Freedom of Religion and Belief in the Christian/Western World

by Massimo Introvigne (CESNUR, Torino, Italy). Introductory lecture at the conference "Towards a Secular Society" organised by the International Humanist and Ethical Union and the Norwegian Humanist Association, Oslo, May 4, 2001

I thank you for your kind invitation, and am appreciative of your openness in inviting me here, the more so because, as those who invited me well know, rather than a secular humanist I am an active Roman Catholic. I am only a humanist in the classic sense that I have a curiosity and a prima facie sympathy for all human experiences, particularly when they are deeply felt and involve strong moral or spiritual concerns: as the Romans said in an often quoted (if not gender-inclusive) motto, homo sum, nihil a me humani alienum puto. In an important sense, I am also quite secular. I believe that scholarly research in the field of religions should be presented in value-free terms, describing religions as they are to their members and not as they appear when compared to the scholar’s own religion or philosophy. I am the chief editor of an Encyclopedia of Religions in Italy, and have seen as one of my main tasks to keep each entry as value-free and non-judgmental as possible. The risk, here, comes from both "religionist" and secular humanist scholars. Whilst the former may tend to describe other religions as heresies, the latter may let a rationalist prejudice slip in their treatment of religions perceived as particularly irrational. Of course, we all understand that scholars of religion (as many humans do) operate under different hats. As editor of an encyclopedia, or contributor to scholarly journals, I insist on value-free descriptions and try to write in such style myself, while in other forums I would express my own theological ideas on both my and other religions quite freely. There is no contradiction in this, and I am sure most secular humanist scholars would agree that value-free scholarship should not prevent scholars to express themselves freely in non-scholarly forums, as citizens or adherents of a particular cultural, religious or perhaps irreligious organization. Scholarship, on the other hand, is also a school teaching certain general values. For most scholars of religion, be they secular or religious, religious liberty is one of them.

In the last few years, in a number of Western countries religious minorities have been often perceived as a social problem. This is, of course, also a result of legitimate concerns arising from tragedies such as the suicides and homicides of the Order of the Solar Temple and instances of terrorism associated directly or indirectly with religion. In some countries, however, legitimate concerns degenerated into "moral panics", defined by sociologists as socially constructed social problems characterized by a reaction out of proportion to the actual threat [1]. It is within the frame of this situation that recent debate in the European Union (and elsewhere) on how to enforce and apply the general principle of religious liberty consecrated by international treaties and declarations should be understood. Normally, international provisions such as Section 9 of the European Convention on Human Rights (ECHR; there are similar provisions in international conventions outside Europe) establish the general principles of religious liberty but leave great latitude to national states on how these principles should be translated into provisions of (domestic) law.

In fact, from a legal point of view, all international institutions entrusted with the mandate of enforcing such international conventions recognise that there are, even within the borders of areas such as the European Union, historical and cultural differences between states, which make it impossible to propose a single international system as far as the relations between states and religions are concerned. There are, in fact, in the West at least three different models, none of them per se incompatible with Section 9 ECHR and other similar provisions:

0. the model of established or national churches, be they one (Greece, Portugal, Denmark) or two (Finland - Lutheran Church and Orthodox Church; United Kingdom - Church of England and Church of Scotland). This model guarantees certain privileges to the established or national churches. On the other hand, its contemporary evolution has led almost everywhere in the West to some protection for religious minorities, through the application to them by analogy of some provisions originally established in favour of the national churches;
1. the model of separation, where the state "does not recognise any religion" (Article 2 of French Law of December 9, 1905) and allows religious organisations to incorporate under the general provisions of civil or corporate law (United States, The Netherlands, France);
2. the model of multiple recognition, where a number of different religions are recognised or registered by the state with several forms of agreements and provisions (Alsace-Moselle region in France, Italy, Belgium, Austria, Spain, Germany) [2].

From a philosophical point of view (which is not identical to the legal one) Section 9 ECHR recognises that there are certain limits to religious liberty, and this is somewhat obvious. How these limits are determined and defined is the object of a number of controversies. In the United States we have seen in recent years a certain conflict between the majority of the Supreme Court and Congress about two conflicting approaches. The first advocates that religious liberty may be limited only by the "compelling interest" of society as a whole as interpreted by the state. Since public interests really "compelling" are believed not to be many, this is the more liberal approach to religious liberty. The opposite conservative approach asserts that religious liberty may be limited when it may conflict with "public order" [3]. This is generally defined as something much more broad than state’s "compelling interest". Today, it often becomes synonymous of the legal order or at least its general principles [4]. In the West, the mere fact that constitutions and laws may refer to "public order" is not enough to conclude that a conservative approach has in fact been selected. The notion of "public order" is somewhat ambiguous and several different definitions coexist. However, a difference between a conservative and a liberal approach to the issue of the limits of religious liberty remains crucial. In the conservative model, religious liberty is limited by the laws, by the legal order as a whole, or by its general principles, and in some cases also by the values generally accepted by the society and embodied in some fundamental laws of the state, such as the constitutions. The liberal approach, more similar to the American theory of "compelling interest", would rather maintain that religious liberty may be limited only when it may conflict with fundamental human rights, or the essential values of the constitutional order (something different from any and all provisions included in a constitutional law, and certainly different from the legal order as a whole). In Italy, the fathers of the 1947/1948 Constitution, explicitly concerned that any reference to the "public order" as a limit to religious liberty might be constructed in a conservative way, decided not to mention "public order " at all in what became Section 19 of their text. As a consequence, Italian legal scholars have often concluded that "the coming into force of the Constitution automatically abrogated Section 1 of Law No. 1159 of 1929, mentioning public order as a pre-condition for the public recognition of a religious organisation" [5]. A new law entirely replacing Law No. 1159 is being currently discussed. The new draft does not include any reference to the public order. It is worth noting that even the new Catechism of Catholic Church, Section 2109, criticises the idea that "public order" may indeed be regarded as a limit for religious liberty, when "public order" is constructed in accordance to positivist or naturalist criteria, i.e. is simply the sum of existing laws in a given country [6].

In each country, legal and philosophical models interact with each other. The possibilities are summarised (without taking into account many other possible variations) in the following table:

0. The model of the national or established churches may lead, interpreted through the lenses of the conservative approach, to conclude that the state should actively promote the national religion. This is precisely what Greece has been accused of (and occasionally found guilty) in a number of cases decided by the European Court of Human Rights in Strasbourg. On the other hand, when the approach to the limits of religious liberty is liberal, such as in the United Kingdom, the existence of established churches is less likely to lead to discrimination against religious minorities.
1. Separation, in turn, may be merely passive (as in the Netherlands, where a long experience of tolerance exists); or active, according to the French idea of laïcité active. In the latter case, the basis seems to me to be, after all, a conservative approach to the limits of religious liberty. Laïcité (which is not identical to secular humanism) is openly promoted by the state in the name of a "freedom of conscience" that, historically, has often been regarded as in a possible conflict with freedom of religion. At the Supplemental Meeting on Freedom of Religion held by the Organization for Security and Cooperation in Europe (OSCE) in Vienna on March 22, 1999, answering criticism of France in the OSCE reports introducing the discussion on religious pluralism (one of which was presented by the undersigned), the secretary of that peculiar French governmental institution called the French Mission to Fight Cults, Mr. Denis Barthélemy, explained the French position in a particularly interesting way. He said that "religious liberty" and "freedom of belief" are different concepts, and may indeed conflict. "Religious liberty" (a "collective liberty" for churches and movements) may be limited for the sake of "freedom of belief," the "individual liberty" of thinking and believing without "constraints" external to the individual conscience. France will protect against "constraints" to the formation of their individual "belief," Mr. Barthélemy concluded, not only children but also "adults in need of protection" [7]. Protecting individuals against groups may look like a legitimate option within the framework of a general acceptance of personal freedom. However, Mr. Barthélemy’s speech implies that the individual citizen’s freedom of forming one’s belief "freely" shall be protected if necessary against this citizen’s wish, precisely because he or she merely thinks he or she has accepted a belief "freely" when such is in fact may not be the case. The ostensibly liberal reference to "freedom of belief" in fact hides the quintessentially reactionary presupposition that the government knows better than its adult citizens "in need of protection" where their real freedom and best interests lie. In fact, the state in France is historically suspicious of new religions, and even of alternative lifestyles (religious orders in the 19th century, new Catholic movements today) within the larger and older churches. The French model may also suffer from a century-old institutionalisation and generalization of legal provisions originally intended to control one particular religion, the Roman Catholic Church. In an important book where she tries to answer, precisely, the question of why a governmental crusade against a number of groups labelled as "sects" was recently promoted in France rather than in other Western countries, French sociologist Danièle Hervieu-Léger [8] suggested that laïcité active was institutionalised into a legal model trying to control existing religions by fitting them into a model paradoxically patterned after laïcité’s main ideological enemy, i.e. the Roman Catholic Church. It is when confronted with religious forms not easily controllable through this "Catholic" model (dioceses and parishes, and a central authority responsible towards the state) that French governments react, and the reaction has been particularly strong after the recent crisis of the Catholic Church made the secular state quite insecure about how a suddenly deregulated religious market may still be effectively controlled. Hervieu-Léger’s suggestion in order to defuse the present state of tension and international criticism of France on the question of "sects" is that the French state becomes, if anything, not less but more secular, abandoning its "Catholic" model of dealing with religions and even creating what she proposes to call a "High Council of Laïcité" in order to reaffirm its secular values, control those groups which are in fact dangerous, yet remain open to religious forms which are not criminal, although they are very much different from the "Catholic" model of religion institutionalised in French law.
2. Multiple recognition models may be either open to a large variety of possible groups, or closed. In the latter case, based on the conservative approach, recognition or registration may be granted to religions only if they are found to comply with the provisions of the Constitution (Germany) or with "public security, public order, health and moral", "democracy" and even the "psychological integrity" of the population (according to the very restrictive Section 5 of the new Federal Austrian Law of 1998). In these cases, differences between "good" and "bad" methods of proselytism may also be proposed.

