Academic journal article Brigham Young University Law Review

Religious Freedom and Its Legal Restrictions in China

Academic journal article Brigham Young University Law Review

Religious Freedom and Its Legal Restrictions in China

Article excerpt

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I. INTRODUCTION

In her concurring opinion in McCreary County v. ACLU of Kentucky,1 Justice O'Connor observes:

By enforcing the [Religion] Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.2

Americans are fortunate indeed in comparison to the Chinese, whose religious matters are in the hands of prosecutors and bureaucrats. The State's interference with religion has not only restricted the individual freedom of conscience, but also contributed to "violent consequences" in China's ethnic relations.3

Yet, like the First Amendment of the United States Constitution, Article 36 of the Chinese Constitution, enacted in 1982, also explicitly confirms the freedom of religious belief, albeit with a limiting clause:

Citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organization, or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.

The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.4

In China, a critical question is the extent to which the state may legitimately restrict religion without violating the principle of religious freedom articulated in Article 36. After 1949, Marxist ideology predominated in China, treating religion as "superstition" and the "opium of the people" for soothing the pain of individual souls.5 Atiieists' animosity toward religion reached its climax during the Great Cultural Revolution (1966-76), when religious sanctuaries were damaged by mobs or taken by governments on a massive scale.6 Since economic reforms began in the late 1970s, China's attitude toward religion has considerably softened, yet its religious policies are still influenced by the remnants of the atheist mindset and the fear of the organizational capacity of churches and sects, rendering religion a sensitive political issue.7 As a result, religious freedom is carefully limited by laws and regulations, which have substantially reduced the scope and effectiveness of the constitutional protection of religious freedom.8 Indeed, even "normal" and lawful religious activities are not effectively protected given the absence of legal remedies for official violations of religious freedom. Administrative litigations, for example, are rather strictly limited to the scope of "legal interests" - interests defined explicitly in laws, not including the Constitution.9

This Article shows that effective judicial remedies, legislation and administrative acts can and, in reality, do impose a variety of stringent restrictions upon the freedom of religious belief. Part II of this Article discusses the Chinese attitude toward religious belief, showing that the Chinese tend to view religious faith as superstition. Part III demonstrates how Chinese laws and regulations tend to limit the freedom of religion in China, and Part IV shows the limited nature of religious privileges in China, suggesting ways in which these privileges can be improved. Part V discusses ways in which Chinese governments have become entangled with religious organizations. Part VI concludes.

II. GENERAL ATTITUDE TOWARD RELIGIOUS BELIEF

Although the Chinese government has paid careful attention to limiting offensive comments about religions in order to avoid religious agitation and maintain social stability,10 the official atheist ideology and previous political movements have accustomed government officials and society at large to view religion as a mere superstition - a product of ignorance - or as an unstable force in society. …

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