CHANCHARADE

2.1 Whether to define religion

For a large, possibly its most important part, religion exists in the inner world of the believer. As long as it would remain there, there would be no urge in finding a definition of religion.

No man can, if he would, conform his faith to the dictates of another. All the life and power of true religion consist in the inward and full pervasion of the mind; and faith is not faith without believing.

While Locke’s Letter concerning toleration was revolutionary at the time, it is now considered keynote of democracy that States can nor should have any control over peoples’ minds. In this respect, there is no difference whether it regards just an idea, an opinion, a political or philosophical conviction, or a religion.

Only when someone claims to act on the basis of a belief, we feel the need to assess the existence and meaning of that belief. And this is only so, if he claims to have a freedom to act, which would not exist if he were not acting on the basis of a belief. Then, the need to define religion arises, in order to be able to determine the scope of freedom of religion. But reversely, the meaning and purpose of freedom of religion may equally influence the content of a legal definition of religion.

In fact, it has been argued, that the meaning and purpose of freedom of religion would not allow for a definition of the term ‘religion’. As will be more elaborately set out in the next chapter, freedom of religion requires a certain neutrality from the State with regard to religion. If the State takes it upon itself, it is submitted, to determine what the limits of religion are, or what its core aspect is, then how can it claim to be neutral? In fact, it then decides what religion is and thus what it should be.

Any definition of religion would seem to violate religious freedom in that it would dictate to religions, present and future, what they must be.

A neutral State, it is consequently suggested, should not be bothered with defining religion at all:

L’Etat indifférent n’a pas a se demander ce qu’est une religion puisque par principe il n’en professe ni n’en connaît aucune.

The suggestion that any definition of religion violates religious freedom is similar to that which states that all law is a breach of freedom. The State is seen as an intruder in an otherwise autonomous condition. The condition referred to as ‘freedom’ or ‘religion’ can never be fully realized or protected by the State, as it is autonomous in essence. But as soon as it is accepted that the State has a role to play in its protection, they need to be translated somehow into the legal system. Hence, one cannot accept that a State should guarantee religious freedom, but cannot define religion for this purpose. A definition of religion, for the purpose of religious freedom, limits religious freedom to certain addressees - and it should, as legal freedom is defined by its limits. As a consequence, it privileges those who have it. In reality, these privileges are equally granted to all other people as far as their internal freedom of thought,, conscience or religion is concerned. In its external manifestations, religious beliefs are privileged only in so far as they do not interfere with public order, health, morals or the rights and freedoms of others. From this perspective, freedom of religion is really nothing earth-shaking. But the fact that these privileges exist can only mean that there is something about religion that justifies privileges – and any such conclusion only underlines the necessity of a legal definition of religion.

2.2 How to define religion

In the next chapter, I discuss the principle of separation of State and religion and I explain that freedom of religion requires a certain neutrality from the State with regard to religion. In a very basic form, this principle suggests that the fact that someone believes, and what the person believes, should be of no interest to the State, in any case no reason for differential treatment. Also the question whether someone believes or not, is not supposed to be of any interest to the State.

Those are not at all to be tolerated who deny the being of a God. Promises, Covenants and Oaths, which are the Bonds of Humane society, can have no hold upon an Atheist. The taking away of God, tho but even in thought, dissolves all.

For Locke, faith and toleration were tightly connected. On the basis of his work lies the conviction that an atheist could never grasp true equality. The awareness of the existence of God, as Waldron has explained, puts people according to Locke in a dignified position, conscience of their equality before God. Die gleiche Gotteskindschaft aller Menschen.

While some authors still carefully suggest that the special value of religion lies at the basis of religious freedom, it is nowadays generally assumed that the purpose of religious freedom is not religion, but freedom. The freedom to choose or change religion, could be obstructed by a State which acknowledges only certain types of religion. The principle of neutrality, while clearly not preventing a definition of religion, does urge oblige to cautiousness in finding one. If a definition is too narrow, its effect is that certain privileges do not apply to certain (groups of) people who consider themselves religious, and may even be regarded so by others, only because the State considers that they are not. The State then would discriminate and thus not be religiously neutral. The more privileges or claim-rights associated with freedom of religion, the more this is the case.

