State and Religion in Europe

Chapter 8
State and Religion in Europe

Giuseppe Casuscelli

A Premise on the Complexity of Europe

Ever since the ‘idea of Europe’1 began to become a concrete historical reality about halfway through the last century, with the formation, development and evolution – still in progress – of two political and institutional realities now represented by the European Council (with its 47 Member States) and by the European Union (with its 27 Member States), relations between Church and State have been marked by events that have not always developed in a linear way.

This is not surprising if we consider how different are the religious and cultural traditions, the forms of State and of government, the geo-political areas, the prospects of economic and social development and so on, of the many ‘Europes’ (Continental, Mediterranean, Balkan, Northern, Eastern, the area of the former Soviet Union, borders with Asia or Africa). We might also consider what different roles have been played by religions (as regards values) and ecclesiastical institutions (as regards powers) in their relations with various societies and with the different State legal systems. Finally, we might consider how the democratic vocation has been consolidated in some European States, how recently democracy has been introduced in others, and how the model of relations based on concordats (or in general on agreements) is a matter of history for some States, while for others the contrary separatist tradition – with its many nuances – has become consolidated.

The multiform models of relations between States and religious communities and the profound transformations in progress2 have been influenced in their turn, albeit to a different extent, by the metamorphosis of the European religious panorama owing to the increasingly widespread interconnection in recent years between ‘religion, culture, ethics and politics’.3 In this varied and multifaceted ‘Europe’ even the different levels of protection of the religious freedom of individuals and of organized minorities can with difficulty be put back together into a tidy, rigorous and complete picture.

This chapter can therefore only seek out the most important lines, in the effort to select data that are credibly stable, lines of change that are reliably recognizable and problems that will predictably become reality in the near future.

The Evidence of the Present

The conviction that Europe is characterized by an accentuated localism of national policies as regards Church–State relations is widespread. This characteristic is expressed by the Declaration on the Status of Churches and Non-confessional Organizations4 in the formula: ‘the European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’. This formula was confirmed by the Treaty of Lisbon, that is by Art. 17 of the consolidated version of the Treaty on the Functioning of the European Union, whose entry into force has been deferred until full completion of the ratifications. Art. 17 provides: ‘1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations’.

The recognized political value of the Declaration has favoured, perhaps, a reinforced (or, better, biased) interpretation to the extent of making it the foundation, in the eyes of many, of the powerful autonomy of single States on the subject of Church/State policy tout court, and of the domestic legislations that give it reality. This autonomy, which would lead to the exclusion in every field of any external interference, has been welcomed by the Roman Catholic Church and the German Evangelical Churches, which appear to be inspired by the egotistic interest to conserve its own specific and special legal statute, anchored to the foundation of the national identity as the limit of Community law, rather than to the foundation of religious freedom as an element of the common constitutional traditions. It is easy to imagine that these appeals may become wholly or in part common to the Orthodox Churches.5

I think, therefore, that with reference to Church/State policy it is possible to speak of a sort of ‘Europe of the nations’, connected to the myth of national sovereignties, just for the discipline of the status of the religious confessions. This status should be understood according to an exegetical criterion which would merit a critical rethink, since these confessions are expressly set on an equal footing as the philosophical and non-confessional organizations. The consequences that derive from this, in any case, seem to go well beyond the literal meaning and the real scope of the formula provided in the Declaration, which may not be considered appropriate for protecting, and in effect has not protected, the area of ‘regional legislation’ regarding (directly or indirectly) individual and collective rights to religious freedom. Indeed, that shield has revealed its fragility ever since the European Court of Human Rights began to deal with the associative dimension of religious freedom, even though it was not expressly contemplated by Art. 9 of the Convention (for example the Court, after reiterating that the right to an autonomous existence of religious communities is indispensable for the pluralism of a democratic society, considered that the lack of recognition of legal status of a religious community protracted for over 20 years interfered with the right of the applicants to exercise religious freedom).6

For a correct, ‘systematic’, second reading of the Declaration the interpreter can take into due account, on the general normative plane, the primary obligation of the Contracting Parties to respect human rights and to recognize for each person the rights and freedoms defined under the first heading of the Convention for the Protection of Human Rights and Fundamental Freedoms. And he should take into account, moreover, the binding provisions of the Treaty on the European Union (the Treaty of Maastricht), according to which the Union on the one hand ‘is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’ (principles expressly declared as ‘common to the Member States’) and on the other hand ‘shall respect fundamental rights, as guaranteed by the European Convention’ mentioned above, and which ‘result from the constitutional traditions common to the Member States, as general principles of Community law’.7

Also important for the interpreter is the evolution of the jurisprudence of the European Court of Human Rights in the light of the recent developments of its pronouncements on the subject of religious freedom, which have meant that its jurisprudence is becoming the point of reference on the subject of fundamental human rights for the organs of the Union8 as well as for the European Council. In this perspective, the relationship between this Court and the Court of Justice, which interprets and applies the norms of the European Convention on Human Rights (ECHR) with reference to the jurisprudence of the former, can contribute to the phenomenon of the incorporation of the material provisions of that Convention in Community law, by means of jurisprudential law.9

The binding provisions cited above have influenced the overall picture to a considerable degree, rendering it less and less homogeneous both on account of the attenuation of the peculiar characteristics that distinguish the various models of relations,10 and because of the support of national legislative activities on the subject of freedom of religion and conviction offered to the new European democracies by the Organization for Security and Cooperation in Europe (OSCE) and by the European Commission for Democracy through Law, known as the Venice Commission.