Contemporary, secular States may protect religious liberty through a variety of legal models. I do not believe that a single ideal legal model fit for any and all national situations, may really exist. The social and historical situation of religion is different in Italy and in the United Kingdom, and the religious pluralism of United States is unknown in Greece. The fact that France is one of the countries most often criticised today for its conservative approach to religious liberty may serve as evidence that separation, per se, does not guarantee more freedom and less discrimination. The "wall of separation" model works very well where it is part of a national tradition, as in The Netherlands or in the United States, but I doubt that it would work equally well in Italy, Austria, or Greece. Multiple recognition instances have created a rather minority-friendly environment in countries such as the United Kingdom, where the existence of established churches has not prevented non-established churches from enjoying a religious freedom larger than in most other countries. My conclusion, here, is that the legal model a country finally selects is less important than the general philosophical approach to religious liberty. What I have called the liberal approach is more minority-friendly than the conservative approach, no matter what kind of legal model it interprets.

Those favouring the conservative approach to the limits of religious liberty today are often in trouble before bodies such as the European Court of Human Rights, international conventions, and investigations of religious intolerance by international bodies such as the OSCE. They often answer that a conservative approach is necessary because some religious minorities are indeed dangerous. "Cults" or "sects" are often mentioned, together with different kinds of "fundamentalism" (primarily Islamic, but occasionally also Hindu and Christian). However, many popular ideas about "sects" and "cults" are almost unanimously rejected as simply false by the international community of scholars of new religious movements. This is particularly true for ideas about "brainwashing" and "mind control", which find little acceptance among the large majority of social scientists, whilst they can be easily used to discriminate against any group perceived as so "strange" that, by definition, it cannot be joined out of free will [9]. It is unfortunate that a well-organised anti-cult lobby has the ear of some Western governments (particularly in Europe), which actively promote its biased ideology. Although some real problems do exist, many groups are simply discriminated because they look strange, exotic, or bizarre.

The late sociologist Roy Wallis introduced a well-known distinction between world-affirming and world-rejecting religious movements [10]. By way of analogy, we may distinguish religious organisations in three main groups. The first is society-affirming, and its values are mostly those of the social majority in a given country. For new groups, it may take time for society to recognise that such is the case, but no major problems should normally be expected. The second category includes religious organisations whose values are mostly alternative (and at times radically alternative) to those of the social mainline. These groups are not systematically engaged in any criminal activity (at least if the notion of criminal activity is confined to common crimes; occasionally, these groups are suspected of crimes of their own, and law are criticised for not yet including these allegedly "new" crimes). The third category represents the rather extreme (and fortunately rare) case of criminal religious movements, whose very existence is centred on the perpetration of common crimes ranging from rape to terrorism, from child abuse to homicide and organised mass suicide. The very idea of criminal religious movements may sound absurd to a public opinion largely persuaded that religion is necessary benign. Unfortunately, such is not necessarily the case. Very few historians of religion would doubt that human sacrifice may be for the perpetrators a deep religious experience, and some groups practising forms of holy terrorism really believe that they are faithfully serving God. At any rate, definitions of religion vary, and labelling criminal religious movements as "pseudo-religious" seems to be a mere word game. It is at any rate obvious that such groups should not be tolerated, should be closely monitored, and repressed when they act according to their unhealthy principles (in this case they are repressed as criminal, not as religious organisations). The same, of course, should apply to individual criminal behaviour within non-criminal religious organisations. Pedophile priests or pastors cannot be protected by principles of religious liberty. At least theoretically, however, the first and the third category (society-affirming and criminal movements) are less difficult to be dealt with. The main problems arise when society is faced with society-rejecting religious minorities and groups which, without being criminal, live according to principles and norms very much different from those prevailing in the larger society. This is the situation of a number of new religious movements, as well as of a number of organisations within the Islamic tradition (and, occasionally, within the Hindu or other Eastern traditions, while Buddhism appears more society-affirming in most of its Western forms).