As a consequence, it has been suggested that only a believer can define his own religion. Psychologically spoken, this is certainly true. But here again the legal context is overlooked: it cannot be left to the individual to define whether he fulfils the legal criteria of religious freedom. Self-definition to that extent could, as it has been argued “allow a flood-gate of claims, some of clearly non-religious nature., and be judicially illimitable”, although the extent to which this is the case depends of course on the actual privileges and claim-rights associated with religious freedom. In the end, it is up to the judge and/or the legislator to define the limits of religious freedom, in order to ensure its protection. If they define religion for this purpose, they will need to exercise some restraint: they will have to identify religion, without judging on whether they consider this religion desirable or not. In similar reasoning, the High Council of the Netherlands has stated:

The civil Court should not choose position in disputes regarding belief and confession and notably may not make its judgement on any point of law dependent on his opinion regarding theological doctrines, on the accuracy or inaccuracy, or on the importance of which there is divergence.

From this principle of ‘interpretative restraint’, it follows that a judge – or a legislator – cannot deny the existence of a religion or belief by suggesting that a certain conviction is not the majority’s conviction. Neither then should the judge depend upon religious authorities in order to determine the actual contents of a religion or belief. Such method could deny one’s freedom to change religion or to divert from it. As we will see in the next paragraph, the fact that the ECHR at times has depended on religious authorities to determine whether there is a manifestation of belief has hazarded its neutrality.

Several approaches can be distinguished to define religion. Each of them has drawbacks from the perspective of neutrality. Firstly, content-based definitions try to define religion on the basis of its characteristics. The most commonly raised objection against this type of definitions, is that it has a substantial risk of being either over or under inclusive. A definition on the basis of contents is necessarily empirical, based on one’s own experience with religion, and could as a consequence be “Western-biased”. Broader content-based definitions on the other hand are likely to be too vague to have any added value for legal use. “Belief in a non-material reality”, or “transcendent reality” for example, are terms provoking about as many questions as the terms ‘religion’ or ‘belief’ themselves. Attempts to be more precise has resulted in definitions like:

Religion is a manifestly non-rational (i.e. faith-based) belief concerning the alleged nature of the universe, sincerely held.

Or:

Religion is a faith-based system of beliefs and actions that makes reference to a supernatural reality that dictates the believers perception of good and evil, and answers questions arising from the existence of such forces.

There are three main problems with these definitions. Firstly, whereas the first two definitions can be criticised for being too broad and vague, the latter two may be too explicit and narrow. One could, for example, think of a belief that is rational in essence, but does not deserve to be placed simply in the category of opinion or ‘ideology’ and which consequently would deserve to fall under the regime of ‘religions’. In the Seeger-case, a famous case in the United States which dealt with a definition of religion, Congress had tried to define religion as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not involving] essentially political, sociological, or philosophical views or a merely personal moral code”, only to let the Supreme Court decide that the ‘Supreme Being’-requirement should be interpreted quite differently than actually involving a Supreme Being. Secondly, even if we find that these definitions describe some of the essential characteristics of religion, they do not make the task of determining whether something falls under this definition much easier. In fact, they only seem to increase the number of words that need to be interpreted. Terms as ‘manifestly non-rational’ or ‘supernatural’ are not abundantly clear. Thirdly, the last two definitions have components that are possibly essential, but extremely difficult to assess in a legal context. Feofanov suggests that a religion should be sincerely held, while Oldham finds that believers must necessarily be dictated by their religion. How is a secular Court to judge the sincerity of an individuals belief? Even if it practically could, such religious judgements are principally undesirable.

The same objection can be raised against a second type of definition, of which this last component really forms part: functional definitions refer not to the content of religion, but to its function in people’s life. A well-known example of a functional definition is that of “ultimate concern” by theologian Paul Tillich, to which the Supreme Court refers in the earlier mentioned Seeger-case. If it is indeed a distinctive feature of religion or belief that it forms the ‘ultimate concern’ of the believer – which could very well be the case – then probably atheism and humanism would not be part of it. On the other hand, everybody may have some ultimate concern, regardless of its content. As a result, political convictions too could be regarded as religious. A second weakness of functional definitions, besides that of provability, is thus that it is likely to be over inclusive if not complemented by content-based criteria.

A last type of definition is always combined with one of the above - and therefore it necessarily also adopts its weaknesses. An analogical definition compares belief to something that is undoubtedly a religion or belief, such as Christianity. In the same Seeger-case, the Supreme Court finally decided:

The test of religious belief within the meaning of the exemption is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.

