Academic journal article Brigham Young University Law Review

Religious Freedom: Russian Constitutional Principles-Historical and Contemporary

Academic journal article Brigham Young University Law Review

Religious Freedom: Russian Constitutional Principles-Historical and Contemporary

Article excerpt

No constitution exists in a vacuum. Its provisions are constantly being reinterpreted and applied against the backdrop of specific cultures, definitions, and expectations. In the United States, individual choice has become the benchmark by which the validity of decisions is measured. As sociologist Christian Smith, of the University of North Carolina, notes:

For moderns-perhaps especially modern Americans-the ultimate criterion of identity and lifestyle validity is individual choice. It is by choosing a product, a mate, a lifestyle, or an identity that one makes it one's very own, personal, special, and meaningful-not "merely" something one inherits or assumes. 1

In contrast, constitutional principles in Russia have been interpreted not simply through the prism of the individual, but through the matrix of relationships that create and maintain society. Constitutional scholar V.E. Chirkin observes, "a 'constitutional right' regulates the system of foundational ties in the relationships: society-the state-the collective-the individual."2

The Constitution of the Russian Federation, promulgated in 1993, is a "mixed" document, drawing from the Anglo-American, continental European, and Russian constitutional traditions. As such, it represents a "collision of legal cultures."3 This is especially true when dealing with issues of religious freedom. Both the Constitution itself, as well as related legislation, as Alexei Krindatch pointed out, is the result of a

compromise between different approaches to a desirable model of church-state relations in post-Soviet Russia represented by various social forces ....

[Also,] there was a compromise between the "Western" (or American) vision of the term "religious freedom" . . and the current Russian social and political realities ....

The combination of the above mentioned factors... resulted unfortunately in the eclectic and vague character of the entire law and of its particular articles. This allows for a broad range of legal interpretations from very liberal to very restrictive.4

When looking at the question of religious freedom in Russia, therefore, one must not only examine the relevant constitutional provisions, but also the ways in which these provisions are translated in a given cultural and historical contexts This is especially important if there are contradictions or disagreements within the body of the text. One cannot also neglect long-held societal attitudes, especially when such attitudes are reflected in the way constitutional provisions are interpreted and executed by judges and officials.

I. RELIGIOUS FREEDOM AND THE RUSSIAN CONSTITUTION

By the mechanism of a popular referendum, the present Constitution of the Russian Federation was adopted on December 12, 1993, and immediately entered into force. In addition, all "laws and other legislative acts in operation on the territory of the Russian Federation prior to the entry into force of the present Constitution are retained to the point that they do not contradict the Constitution of the Russian Federation."6 The current Constitution, therefore, is not bound by any previous fundamental laws or acts and, according to Article 15(1), "possesses the highest juridical power and direct action and is applicable throughout the territory of the Russian Federation. Laws and other legislative acts, adopted in the Russian Federation, should not contradict the Constitution of the Russian Federation." In addition to elevating the national Constitution to a place of supremacy over all other laws in the Russian Federation, including local and regional legislative acts, Article 15(4) goes on to recognize the priority of international treaties over domestic law, and in the event that a Russian law conflicts with a treaty provision, "the rule of the international agreement shall apply."7

It is important to realize, however, that the Russian Constitution of 1993 does not represent the final apotheosis of constitutional and legal thought in post-Soviet Russia. …

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