Religion, human rights and the State’s role

COMMENTARY – How do we protect the right to freedom of religion? What are the limits of this right? What role does the state play in making sure that freedom of religion and conscience is effectively implemented and at the same time balanced with other rights? These are questions that the following article will try to tackle, bringing in the unique example of Italy as a state where religion has played a fundamental role in the country’s past and present. The complexity of the issue will be highlighted whilst adopting a perspective that places at its core human rights and their implementation.

English

St Peter's Square, Vatican City - Source: Wikipedia

The right to freedom of religion

Article 18 of the Universal Declaration of Human Rights (UDHR) recites:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

The right to freedom of religion and belief is a fundamentally important one which has, however, often been misinterpreted and misunderstood. Religion is a delicate matter that has caused heated debates within the political and legal sphere – starting from the problematic, long-debated issue of the binary relation religion-secularism and private-public religious manifestations. As the UN Special Rapporteur on freedom of religion, M. Heiner Bielefeldt1, has importantly stated, the process of understanding the right to freedom of religion and conscience from a human rights perspective should really start from the human being, without attaching to it any political, social or philosophical connotation. As M. Bielefeldt notes, “Rights  holders  are  human  beings,  who  may  exercise  these  freedoms  as  individuals and in community with others.”2


The adoption of this perspective could, and should, promote tolerance of the diversity of existing world views, nurturing multiculturalism and inter-religiosity. It’s up to the human being, therefore, to develop and try to live with his or her own convictions. As rights holders and active agents that are able to make fully conscious choices, human beings should also be responsible for their convictions and the possible implications on other members of society. Only if interpreted in this way, with the focus on “believers rather than beliefs”3, the right to freedom of religion and belief can be said to fully empower human beings. Both as individuals and as member of a society, right-holders can live in accordance with their own convictions whilst being aware of the different opinions that others might have, especially when the belief or thought is not the one of the majority or the non-traditional one. By doing so, not only rights and freedoms can be respected, but prohibition of non-discrimination - that is, the denial of equality - can be fostered on the basis of religion or belief.4


In spite of the views expressed above on the way in which freedom of religion and thought should be interpreted in the human rights domain, the right protected by Article 18 (UDHR) presents many issues, in reality. The free expression of religious views clashes with the limits and boundaries of the expression itself. Moreover, the exercise of freedom of expression can sometimes violate others’ right to freedom of religion. Thus, many problems have arisen in relation to the reconciliation of freedom of religion or belief and freedom of expression which can seem fundamentally in opposition to each other especially in relation to the forum externum, i.e. the external manifestation of the right. Whilst the forum internum is unconditionally protected for both rights, the external side, which involves interaction in society, can be limited and defined by authorities. The article will now seek to explore what role the state plays in this process.

 


The state’s involvement

How to determine when the state can intervene in shaping the right to freedom of religion and conscience and how far can it go?

First of all, it’s important to point out that, as Professor Paul Taylor5 has stated, the relation state-religion is still a contentious issue, continuously discussed in all its shades. Trying to fulfill this hard task of determining rules of pacific cohabitation and respect in a society, the Special Rapporteur on freedom of religion stated that “States should create favourable conditions for everyone to be able to enjoy this right without fear and without discrimination.”6 Thus, the State has a specific and key role in promoting and defending the right to freedom of religion and conscience, whilst making sure that the right to freedom of expression is also respected. The question however naturally poses itself: how far can the state limit one right to enforce the other? In practice, for instance, how do we limit (if we limit them at all) satirical newspapers and magazines that deal with religion in a way that could be seen as offensive by the believers? There are no answers to these questions; instead, the debate is open and constantly enriched by different views and opinions.


Moreover, another issue that needs to be tackled refers to the idea of the separation of temporal and religious powers. States, in fact, depending on their legal system and on their constitutional tradition, will deal with this separation in many different ways, see for instance France following strongly the principle of laïcité de l’état. In spite of the different systems, however, what ultimately counts is that a real respect and protection of citizens is enacted, whether they choose to believe or not. The state should promote open manifestations of religion and thought, thus combatting discrimination. Once, again, however, when confronted with the forum externum of the right, how can the state determine when to enforce a full enjoyment of the right to freedom of religion or limit it in relation to other factors? See, for instance, the display of religious symbols in public spaces: where do we draw the line?