Analogical are popular among legal scholars, as they are the least explicit with regard to what religion should be and consequently bear less risk of being under inclusive. This instantaneously shows their main disadvantage: they are embraced for the reason that they are, simply put, vague. Moreover, relying on an ‘uncontested’ religion, they may be biased with regard to new religious movements or non-western religions that do not have the same ‘clear’ characteristics. And even if they do have aspects in common, it could be argued that they lack just what really makes a religion, religion. Then, an analogue type of definition only camouflages the real disadvantages of the content-based or functional type of definitions it is based upon.

There are, in short, drawbacks to all methods of defining religion. Probably, all one can do is try to diminish these drawbacks as much as possible. In practice, this is most often done by using a combination of methods, or – for the most part – not defining religion at all.


2.3 Who defines religion

Judges and - to a far lesser extent- legislators have used various approaches toward defining religion, with mixed results. Not always, it seems, have they realized the consequences of their methods for freedom of religion and State neutrality.

The Legislator: religion and belief in travaux préparatoires
Constitutions and human rights treaties often refer not only to religion, but to “religion and belief” in provisions about religious freedom, without distinguishing between those two. The European Convention on Human Rights, which ay serve as a general reference for the purpose of this thesis, refers in article 9 to the freedom of “thought, conscience and religion”. In addition, it specifically mentions the right (which is really a freedom) to change and to manifest religion or belief. On this basis, Evans suggests that ‘thought and conscience’ must be somehow distinct from ‘religion and belief’, as there is a non-derogable obligation to protect the right to freedom of thought and conscience, but there is, contrary to religion and belief, no right to manifest them.

We do not need to distinguish between ‘religion’ and ‘belief’, as such distinction is effectively not made in legislation or in judgements. Trying to define the separate terms is then likely to create more confusion rather than less. A narrow definition of ‘religion’ may lead to a broader definition of ‘belief’ and vice versa. An attempt to distinguish between religions and beliefs thus only provokes ‘unnecessary disagreement’. Rather we may safely assume that it follows from the combination of ‘religion’ and ‘belief’ that religious freedom applies not only to traditional religions, but also to other types of religion or belief. This is a nowadays generally accepted viewpoint also in the United States, where – contrary to most European sources – reference is made to ‘religion’ only.

In a few rare occasions only, the drafters of provisions on religious freedom have tried to provide more explicit explanations of what “religion or belief” should be. At the drafting of the first important treaties on human rights it was apparently assumed clear what ‘religion and belief’ refer to. The Consultative Assembly to the European Convention simply recommended that “the Convention include a right to freedom of thought, conscience, and religion as laid down in article 8 of the Declaration of the United Nations”. Due to the fact that the original proposal had spoken only of ‘freedom of religious practice and teaching’, Evans concludes that the amended recommendation intents to acknowledge the importance of religious belief compared to practice, and to include also non-religious beliefs, such as atheism, in the scope of religious freedom.

While the drafters of the European Convention on Human Rights thus relied on the Universal Declaration, the latter did not give any more clues regarding the meaning of ‘religion and belief’, or its position in relation to ‘thought or conscience’, except that ‘religion an belief’ should be ‘interpreted broadly’. Van Boven notes that the French text of the Declaration was amended, changing the original words ‘religion ou croyance’, into ‘religion ou conviction’, which is supposed to have a less religious connotation.

The drafters of the International Covenant on Civil and Political Rights too, indicated that the term ‘belief’ should be interpreted broadly. In accordance with this, the Human Rights Commission stated in a General Comment:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess an religion or belief. The terms belief and religion are to be broadly construed. Article 19 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

Lastly, the drafters of the Declaration on the Elimination of all forms of Intolerance and of Discrimination on the basis of Religion or Belief had hoped to include, by analogy with all other treaties in the Discrimination series, a definition of religion. Krishnawami had indicated in a pre-study:

In view of the difficulty of defining religion, the term ‘religion or belief’ is used in this study to include, in addition to various theistic creeds, such other beliefs as agnosticism, free thought, atheism and rationalism.

Most experts participating in the debate, agreed that ‘belief’ should include non-religious beliefs, but the group remained divided on the question which non-religious beliefs should be protected. Experts representing Argentina and Afghanistan thought that Krishnawami’s proposal did not sufficiently express the essence of religion, which they felt should not be equated with other forms of belief. Van Boven’s account of the discussions shows how the cultural backgrounds of the experts shaped their ideas of what entails a religion or belief. A first draft of the treaty’s intended article 1, stated that “’religion and belief ‘ shall include theistic, non-theistic, agnostic and atheistic belief”. On the request of the expert from the Soviet Union, the term ‘agnostic’ was withdrawn for reason of being too vague. Eventually, the Committee of Experts chose to leave the decision on the wording of the article up to the Commission, which finally decided not to include any definition in the Declaration.

