Transcript The Law, the Courts, Religious Freedom, and the Evolving

Religious Freedom in the West: Is the
Glass Half Full and Getting Fuller?
James T. Richardson
[email protected]
CESNUR Conference
Baylor University
June, 2014
An earlier version of this presentation was presented in January, 2014 at the INFORM
conference in London. Please do not quote or circulate without permission.
Major Thesis
• Since NRMs burst on the scene in the 1960s and 70s
there have been varying patterns of jurisprudence
involving them as well as other minority religions
• After a brief positive reaction to NRMs in the U.S. the
reception turned quite negative
• This is reflected in reactions by governments and in the
initial results of many court cases and legislative
actions involving NRMs in America and Europe
• But in recent decades there has developed a more
tolerant approach to minority faiths, resulting in
more religious freedom, both in the U.S. and Europe
(but pattern is spotty)
Evidence for Thesis
• Major decisions by national courts in Europe
(Supreme and Constitutional), as well as
especially by the European Court of Human
Rights (ECTHR) (the focus of this presentation)
• Major recent decisions by the U.S. Supreme
Court, as well as by actions taken by the U.S.
Congress and a number of state legislatures
also show support for religious freedom
European Developments
• Great variation in role of religion and tolerance
for NRMs and minority faiths in Western Europe
(radically secular France vs. Netherlands and
Italy; paternalistic Germany; Greece)
• Former Soviet dominated nations made situation
even more complex, with some quite secular
nations, others dominated by officially recognized
churches of differing kinds, while some seem to
genuinely value religious
Major European National
Court Decisions
• Germany’s Constitutional Court and the
Jehovah’s Witnesses (2005)
• France’s Supreme Court ruling in favor of JW’s
access to prisoners (Oct. 2013)
• U.K. Supreme Court ruling that Scientology is a
religion (Nov., 2013)
• Other decisions in various countries such as
the Netherlands and Italy
European Court of Human Rights
• 40 years before an Article 9 (freedom of thought,
conscience, and religion) violation was found;
Kokkinakis case from Greece, 1993
• Timing was propitious, with former Sovietdominated nations coming into the COE: a
message was being sent, using Greece as an
exemplar
• Since 1993 many more violations of Article 9
were found, most from Eastern and Central
Europe, or Greece
ECtHR, continued
• Finally, in 2011, an original Member State (other
than Greece) was found to have violated Article 9
rights
• Jehovah’s Witnesses won major tax case, and
France was ordered to pay a large award as well
• Aumist group and Evangelical Missionary church
also won tax cases in 2013, and France was
ordered to pay large fines to those groups.
• U.K. also involved in one recent Article 9 decision
ECtHR, Continued
• These decision from Eastern and Central Europe,
and from France, seem focused on the right of
religious organizations to exist and function
• Few adjudicated cases deal with individual
religious freedom (such as the right to wear
religious garb or symbols)
• Several Article 9 Russian cases involving refusal to
reregister demonstrate ECtHR’s efforts to work
with constitutional courts and support their
efforts where possible (Salvation Army, Jesuits,
JWs, Scientology and other groups)
United States Developments
• Religious Freedom Restoration Act (1993), after the
Smith case in 1990; declared unconstitutional as
concerning local and state governments in 1997
• Many state level RFRAs then were passed
• Religious Land Use and Institutional Persons Act 2000)
and Wilkinson case (2005) declaring Act constitutional
for institutionalized persons
• “Tea cases” in federal courts demonstrate first wins for
religious freedom over war on drugs
• But some concern about recent pattern of cases
allowing more freedom for dominate faiths
Conclusions
• A pattern of movement in direction of more
religious freedom in the U.S. and Europe is
discernable, even if uneven and slow.
• Caveats:
– Not all minority faiths win their cases in any of the
courts mentioned
– Muslim groups are a special case, encountering many
problems when involved in court cases
– Some troubling counter examples favoring dominant
faiths in both Europe and U.S.
– How can this pattern be explained if it does exist? And
what about exceptions to the pattern?