States need to respect, protect and fulfill human rights standards, making sure that the implementation of the right is efficient and equal for all members of society. In relation to the right to freedom of religion, importantly, “The obligation to fulfil also covers a broad range of promotional activities, such as education about religious and belief diversity as part of the school curriculum, and the building of societal resilience against religious intolerance.”7 It is extremely difficult, nevertheless, to promote these activity when most states remain attached to a strong secularist tradition that has determined the political and juridical choices of many Western countries for several years. Traditionally, as Professor Silvio Ferrari8 states, the separation of religion and state is necessary since we need to preserve the neutrality of the public sphere by protecting the human reason. However, the unique example of Italy will illustrate the peculiarities that the relation state-religion can lead to in terms of human rights protection.

 


Case study: Italy

Italy presents a history of strong ties between state and religion, namely the Catholic one. Even from a geographical point of view, it’s been impossible for Italy to ignore the presence of the Holy See and the implications of its powers within the Italian political, social and cultural tradition. The relations state-church have been traditionally regulated by the “Patti Lateranensi” (1929) which determined the relations between the two institutions, tried to separate them but in reality created strong links between Italy and the Vatican. However, with the 21st century, the possibility for an idea of laicità (similar to the French one) to be introduced and implemented more and more seemed foreseeable.9 With many difficulties, Italy seemed to be able to slowly detach itself from the Church and fundamentally reconsider the “Patti Lateranensi”. However, the long-used argument stating that the majority of the Italian population is Catholic, coupled with the 9/11 events, completely excluded any possibility for an effective change. Up to this day, Italy presents a form of superficial neutrality and effective state-religion separation. In reality, the indissoluble ties that have been created over the centuries are still present and will probably never fully be surpassed, as the case of Lautsi v Italy10 shows.


The case of Lautsi v Italy dealt with Ms Lautsi’s claim that the display of the crucifix in public schools was going against her beliefs as a parent. As Professor Taylor11 reminds us, the State has to respect the right of parents and children when delivering education and this is exactly the principle Ms Lautsi was counting on. The case went to the European Court of Human Rights (ECtHR) and the Grand Chamber of the Court ultimately ruled that the decision whether or not to put crucifixes in classrooms fell within the state’s margin of appreciation, i.e. the state could decide whether or not to display such religious symbol in public schools. According to the Court, “The presence of the crucifix is not incompatible with the right of parents to have their children educated compatibly with their own philosophical conviction.”12

The decision of the ECtHR was highly discussed and criticised. The Court, as Lorenzo Zucca of the King’s College of London pointed out, did not “provide a much needed reflection on the question of the presence of religion in the public sphere”13 and simply stated that the crucifix is a “passive” symbol, part of the Italian tradition and heritage that won’t indoctrinate the pupils. The reasoning, reagarding the idea of “passive” symbol, is completely flawed and tautological in the sense that a symbol – religious or not - can be just as active or passive, depending on the interpretation of it. As Stijn Smet14 also pointed out, the ideas of ‘neutrality’ and ‘secularism’ are completely confused in the judgement, revealing the complexity of the issue but also the conceptual faults of the reasoning given by the judges. “Particularly Judge Power’s concurring opinion demonstrates that fundamental misconception. She states that “[n]eutrality requires a pluralist approach on the part of the State, not a secularist one. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.”15


With the example of Lautsi in mind, how can we not question the interference of the state in matters regarding religion that can hinder an effective implementation of human rights? Ultimately, this case shows how problematic and difficult the issue of religion in the human rights sphere is. It also demonstrates that the role of the state is a fundamental one and that it can be positive in promoting freedom of religion and balancing that right with freedom of expression, but it can also be refraining of human beings' full enjoyment of their rights. The issue remains open for discussion and debate and the Italian case surely could provide fertile soil for more exploration on the matter and the human rights implications of it. Meanwhile, the crucifix in Italian schools is, controversially, yet to be removed.

 


1 United Nations, General Assembly (December 2015) “Report of the Special Rapporteur on freedom of religion or belief”, Human Rights Council, 31st Session, OHCHR. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/291/11/PDF/G1529111.pd...

