EUROPEAN HISTORICAL AND LEGAL TRADITION WITH RESPECT TO CHURCH-STATE RELATIONS
In its most institutional form, the relationship between religion and law is expressed in the legal relationship between church and state. In western European countries, these relationships take the shape of separation between church and state, cooperation between church and state, or established church systems.1 These systems are often deeply rooted in legal and historical traditions. Additionally, in pluralistic and individualized societies, these characterizations, to a large extent, shape the "constitutional identity" of a country.2
The characterizations of France as a republique laique and the position of the Church of England as an established church are examples of how the relationship between church and state can shape the constitutional identity of a country. In general terms, these characterizations tell us something about the balances that exist between the spiritual-religious and the legal-political organization of the state.
The western European constitutions, each in their own way, create a balance in the relationship between church and state and between religion and law. For example, the Irish system of organizational and financial separation of church and state compensates for the strong position of the church in society. In addition, the financial relationships in Belgium and Luxembourg (countries in which the state provides for the wages and the pensions of the clergy) and Germany (with a state supported system of church tax collection) go hand in hand with guarantees of organizational independence and church autonomy. Finally, Italy and Spain combine guarantees for minority churches with the guarantees granted the majority Church in the constitution as an expression of social reality.
The western European systems are, as noted earlier, deeply rooted in historic traditions. However, they are not static. In the western European arena, we could speak of a certain "erosion of extremes."3 In Finland and Sweden,4 for example, certain developments have placed the various churches on an equal footing. …