There is equally little to be learned from the drafting of national constitutions. England, lacking a written constitution, has adopted a Bill of Rights which uses the exact same words as the European Convention and without redefining their meaning. In France, lacking a constitutional catalogue of fundamental rights, the Declaration des Droits de l’Homme et du Citoyens mentions the freedom of opinions, mêmes religieuses. The Polish constitution refers to ‘faith and religion’, while the constitution of the Netherlands speaks of ‘godsdienst en levensovertuiging’, which literally translates as ‘religion and life conviction’. Notably, the term ‘levensovertuiging’ was introduced by the Dutch Humanist association. The Dutch government suggested that the parataxis of ‘religion’ and (life) conviction would set an interpretative standard, without further indicating what exactly this standard entails. According to Vermeulen it means that the term of life conviction should be interpreted in the light of the term religion. This, he suggests, implies that there should be a coherent view of life, such as humanism and anthroposophy, to be distinguished from political and societal convictions which are protected by the freedom of speech.

Government: registration of religions and anti-cult policies
Governments usually define religions only indirectly, by applying or not applying general policy or legislation to certain religions or religious organisations. This is the case for example if they grant or refuse to grant (construction) permits or if they decide to allow legal (tax) exemptions. Authorities do not explicitly define religion in such circumstances, but they need to decide whether an organisation falls under a description (often not more than the word itself), usually provided by the legislator.

From this situation may be distinguished that, in which governments -possibly on the initiative of the legislator- develop policies which are strictly applicable to certain religions only; which explicitly aim at causing an effect for those (religious) organisations that fall under its description. This is in particular the case with France’s anti-sect policy and the Polish system of registering religions. In both regimes, the total scope of rights, privileges and immunities may depend on criteria which determine the understanding of ‘religion’ or of ‘sect’. For this reason such practices area potential hazard to the principle of neutrality of the state. The European court on Human Rights noted in the case of Manousakis versus Greece that:

The right to freedom of religion as guaranteed under the convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.

In a policy or registration of religions, governments will have to be extremely careful in order not cross the line between setting legitimate criteria in order to determine what is a religion or belief and setting criteria to determine what religion or belief is legitimate. The Bulgarian legal registration requirement is in this respect on the edge of (or quite possibly beyond) the allowable, as it does not permit the exercise of religion to those beliefs, which are not registered.

In Poland on the other hand, registration is only optional and unregistered religions or beliefs may still freely be exercised in public. Registration, on the basis of the 1989 Statute on Freedom of Conscience and Creed, leads to certain additional privileges and immunities, such as reduced taxes and duty-free importation of office equipment. The Statute originally provided that religions could register at the Office of Denominational Affairs by submitting the names of fifteen Polish citizens belonging to the group and by additionally providing general information about it. Due to the rapidly growing number of registered religions, these criteria were sharpened in 1998, requiring – among other things – one hundred names of adherents.

In 2006, there were 146 registered religions in Poland. The registration policy itself is – according to the US religious freedom report – ‘often a formality’; there are no cases known of registration being refused. As a consequence of this formalistic approach, the Polish registration policy is - contrary to that of Bulgaria - only of limited importance for the scope of religious freedom in Poland.

A different example of authorities defining religion – and one with more consequences – is the active anti-sect policy as pursued by France and Germany. Also on a pan-European level, there have been numerous official requirements about new religious movements and cults, resulting in an equally large number of reports.
New religious movements, sects, or cults, are often seen as a possible threat to individual autonomy and mental and physical wellbeing. For a religious movements to be new or not should not make a difference as far as religious freedom is concerned.

Freedom of religion and belief is indivisible and all religious or belief-based movements, regardless of their length of existence, geographical origin or ideological foundations, must benefit from all the guarantees attaching to respect for the right to freedom of thought, conscience, religion or belief.

In consequence, the latter category includes religions such as Ahmadis, Baha’is, Pentecostals, Jehovah’s Witnesses, Seventh Day Adventists, spiritualist religions, Hare Krishna, Scientology and the “Family of Love. Only if there are real risks for a persons mental or physical health, freedom may be limited on the basis of article 9(2) ECHR.