To the OSCE, engaged in promoting the development of religious freedom particularly through the Office for Democratic Institutions and Human Rights (ODIHR), we owe the drafting of the ‘Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools’11 and moreover – in association with the Council of Europe – of the Guidelines for Review of Legislation Pertaining to Religion or Belief, of significant impact for the democratic characterization of a Church/State policy as ‘uniform’ as possible in the countries of Eastern Europe.

It is therefore believed that convergence, from the ‘extreme’ models of relations towards the centre, is under way in European legal systems. This convergence traces the general outlines of a theoretical model – rendered variously in the reality of the political and institutional experience of the individual States – and is characterized by two factors: the acceptance of a certain public dimension of religion, and the selective and step-by-step support by the public powers of the religious communities that fulfil certain requirements and accept a certain degree of State control.12

Though confirming the distinction between the spheres of competence, this model therefore presupposes and permits a moderate involvement of the State with the religions,13 and at the same time no longer sets at the centre of public intervention the logics and procedures inspired by government control of a centralist – if not authoritarian – nature, but the mechanisms of valorization of individual choices.14

The convergence in question is the fruit of the weakening of the confessional principle in the various regions of Europe and of the consequent interconnection between public and religious bodies. Forms of excessive involvement are looked upon with increasing suspicion, the entanglement between the normative sources and the governing bodies of religious confessions and States is increasingly limited.15 Systems with a State Church, a dominant religion or a Church established by law have indeed become increasingly extraneous to a society which experiences at the same time the achievement of its secularization and the development of its religious fragmentation.

This convergence is also the fruit of the opposite weakening of the principle of laïcité in its meaning of ‘hostile’ secularism, determined by the spreading of a model of separation that has been defined as friendly and collaborative,16 more consonant with the political systems of participative democracy. It is a model that excludes neither recognition nor State support of religious communities, cultivating dialogue between public institutions and religions and, sometimes, even seeking their ‘collaboration’ or ‘cooperation’ commensurate with the historical and sociological factors pertaining to individual countries.17

In synthesis, it is possible to say that ‘the trend towards separation between civil society and religious society, between Church and State’ constitutes a ‘common denominator’, clearly according to a new acceptation that does not impede collaboration, agreements and synergies.18 In Europe a form of contractual separation,19 or of collaborative neutrality,20 is thus becoming established which, nevertheless, raises some questions and requires new solutions.

The development of science has given rise to new issues of an ethical nature, and has paradoxically led to a rapprochement between the religious and the civil spheres, between the sacred and the profane and, sometimes, to the confluence of the former with the latter. If on the one hand the intersections between religion, ethics and culture make it even more difficult than it was in the past to draw distinctions between that which is Caesar’s and that which is God’s,21 on the other there emerges the religious claim to impose on all people (whether or not they are believers) respect for the law of nature, for divine will, and for the truth, which has led some to declare that the real problem today is that of the neutrality of the European legal system towards those who do not believe:22 and this despite the fact that there has been a significant reduction in religious practice in European countries.

A similar ‘democratic interventionism’ by ecclesiastical authorities (especially by the Roman Catholic Church, by means of Bishops’ Conferences) contrasts, nevertheless, with the behaviour of those believers who heed their teachings to a limited extent, neglecting the Church indications and limits on themes of morality and custom: these sometimes believe without belonging, or rather, they belong without believing. It thus seems possible that the ‘theory of the two crutches’ can make a comeback: a political power, which masks its effective weakness in the choice and protection of ‘secular’ values, requests support from the Churches; the Churches, which behind the rigidity of their teachings conceal the difficulty and, in some sectors, the incapacity to dialogue with the modern world, ask the State for full, effective (sometimes exclusive) recognition as agencies of universal values, together with the restitution of ‘civil’ competences which they had lost in the past.23

It is hard to believe that strong convergences have been achieved towards a common law on faiths and convictions. Trends and drives (alongside resistance and barriers) are becoming established, albeit slowly. They are more evident in the European Union, a little less in the Europe of 47, and on the legal plane they depend to a large extent on the role played in recent years by the European Court of Human Rights, ‘as much inside as outside the borders of the Union’.24

Three features can be considered to be widely shared: