Constitution and Religion

1. Constitution and Religion Prepared by Dr.LunaFarhat

2. Where do we find ‘the ‘ legal definition of religion? does the constitution define religion? • there is no such single definition in all worlds constitutions. • Instead we find : clauses refereeing to the religions recognized by the State, • Or refer to the established state religion.(church state in some European countries )

3. What are the problems could arise if we did not have an explicit definition of religion? • What are the legal advantages of having a definition of religion ? • What are the disadvantages if we do have a legal definition of religion?

4. The meaning of religion in a constitutional context • The constitution is the fundamental law of the State, which contains the legal rules constituting State institutions and delineating their authority. • The constitution also defines the State’s cultural and social-religious identity.

5. Thus the constitution outlines if a state has an Established religion i.e. an official religion or does not endorse any official religion mainly because it adopts secular system that based on church - state separation . • In this regard states are divided in two main categories: 1-the secular states • 2- states with official religion

6. The constitution contains a set of fundamental individual rights that the State is obliged to respect. One of these rights known as religious rights. • religious rights form an important part of the Constitutional fabric of all States jurisdictions.

7. Individuals Religious rights • Most world constitutions have inserted an article that guarantees the freedom of belief and insures the freedom of religious manifestation subject only to what is prescribed by law and public order. • Therefore, the national legislator has to determine some major issues related to the practicing of religion. • By tracing several constitutions, none of them defined the term religion or determined what is to be religion to fall into the category of guaranteed religious practices. • Eventually one can ask the following question: Is it permissible to practice any religion or belief in public?

8. In principle, the constitutional law asserts that the freedom to belief is absolute as long as it is unexpressed explicitly. Persons are free to think and believe in anything they wish for. • The restrictions only imposed when the belief is being expressed in public. The practice of religion is restricted according to what is set by the law. in that case individuals must submit to the laws regulating the religious practices. • .

9. In this respect, Nations differ, especially in countries that adopt an official religion, or a state church as the official religion. On the other hand, nations that declare to be a secular state, yet still favor what is called de facto religions or traditional religions over others. • what might be permissible in one country might be forbidden in another.

10. 1-The Secular States Two examples can be brought here, the first is the Russian Federation and the second is France. • Both countries clearly declare the adoption of secularism, i.e. the separation of state and religion. • Article 14  (1) The Russian Federation shall be a secular state. No religion may be instituted as state-sponsored or mandatory religion.  (2) Religious associations shall be separated from the state, and shall be equal before the law.

11. The law also recognizes the historical role played by the Orthodox Church and respects Christianity, Islam, Buddhism and Judaism and other religions that cannot be separated from the historical heritage of the Russian people. • France : Article 2 • (1) France is an indivisible, secular, democratic, and social Republic. It ensures the equality of all citizens before the law, without distinction as to origin, race, or religion. It respects all beliefs. • Article 77   (3) All citizens shall be equal before the law, regardless of their origin, race or religion. They shall have the same duties.

12. The same applies to France traditional religions. Among these are Christianity, Judaism and Islam and obtain respect and acceptance from community to some extent. • On the other hand, new legislations where set out to limit religious expressions -as to the law on the prohibition of religious symbols in public schools and the anti-sect law, allowing more restrictions on the work of new religious movements. (e.g., scientology church)

13. Russia federation law (1997) on religious associations: • “ a centralized religious organization the structures of which have been active on the territory of the Russian federation on a legal basis for no fewer than 50 years as the moment when the said religious organization files its application for state registration to the registering organ has the right to use in its name the words Russia, Russian , and derivatives of these.”

14. Angola • 1- the republic of Angola shall be a secular, and there shall be separation between the state and churches. • 2- religions shall be respected and the state shall protect churches and places and objects of worship, provided they abide by the laws of the state.” • “Freedom of conscience and belief shall be inviolable the Angolan state shall recognize freedom of worship and guarantee its exercise, provided it does not conflict with public order and the national interest (art.45)

15. The German federation constitution • "There shall be no state church" art 140 • “1- Freedom of faith, of conscience, and freedom of creed, religious or ideological , shall be inviolable . • 2- The undisturbed practice of religion is guaranteed. • 3- No one may be compelled against his conscience to render war service involving the use of arms. Details shall be regulated by Federal Law.(art. 4)” Conscientious Objection”

16. 2- States and the Official Religion: • In this category, several nations declare a state religion like in most Muslim countries where Islam is the official religion. Having the same official religion does not automatically mean that only Islam is the permissible practiced religion on one hand, and does not mean that these States have the same attitude towards the question of religious freedom, on the other hand.