The shared concern of different countries regarding the influence of sects has not lead to a uniform approach to new religious movements. The Church of Scientology and the Jehovah’s witnesses are in some countries suspiciously regarded due to their supposed sectarian character, while in others they are treated as normal religions. The relevant question here is, to what extent the categorization of a belief as a sect changes the scope of its religious freedom per se, as a consequence of the definition of ‘sect’ or ‘religion’, rather than as a consequence of its actions.

In England, this discussion focussed mostly around the Church of Scientology. In 1999, the Charity Commission denied its application for a charitable status. The Commission, while stating that it took into account the principles of the ECHR, decided that the Church of Scientology could not be registered as a charity, for the main reason that it was not a religion for the purpose of English Charity Law. Although it considered that the legal authorities establishing the meaning of religion in charity law were ambiguous, it concluded that the definition of religion was characterised by “a belief in a supreme being and an expression of belief in that supreme being through worship”. The Commissioners added that they “did not find themselves compelled to reject the concept of theism altogether nor to accept the abstract concept of the notion of a supernatural thing or principle”. Nevertheless, the Commission had already accepted Buddhism as a religion with Charitable status, despite the lack of any kind of supreme being or ‘thing’. Any doubts were removed by the newly adopted Charities Act, which states explicitly that ‘religion’ for the purpose of that Act includes religions which involve belief in more than one god, and religions which do not involve belief in a god. But it was not on this ground that the Charities Commission refused Scientology its charitable status, for it accepted that Scientology believed in a Supreme being. The auditing and training provided by the Church of Scientology however, were according to the Commission not in their essence exhibitions of reverence paid to a supreme being and such not regarded as worship for the purposes of charity law.

In France too, the Church of Scientology has fought a long battle to be regarded as a normal religion, with little success. In 1992, Scientology complained that the State had breached the principle of neutrality and freedom of religion, by subsidising a brochure containing information on sects. But according to the Conseil d’Etat, the risks involved with the practice of certain organisations legitimized such intervention.

The Special Rapporteur on Freedom of Religion notes in her 2006 report after a mission to France, that groups have complained about difficulties to building places of worship and lack of access to detention facilities. These difficulties particularly hit those groups included in a list drawn in 1995 by the parliamentary commission Gest-Guyard on Sects. The Commission, while referring to sects as controversial groups, “leurs pratiques [dites] dangereuses pour l’individu et pour la colletivité”, does not define the term ‘sect’, stating that – as with religion - such would be contrary to the French conception of Laïcité. It nevertheless distinguishes certain criteria that may help recognizing a religious movement as a sect. On this basis, it identifies no less than 172 sects in France, under which Jehovah’s witnesses and the Scientology church.

The list was a first of its kind and would come to play a large role in the government’s anti-sect policy. Part of this policy exists in the legal combat against sects on basis of the earlier law on the prevention and repression of sectarian movements, better known as the About-Picard-law, which had not defined ‘sect’ either, nor included references to organisations considered as such. The list also got to play an important role in the activities of the governments’ anti-sect ‘observatory’; following a proposal of the Commission, the Mission Interministerielle de Lutte contre les Sectes (MILS) was created, replaced in 2002 by the Mission Interministerielle de Vigilance et de Lutte contre les dérives sectaires (MIVILUDES). In Janurary 2005, MIVILUDES published a guide for public servants, instructing them how to spot and combat dangerous sects. The guidelines suggest that more precise criteria should be established by authorities to clarify their approach to sects. In a circulaire on the struggle against sects, issues by departing prime minister Raffarin later that year, he states that the list drawn up by the parliamentary commission ten years before had become less pertinent and that preference should be given to the drawing of criteria to identify sects. Consequently, the issue of a definition of sects is still undecided in France.

The Special Raporteur on freedom of religion of the United Nations states in her report of 2006 that “the policy of the government may have contributed to a climate of general suspicion and intolerance” toward the communities involved in this list, and that it has “negatively affected the right to freedom of religion or belief of some members of these communities or groups”.

Courts: Religion and belief in case law
Judges need to seek a balance between the necessity to determine whether or not a certain conviction is a religion or belief and the need for abstinence, or reservation, to judge the content of that religion. It was argued earlier that while on the one hand the fact that someone is religious should be of no importance to the State, it Is on the other hand indispensable to find a legal translation of religion in order to make religious freedom a legal enforceable fact.

