Perspectives on Freedom of Conscience and Religion in the Jurispredence of Constitutional Courts
Garlicki, Leszek Lech, Brigham Young University Law Review
This article1 attempts to summarize national reports on various aspects of religious freedom. Following a brief introduction in Part I, Part II outlines the approaches of constitutions and constitutional jurisprudence to determine relations between church and state. Part III addresses the ways of understanding the principle of freedom of religion, followed by Part IV which presents various principles of equality in reference to the position of churches and religious groups. Part V outlines the forms of cooperation between church and state, focusing in particular on education and religion teaching.
This article is based on information and reports concerning the case law of constitutional courts in several European countries, including Austria, Belgium, Belarus, Bulgaria, the Czech Republic, the Federal German Republic, France, Hungary, Italy, Liechtenstein, Lithuania, Macedonia, Poland, Portugal, Romania, Russia, Slovenia, Slovakia, Spain, Switzerland, and Turkey.
A discussion of freedom of religion requires consideration of relations between churches and the state. Modern Christian societies now generally accept various versions of separation of church and state (mutual autonomy), acknowledging a distinction of domains belonging to each of them. But it is worthwhile to emphasize that, as indicated by Samuel Krislov,2 separation of church and state is mostly found in the doctrine of Western civilization and the great religions of the world adopt various concepts of church-state relations. Judaism was originally linked with the state, and only historical events caused the eventual separation. The rebirth of the State of Israel allowed a return to tradition, and today an interesting symbiosis of religion and state is observed. Christianity originated as a religion separated from its antagonist, the state. Later links developed between Christian churches and various nations, which were understood differently under Catholic, Orthodox, and Protestant traditions. By contrast, Islam, from its very origins, has been aligned with the state; in this tradition, the identity of religion and government has always been one of Islam's fundamental features.3
From the European perspective, the Christian tradition is of fundamental significance.4 Therefore, most European constitutions and jurisprudence assume a predominantly Christian audience since other religions have always been in the minority.
Even assuming this largely Christian audience, individual European nations have adopted vastly different schemes, which flow from their different histories and traditions. Consequently, along with traditionally Protestant states (e.g., Great Britain and the Scandinavian countries) and traditionally Catholic states (e.g., Austria, France, Spain, Ireland, Liechtenstein, Slovenia, Poland, Portugal, and Italy), there are European countries of mixed religious structure (e.g., Germany and Switzerland).5 Historically speaking, almost all countries formerly had a state church, and the political elite were more interested in establishing and maintaining religious peace than ensuring religious equality. In countries where historical development focused on evolution rather than revolution, there may still be found a very close linkage between a dominant religion and the state, namely Scandinavian countries and the Anglican Church in England. However, in a majority of Continental countries, the official relationship between church and state eventually broke down. This separation of church and state is not meant to result in a lack of assistance or cooperation by the state to churches and does not foreclose the existence of some churches remaining closer to the state than other religious organizations or groups.6
It is a self-evident truth that religious freedom-both for an individual and for an institution-should be considered as a primary element of the more general principle of freedom based on pluralism and the protection of the minority. …