2Ibidem

3 United Nations, General Assembly (August 2016) “Elimination of all forms of religious intolerance”, 71st Session, OHCHR. Available at: http://www.ohchr.org/Documents/Issues/Religion/A-71-269_en.pdf

4 In accordance with Article 2, Universal Declaration of Human Rights 1948. Available at: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

5 TAYLOR Paul (2005) “Freedom of Religion: UN and European Human Rights Law and Practice”, Cambridge: Cambridge University Press. Available at: https://books.google.ch/books?hl=fr&lr=&id=sS94Lw9eObIC&oi=fnd&pg=PR9&dq...

6 United Nations, General Assembly (December 2015), Op.Cit.

7 United Nations, General Assembly (August 2016), Op.Cit.

8 FERRARI Silvio (2012) “Law and Religion in a Secular World: A European Perspective”, Ecclesiastical Law Journal, 14, pp. 355-370. Available at: http://journals.cambridge.org/abstract_S0956618X1200035X

9 VENTURA Marco (2005) “The permissible scope of legal limitations on the freedom of religion or belief in Italy”, 19(2) Emory International Law Review, 913. Available at: http://heinonline.org/HOL/LandingPage?handle=hein.journals/emint19&div=3...

10Lautsi v Italy (Application no. 30814/06). Available at: http://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22883169%22],%22itemid%22:[%22001-104040%22]}

11 TAYLOR, Op.Cit.

12 ZUCCA Lorenzo (2011) “A Comment on Lautsi”, EJIL: Talk! Blog of the European Journal of International Law. Available at: http://www.ejiltalk.org/a-comment-on-lautsi/#more-3161

13Ibidem

14 SMET Stijn (2011) “Lautsi v. Italy: the Argument from Neutrality”, Strasbourg Observers. Available at: https://strasbourgobservers.com/2011/03/22/lautsi-v-italy-the-argument-f...

15Ibidem

 


MR – Research Assistant at CIPADH

 


Webography

Costituzione della Repubblica Italiana. Available at: https://www.senato.it/documenti/repository/istituzione/costituzione.pdf

CUMPER Peter and LEWIS Tom (2012) “Religion, Rights and Secular Society: European Perspectives”, Edward Elgar. Available at: https://books.google.ch/books?id=lop8kPkU6pQC&dq=

FERRARI Silvio (2012) “Law and Religion in a Secular World: A European Perspective”, Ecclesiastical Law Journal, 14, pp. 355-370. Available at: http://journals.cambridge.org/abstract_S0956618X1200035X

International Covenant on Civil and Political Rights 1966. Available at: http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf

Lautsi v Italy (Application no. 30814/06). Available at: http://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22883169%22],%22itemid%22:[%22001-104040%22]}

Patti Lateranensi 1929. Available at: http://www.vatican.va/roman_curia/secretariat_state/archivio/documents/r...

SMET Stijn (2011) “Lautsi v. Italy: the Argument from Neutrality”, Strasbourg Observers. Available at: https://strasbourgobservers.com/2011/03/22/lautsi-v-italy-the-argument-f...

TAYLOR Paul (2005) “Freedom of Religion: UN and European Human Rights Law and Practice”, Cambridge: Cambridge University Press. Available at: https://books.google.ch/books?hl=fr&lr=&id=sS94Lw9eObIC&oi=fnd&pg=PR9&dq...

United Nations, General Assembly (April 2011) “Resolution 16/18 - Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief”,Human Rights Council, 16th Session, OHCHR. Available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.RES....

United Nations, General Assembly (December 2015) “Report of the Special Rapporteur on freedom of religion or belief”, Human Rights Council, 31st Session, OHCHR. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/291/11/PDF/G1529111.pd...

United Nations, General Assembly (August 2016) “Elimination of all forms of religious intolerance”, 71st Session, OHCHR. Available at: http://www.ohchr.org/Documents/Issues/Religion/A-71-269_en.pdf

Universal Declaration of Human Rights 1948. Available at: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

VENTURA Marco (2005) “The permissible scope of legal limitations on the freedom of religion or belief in Italy”, 19(2) Emory International Law Review, 913. Available at: http://heinonline.org/HOL/LandingPage?handle=hein.journals/emint19&div=3...

ZUCCA Lorenzo (2011) “A Comment on Lautsi”, EJIL: Talk! Blog of the European Journal of International Law. Available at: http://www.ejiltalk.org/a-comment-on-lautsi/#more-3161

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