The European Court on Human Rights, and previously the Commission, have dealt with this dilemma basically by avoiding it. Their approach has mainly been to declare cases admissible under article 9(1) of the Convention, without explicitly verifying to what extent they fall under the term ‘religion or belief’, and to subsequently determine that there had been either no manifestation of religion or that the limitation of the manifestation was allowed under article 9(2). Following this approach, the Court and Commission have dealt with cases concerning different variations of Christianity, Judaism, Islam, Hinduism and Buddhism, but also atheism, , pacifism, the Scientology Church, the Moon-sect, Druidism, the Divine Light Zentrum, and indirectly even Communism, Nazism and an association of doctors with anti-abortionist views under article 9.

Despite this seemingly endless range of convictions which have been dealt with in the light of article 9(2), the Court and Commission have also formulated some general boundaries for a belief to fall under the scope of article 9(1). These boundaries aim at distinguishing religion or belief from merely opinions or ideas. In the case of X v the United Kingdom, concerning a demand that ashes be spread out rather than buried on a public cemetery, the Commission found lacking a ‘coherent view on fundamental problems’ and consequently refused to accept that this wish was part of a religion or belief in the sense of article 9(1). Coherency is a reoccurring requirement in the case law of the Court and Commission. The criteria most referred to in this regard have been developed not relation to article 9, but to article 2 of the first Protocol, which deals with the right to education in accordance with the religious and philosophical convictions of parents. In the case of Campbell and Cosans v the UK, the Court held:

In its ordinary meaning the word "convictions", taken on its own, is not synonymous with the words "opinions" and "ideas", such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is more akin to the term "beliefs" (in the French text: "convictions") appearing in Article 9 - which guarantees freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency, seriousness, cohesion and importance.

The case dealt with the objections of parents against the corporal punishment as a disciplinary measure in the school of their children. The Court noted:

The applicants views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of corporal punishment entails. They are views which satisfy each of the various criteria listed above; it is this that distinguishes them from opinions – that might be held on other methods of discipline or on discipline in general.

In the light of these words, the Court could have judged differently in the case of Pretty v United Kingdom, where it refused to accept an article 9-claim from a woman who had requested her husbands immunity if he were to assist her in her suicide. The woman, suffering from a degenerative and incurable illness, as a result of which she was paralyzed, wished to choose her own death. The Court however “did not doubt the firmness of the applicants views concerning assisted suicide, but would observe that not all opinions or convictions constitute beliefs in the sense of article 9(1) of the Convention”. While thus suggestion that the woman’s conviction does not constitute a belief in the sense of article 9, the Court also submits that her claims do not involve a form of manifestation of a religion or belief, recalling its standard formulation that “the term ‘practice’ as employed in article 9 (1) does not cover each act which is motivated or influenced by a religion or belief”. The Court thus leaves undecided whether there was in fact no religion or belief, or no manifestation of a (then necessarily existing) belief.

This has been the general difficulty in the Courts approach with regard to the scope of freedom of religion or belief. While acknowledging that it’s role in defining religion is as inevitable as it is complex, the Court has developed two paths to deal with this complexity, but has not been able to take one in full and follow it through. As a consequence, in the case law of the Court and the Commission, we see on the one hand the intention not to define religion, but to instead pursue a narrow definition of a manifestation of religion as under article 9(2). This approach is quite well defendable from the perspective of separation of State and religion, as it prevents too much interference of the State with the contents of religion; it expresses the view that what someone beliefs is not a matter which involves the State, but that the public expression of such belief may require State intervention. Simultaneously however, the Court has felt the need to a priori exclude some types of beliefs from the scope of article 9, suggesting that they lack certain features indispensable for a religion or belief in the sense of that article. What those features are, has not been determined any more precisely than in terms of ‘coherence, cogency, importance and seriousness’. The general character of these terms assumingly serves at restricting the Courts role in its interpretation of their applicability, fearing that more precise criteria might unjustifiably exclude certain beliefs.

