Proselytism and the Freedom to Change Religion in International Human Rights Law
Stahnke, Tad, Brigham Young University Law Review
Justice Frankfurter of the United States Supreme Court once wrote: "Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing."1 Proselytism is one form of expression that has resulted in inevitable, and sometimes fierce, conflict. But on Justice Frankfurter's terms, proselytism-whether it is viewed as an exercise of free expression or a manifestation of religious belief-is not in itself the problem. The problem lies in finding the proper balance between the freedom to proselytize and the multitude of rights, duties, and interests of religious groups, individuals, and the state that may conflict with that freedom.
The difficulty of this "adjustment" is deepened by a number of factors. Persons who proselytize, whether as a matter of conscience or religious belief, may adhere to their entitlement to do so with great strength. Likewise, the targets of proselytism may hold their religious beliefs (or their sense of privacy in those beliefs) with equal strength; attempts to persuade them in matters of religious belief may lead to injury to religious feelings. Finally, religious groups, desiring to preserve or expand their numbers, may have strong views as to the terms on which persons may change their religious identity or affiliation. This may influence the groups' view on proselytism.
Within the framework of international human rights law, states are responsible for sorting out these, and other, competing interests in formulating policies that adequately protect the rights of all involved. But states themselves exhibit different views on the necessity of regulating, or the wisdom of influencing, religious choices of their people. In some societies a change in religious beliefs may have far-reaching social ramifications, whereas in others, such a change will have only private impact. Inevitably, different state practices will be a reflection of more general societal considerations. It appears that the extent to which other rights and interests give way to the freedom to proselytize is indicative of the extent to which a society views itself as hospitable to change in the religious beliefs of its members, and considers an open (and consequently confrontational) exchange of different religious viewpoints to be acceptable, or even desirable.
Given all of the variables at play, it is very difficult in the abstract to pose general solutions to the conflicts raised by proselytism. As Justice Frankfurter noted: "Court[s] can only hope to set limits and point the way. It falls to the lot of legislative bodies and administrative officials to find practical solutions within the frame of [court] decisions."2 The same practical limitations constrain the application of international human rights standards.
The goal of this article is to explore in a variety of political and religious contexts the different rights and interests at issue when conflict arises over proselytism. States must consider these rights and interests in order to establish a decision-making framework consistent with the principles of international human rights law. This article concludes that certain state action restricting proselytism, either by employing discriminatory methods or in furtherance of interests not recognized in international instruments, is inconsistent with international standards. The validity of other restrictions will depend upon a variety of circumstantial variables primarily relating to the potential for coercion. These variables cannot be sorted out in any consistent way without resorting to the particulars of each case.
Part II of this article addresses important preliminary issues including (a) the definition of proselytism as employed here, (b) a brief overview of the views of various religions on proselytism, and (c) a discussion of the different forms that restrictions on proselytism can take and the discrimination that may arise from such restrictions. …