It is precisely society-rejecting organisations that test religious liberty. It is easy enough to protect popular religions. They are already protected by their own popularity. Unpopular religions (not to be confused, as mentioned earlier, with criminal religious movements) need the strong protection of the law. Ultimately, it is not very important what legal model is selected, and different models may be appropriate for different countries. Secularism with no forms or recognition or registration for any religion is an acceptable model for some countries, but it does not automatically guarantee religious liberty. The latter is compatible with multiple recognition systems (provided that criteria for recognition or registration are open, and not limited to society-affirming religions). As proved by the experience of a number of countries, it may even be wise, or at least unavoidable in some countries, to include in a law on religion (or in the Constitution itself) a reference to the unique contribution one or more churches have historically provided to the national identity, if this is coupled with an equally strong reminder that a free society cannot tolerate any form of discrimination against smaller or more recent religious organisations. What is more important is to adopt a clear stand in favour of religious liberty, and a not too restrictive definition of its corresponding limits. Personally, I believe that only what I have called the liberal approach to the questions of the limits of religious liberty may really protect the less popular minorities within the contexts of present-day Western religious pluralism. Laws should clearly state that religious liberty may be limited only for the sake of the basic human rights. Religious liberty is of a higher value than most laws currently in the books of every country. While the conservative approach claims that religious liberty is limited by almost any existing law, I would argue that, when laws have the effect of limiting religious liberty, they should be amended. Yes, there should be provisions to prevent criminal religious movements (rare, but unfortunately existing) from abusing religious liberty. But by no means should we restrict religious liberty to society-affirming organisations. Historically, religions whose values were radically different from the larger society have often played a positive and important role. Be it as it may be, the main test of religious liberty, in any country, will be how well the laws, old or new, will be able to protect small, poor, society-rejecting or unpopular religious minorities. On this test genuine humanism, be it religious or secular, has an important and highly moral word to say to contemporary Western world.

NOTES

[1] [back] On moral panics see Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis, New York and Oxford: Oxford University Press, 1996; Id., Moral Panic: Changing Concepts of the Child Molester in Modern America, New Haven and London: Yale University Press, 1998. On moral panics and religious minorities see my "Chi ha paura delle minoranze religiose? La costruzione sociale di un panico morale", La Critica Sociologica, 127 (August-November 1998): 1-12 (English translation: "Who is Afraid of Religious Minorities? The Social Construction of a Moral Panic" available from CESNUR’s web site https://www.cesnur.org/testi/panici98.htm).

[2] [back] That Germany applies in fact the multiple recognition model has been recently recognised by a number of legal scholars: see Francis Messner, "La législation cultuelle des pays de l’Union Européenne face aux groupes sectaires", in Françoise Champion - Martine Cohen, Sectes et démocratie, Paris: Seuil, 1999, 331-358.

[3] [back] The labels "liberal" and "conservative" have no political meaning in this context. In fact the "liberal" approach to the limits of religious liberty is often advocated by politically conservative scholars and activists, and vice versa.

[4] [back] On the American discussion see my "New Religious Movements and the Law: A Comparison between Two Different Legal Systems - The United States and Italy" in Eileen Barker - Margit Warburg (eds.), New Religious and New Religiosity, Aarhus - Oxford: Aarhus University Press, 1998, 276-291.

[5] [back] See on this point Alessandro Ferrari, "Le minoranze confessionali in Italia", paper read at the Conference "La Christian Science: una minoranza religiosa in Italia" organised by CESNUR and by the University of Turin, Turin, November 10, 1997 (page 5 of the typescript).

[6] [back] Catechism of the Catholic Church, Section 2109.

[7] [back] Intervention of the French delegation at the OSCE Supplementary Meeting on Freedom of Religion. Vienna, March 22, 1999.

[8] [back] Danièle Hervieu-Léger, La Religion en miettes ou la question des sectes. Paris : Calmann-Lévy, 2001.

[9] [back] The best treatment of the controversy is in the doctoral dissertation of Dick Anthony, "Brainwashing and Totalitarian Influence: An Exploration of Admissibility Criteria for Testimony in Brainwashing Trials", Ph.D. Dissertation, Berkeley (California): Graduate Theological Union, 1996. By the same author, see the criticism of a contemporary French application: Dick Anthony, "Pseudoscience and Minority Religions: An Evaluation of the Brainwashing Theories of Jean-Marie Abgrall", Social Justice Research 12 (1999): 421—456. For the use of the category in Western Europe see James T. Richardson — Massimo Introvigne, "‘Brainwashing’ Theories in European Parliamentary and Administrative Reports on ‘Cults’ and ‘Sects’", Journal for the Scientific Study of Religion, forthcoming.

[10] [back] Roy Wallis, The Elementary Forms of the New Religious Life, London: Routledge & Kegan Paul, 1984. He also introduced a somewhat minor category of "world-accomodating" movements.