These criteria also seem to be broadly accepted by national Courts. In the case of Regina v Secretary of State of Education and Employment, lord Nichols of Birkenhead states:

The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. […] It must be a belief on a fundamental problem. […] The belief must also be coherent in the sense of being intelligible and capable of being understood. […]

Lord Walker from Gestingthorpe however suggests in the same judgement that “for the Court to adjudicate on the seriousness, cogency and coherence of theological beliefs is to take the Court beyond its legitimate role”. He claims that only in clear and extreme cases a claim to religious belief could be disregarded entirely. This was in his view the case in X v United Kingdom, where the Commission concluded that “the applicant [had] not mentioned any facts making it possible to establish the existence of the Wicca religion”. There was a similar case in the Netherlands, involving the ’monastic order of the sisters of Saint Walburga’, situated right in the middle of the red-light-district and claiming to be part of the Satan church. The order argued that, being a religious organisation, the police was legally not allowed to proceed with its regular control visits during its religious activities. The High Council however concluded that these activities could not be distinguished from those of a normal sex club and that religious experiences had been observed with neither the paying customers, nor the women referred to as ‘sisters’.

The threshold requirements regarding religions or beliefs in the sense of article 9 are a possible barrier for more individualistic types of beliefs to find protection under article 9. Surely, for someone with an unknown belief, not organised in institutions or expressed in group manifestations, it is more difficult to prove the coherence and cogency, even the seriousness of this belief. As Evans points out, the case of a man who wished to have his ashes spread out rather than buried on a cemetery full of Christian symbolism, could have ended differently had he claimed to belong to another – non-Christian - religion which objects to such symbolism. While people with more individual types of belief have to prove the existence and coherency of this personal set of beliefs, it seems that anyone can claim to belong to one of the traditional world religions, without the seriousness or coherency of their individual devotion being questioned.

If we look at the limited number of cases that have been dismissed for the reason that the belief at stake was not a religion or belief as protected by religious freedom clauses, we may doubt the necessity for threshold requirements as those developed by the European Court for Human Rights. In fact, all of the cases discussed here above could have ended substantially the same also if the belief itself had not been questioned. In the case mentioned about the man who wished to have his ashes spread out on his own land instead of being buried on a Christian cemetery, the Commission suggests that such whish is not a practice of a believe, leaving in the middle whether the decisive factor was the lack of a religion or belief or the lack of practice. It could have decided the case solely on the basis of the latter argument, without even doubting the religion or belief itself. In the case of the prisoner who wanted to be reregistered as belonging to the Wicca-religion, the Commission noted that there was no evidence as to the ways in which the prison was denying the applicant the right to practice the Wicca religion as there was no evidence that he had ever asked the prison authorities for facilities to manifest his beliefs. There was simply no interference with a religion or belief – of whatever kind. It is therefore questionable if the advantages of these threshold criteria for a religion or belief to fall under the scope of article 9, do in fact outweigh the disadvantages that follow from it for the protection of religious freedom for individuals.

2.4 Toward a definition of religion

The threshold requirements of the European Court do not serve a clear goal in the protection of freedom of religion. To assess the sincerity with which a religion or belief is held, or to judge upon its coherency, brings the judge dangerously close to assessing the contents of the religion or belief itself, which he should avoid doing. The structure of article 9, as well as of other provisions on religious freedom, distinguish between the internal aspect of believing - in the Convention equated with thought and conscience - and the external manifestation of the belief. A definition therefore only serves the latter context. In most cases in which the Court has doubted the applicability of article 9 due to the belief at stake, it could rely on its developed doctrine with regard to the manifestation of a belief.

This does not mean that there is no need to further define religion. While the threshold criteria adopted by the Court may be unnecessarily critical with respect to the issues they address, the Court has been insufficiently critical with regard to the question which types of convictions are otherwise covered by article 9 ECHR. This concerns specifically non-religion and political convictions. Cases concerning the latter, indistinctively dismissed on the basis of 9(2), could and should have been considered under article 9(1) only.

In this paragraph I attempt to draw the contours of a definition of a religion or belief. As argued earlier, an all-inclusive definition might not be possible nor necessary from a legal point of view. A definition for this purpose must be flexible and unbiased without being tentative or vague. A definition of that calibre does not necessarily need to define what the distinctive feature of a religion or belief must be: any definition pointing out an ‘essential aspect’ of religion or belief, risks of being narrowed down only to what the deciding authorities think it should be. We may however determine certain features of a religion or belief and exclude others from its definition.