17. In Egypt for instance, although the constitution is silent about what the recognized religions are, judicial courts decisions stated that the permissible practiced religions bedsides Islam are Christianity and Judaism. • Article 2 of the newly adopted constitution (before the recent developments) states that “[t]he principles of Islamic Sharia are the principal source of legislation.” This language also was in the previous constitutions, but in the new constitution, the issue is further discussed in Article 219, which provides that: “The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.” This raises the question of the some kind of restrictions on adopting any other principles recognised by other Muslim doctrines in and favours the interpretations of one school of Sunni Islam over all others. • Article 3 states that “[t]he canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.” By limiting personal status law to Christian and Jewish principles, this provision fails to address the status of members of other religious groups and of people who follow no religion

18. Article 43 provides that the freedom of believe is assured and the freedom of worship is guaranteed by the state as well as establishing the worship places for the heavenly religions according to the law. In addition, article 44 provides the prohibition of insulting the messengers and prophets

19. In Islamic Republic in Iran, the constitution recognizes Islam and faith of JafariAthnaAshrai as the official religion of the country; and at the same time, followers of another Islamic school of thoughts namely: Hanafi, Shafeii, Maleki and Hanbali, are to be respected and their religious rights are guaranteed. • The constitution also numbered the non–Islamic faith communities which are also recognized in the country; they are: Zoroastrian, Jewish, and Armenia Christians. The Iranian constitution made it clear what is permissible and what is not. And despite the fact that both countries embrace Islam as the official religion, the Egyptian law does not recognize the Zoroastrian, while Iran does. Although both countries prohibit the Bahai community, this community is recognized in another state religion nations.

20. Cambodia constitution • Buddhism is the state religion. art43)) • 1- Khmer citizens of either sex enjoy the freedom of belief. 2- Freedom of religious belief and worship is guaranteed by the state on condition that such freedom does not affect other religious beliefs or violate public order and security.

21. Thailand constitution • “a person shall enjoy full liberty to profess a religion, a religious sect or creed, and observe religious precepts or exercise a form of worship in accordance with his or her belief; provided that it is not contrary to his or her civic duties, public order or good morals.” art173 • (9art) • “The King is a Buddhist and upholder of religions

22. Denmark constitution • The evangelical Lutheran church shall be the established church of Denmark, and, as such, it shall be supported by the State.”art4 • “the citizens shall be entitled to form congregations for the worship of God in a manner consistent with their convictions, provided that nothing at variance with the good morals or public order shall be taught or done.”art67

23. Greece • The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ.art3 • Article 13.   • (1) The freedom of religious conscience is inviolable…..  (2) Every known religion is free and the forms of worship thereof shall be practiced without any hindrance by the State and under protection of the law. The exercise of worship shall not contravene public order or offend morals. Proselytizing is prohibited

24. In England the KING according to the Coronation Oath Act 1688 “… maintain the laws of God the true profession of the Gospel and the protestant reformed religion established by law.”

25. Bolivia : • The state recognizes and supports the Roman Catholic, Apostolic, religion. It guarantees the public exercise of all other religions.”art3 • Costarica • “The Roman Catholic, Apostolic religion is that of the state, which contributes to its support, without preventing the free exercise in the Republic of other religions that are not opposed to universal morals or good customs.” art75

26. Kuwait • Article 2 [State Religion] • The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.Article 9 [Family] The family is the corner-stone of Society. It is founded on religion, morality, and patriotism. Law shall preserve the integrity of the family, strengthen its ties, and protect under its support motherhood and childhood. • Article 29 [Equality, Human Dignity, Personal Liberty] (1) All people are equal in human dignity and in public rights and duties before the law, without distinction to race, origin, language, or religion. • Article 35 [Freedom of Religion and Belief] Freedom of belief is absolute. The State protects the freedom of practicing religion in accordance with established customs, provided that it does not conflict with public policy or morals.

27. Courts initiative to define religion : • The USA courts as an example : • Case Davis v. Beason1890 • “The term religion has reference to one’s views of his relations to his creator, and the obligations they impose of reverence for his being and character, and of obedience to his will”.

28. Other cases in 1931 courts defined religion as • The essence of religion is belief in a relation to God involving duties superior to those arising from human relation • United States v. Kauten1943 broader meaning was given to religion when the court said • “Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men and to his universe..

29. Guy W. Ballarad case 1944 • The court upheld the right of the authorities to examine the authenticity of the defendant believes . • the descendent opinion of one of the judges “Embraces the right to maintain theories of life and of death and the hereafter which are heresies to followers of the orthodox faiths.. Heresy trials are foreign to our constitution. Men may believe what they cannot prove. They may not put to the proof of their religions doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.”