Beliefs referring to politics, science, culture and so do not fall under the definition of belief. In normal speech, ‘religion or belief’ does not include these types of convictions. In our legal, democratic system this should not be different. An inclusion of political convictions within the scope of religious freedom provisions would in fact undermine the essence of democracy. The more privileges and exemptions involved with this freedom, the more this is the case. An exemption from general legislation on the ground of different political convictions would negate the democratic system of decision-making, granting a privilege to live by one’s own standard rather than those adopted in legislation by the state. Indeed, the protection of minorities is an essential feature of democracy and this protection includes both political and religious groups. An equal treatment of political convictions to religious beliefs however is not part of this protection and there is no clue in the preparatory works which indicates that it should be. Political convictions are primarily protected by the democratic system, by the freedom of speech and by general provisions on conscience and thought. It is a typical characteristic of the democratic system that political minority convictions, as far as legislation in concerned, may lose out to the political views of the majority…

…or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of Nature. For what appearance would there be of any compact? What new engagement if he were no farther tied by any decrees of the society than he himself thought fit and did actually consent to?

Safeguarding these convictions in the personal life of its adherents via religious freedom provisions would leave the democratic system without consequence, while it would expand the political arena to the private sphere. Such practice would weaken both religious freedom - making it diffuse - and the democratic system - making it ineffective.

The types of beliefs which are protected under article 9 are very closely connected to their manifestations, as practice and observance. While authors have often connected the word religio to religare, to bind or connect, thus expressing one’s band with God, Cicero connected it to re-legere, to read again, to re-examine or carefully consider. For legal purpose, the first interpretation is more akin to a sincerity-test, while the second emphasises the narrow connection between religion or belief and its practice. The privileges of religious manifestation are very much inspired by this close connection.

For that same reason, we cannot accept that the mere fact of not believing would also be considered to be a religion or belief for the purpose of article 9 or similar. Above all, such suggestion must be rejected from a logical and analytical point of view. We can simply not define something if we are to include in its definition exactly that which it is not. If we are to identify the absence of a religion, it means that we have identified what is religion, to then subsequently expand its definition to its antonym. A consequence of this inconsistent approach is that privileges would have to be equally granted to those who believe and those who do not (not leaving much of a privilege). State obligations on the ground of religion would be no different than on the ground of absence of religion, reducing the meaning of religious freedom to hardly anything more than a reference to the private sphere or religious thought. Instead, the drafters of the ECHR have chosen to distinguish between the protection of conscience and thought (the forum internum) and that of religious manifestation (the forum externum). The latter does not necessarily need to be religious in the most traditional sense of the word and does not necessarily include a God or similar. It is only a belief in the sense of article 9 however, if it comes together with certain rites and practices, which give religion and belief their special meaning justifying an extended protection compared to general conscience.

Certainly, non-believers are protected by the democratic system no less than believers. But their equal protection lies not in the words ‘religion or belief’, but in the word ‘freedom’. Freedom implies that one is free to act in a certain way or not to act; one does not have a duty to do so. This legal liberty is the core of religious freedom. One is free to believe, hence one is free not to believe. One is free to manifest one’s belief, hence one may choose not to manifest any belief. This does not imply that one is manifesting a belief by not believing anything at all. One is then simply not manifesting a belief.

A religion or belief may be objectionable. An objectionable belief is exactly that: it is a belief, but one against which objections exist. The fact that a belief is said to have a negative effect on people, as some sects, does not mean that it is not a belief, but only that it is possibly a harmful belief. Real or suspected harm may lead to the conclusion that the manifestation of such belief must be restricted for the sake of public order, health, morals or the rights of others, but does not disqualify the belief as a belief. The European Court on Human Rights stated accordingly in Mannousakis v Greece:

The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.

The Court’s submission in Campbell v Cosans that a philosophical conviction must be ‘worthy of respect in a democratic society’ and ‘not incompatible with human dignity’, is therefore limited to that specific context - in relation to freedom of education - and does not extend to religions and beliefs with regard to freedom of religion. Many nowadays accepted beliefs were once considered to be respect-unworthy; any belief incompatible with human dignity can only be targeted if it manifests itself in such way, on one of the grounds of article 9(2). Only in supplementary provisions may additional requirements as above be made.

Shortly, for a religion or belief to fall under the scope of religious freedom provisions:
- there must be a complex set of thoughts which is intelligible and capable of being understood;
- this set of thoughts must relate to the meaning of life and the purpose of human beings on the world;
- from this set of thoughts follow identifiable norms and practices about ‘the good life’ which should be obeyed;
- the scope of this set of thoughts goes beyond the realm of the state, state policy and the organisation of society.