30. While in Torcasov. Watkins1961 the supreme court decided that the state of Maryland ‘s constitution contained unconstitutional clause that reads as • “no religious test shall be required as a qualification for any state office other than a declaration of belief in the existence of God.” The supreme US court went further to say that “Among religions in this country which do not teach what generally be considered a belief in the existence of God are Buddhism, Taoism, ethical culture, and secular humanism and others. “

31. While the German constitutional court held that :“The state must not evaluate the belief or unbelief of its citizens, does not claim any competence for decisions in religious matters, or for any secular definitions of any confession of the faith of any religious community”.

32. Religious symbols • Mandla v Dowell Lee 1983 :concerning turban-wearing Sikh :the council of lords decided that : • “ it was unlawful indirect discrimination for a headmaster of an independent school to insist on a uniform requirement of short hair and caps for boys , thus excluding the claimant who was a turban-wearing Sikh with unshorn hair from attending from school”

33. Muslim scarf and dress • R (Begum ) v Governors of Denbigh High School 2004. • " Whether the members of any further religious groups (other than very strict Muslims) might wish to be free to manifest their religion or beliefs by wearing clothing not currently permitted by the school’s uniform policy , and the effect that a larger variety of different clothes being worn by students for religious reasons would have on the school’s policy of inclusiveness. Whether it is appropriate to override the beliefs of very strict Muslims given that liberal Muslims have been permitted the dress code of their choice and the school’s uniform policy is not entirely secular. • Whether it is appropriate to take into account any, and if so which, of the concerns expressed by the school’s three witnesses as good reasons for depriving a student like the claimant of her right to manifest her beliefs by the clothing she wears at school, and the weight which should be accorded to each of these concerns . Whether there is any way in which the school can do more to reconcile its which to retain something resembling its current uniform policy with the beliefs of those like the claimant who consider that it exposes more of their bodies than they are permitted by their beliefs to show .”

34. Religious symbols and religious dress in Germany • The constitutional court held in 1971 that : • “ The mere presence of a crucifix in a courtroom does not demand any identification with the ideas and institutions symbolically embodied therein or compel any specific behavior therein. • but in another case law the same court in 1995 held that having crosses in the class rooms of public schools would violate art 4 of the constitution

35. The court at Baden-Wuerttemberg one of the Germans federal state its court held that public school teachers must respect the neutrally principles, therefore are not allowed to express their religious beliefs in front of their students .therefore the teacher has no right to wear her head scarf during the teaching hours. • But the constitutional court held that Baden-Wuerttemberg court has no right in depriving ones religious right as long as the law of the state does not state otherwise.

36. In 2004 Baden-Wuerttemberg state issued a law that guarantees the neutrality principles in the public schools and thus prohibiting wearing any religious symbols but the law was only applicable on muslim teachers excluding nuns who also cover their heads. As a result the constitutional court held that the law must be applied on all persons .eventually in 2006 the Baden-Wuerttemberg court rejected the head scarf prohibition law on the grounds that it leads to religious discrimination among individuals .

37. The legal definition of religon: the advantages and disadvantages! • It is undeniable that the task of defining religion for legal purposes is extremely difficult. Numerous court systems have found creating such a definition problematic, • there may be notable advantages in not defining religion. In the legislative process, which it will be recalled may explicitly accommodate political debate, silence on definition of religious and spiritual matters may lead to what appears to be a consensus a very clear ideas about what religion was..

38. a number of commentators have argued against a legal definition of religion, at least at an international level, has three main advantages. Firstly, it avoids the technically very difficult task of drafting a definition which is flexible enough to satisfy a broad cross-section of world religions while precise enough for practical application to specific cases. • Secondly, the absence of a definition means that those bound by a guarantee of religious rights cannot give a restrictive definition to religion, a particular danger for minority religions whose characteristics may not match any general definition. • Thirdly, the variety of conscientious, religious, and spiritual beliefs would present problems to a definition based on traditional, Western, views of religion: [t]he twentieth century has witnessed the establishment of a plethora of new beliefs. These range from new religious groups (often called cults) to humanistic philosophies that stress Man’s innate potential and believe that human spirit is eternal. The recent emergence of the New Age movement with its subtle blend of ancient mysticism and religious faith further blurs the distinction between religion and philosophy ... Humanist and secular philosophies are as often sacred to their adherents as religious belief in the traditional.

39. a legal definition of religion has a number of important implications . • Firstly, the definition must be clear enough to allow the resolution of disputes when they occur, and preferably to allow citizens to plan their conduct in the knowledge of whether or not their activities will be classed as religious ones.

40. Secondly, if we focus on legal definitions as tools by which actors achieve their aims, there is a danger either that a particular definition might be abused by those seeking a goal, or that the public might perceive that such abuse is occurring • This is particularly the case where there are fears that insincere claims to religious status are being made in order to secure a secular benefit that would be desirable independent of any religious context

41. Consideration of religious interests may also lead to individuals or groups being given a role in public policy, and thus concerns that religious claims are being used insincerely to gain such a voice.