A Contextual Approach to Religious Freedom

In 1568 the Diet of Torda convened by Prince John Sigismund accepted the arguments of the founder of the Transylvanian Unitarian Church, Francis Dávid, and confirmed "that in every place the preachers shall preach and explain the gospel each according to his understanding of it, and if the congregation like it, well; if not, no one shall compel them, but they shall keep the preachers whose doctrine they approve." For three years Catholics, Calvinists, Lutherans, and Unitarians in what is now Romania enjoyed religious freedom under the protection of the state. Then John Sigismund died and was succeeded to the throne by a devout Catholic, Stephen Báthori, who turned the power of the state against the other religious communities.1

This little known episode in the history of Central Europe is a parable for our times. The flowering of religious freedom in the last two hundred years is now threatened by the use of political power to enforce religious orthodoxy. This is true not only in various Islamic countries, but also wherever the state is seen as a means of defending the true faith. Communist oppression of religion, which has dominated the development of the human right of religious freedom in the latter half of the 20th century, now only lingers in China, Cuba and North Korea. Elsewhere religious intolerance has once again become the greatest threat to religious freedom.

But religious freedom will not be secured simply by mounting a strong defense on its behalf, because our concept of religious freedom is dominated by ideas about religion associated with the individualism and relativism of Western liberal thought. Our conception of religious freedom is in this sense flawed, and thus our first responsibility is to correct our thinking. We must seek religious freedom not only as a right, to be exercised by individuals and groups of individuals, but also as a community responsibility. Our defense of religious freedom will only succeed if, in asserting the right to religious freedom, we seek to secure the freedom of persons within communities to pursue the truth together.

An Individualistic Concept

Since the founding of the United Nations, religious freedom has been asserted as a human right under international law through the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, and the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief. In addition, religious leaders from different traditions have affirmed their support for religious freedom as a fundamental human right, as I have documented in my book Faith in Human Rights: Support in Religious Traditions for a Global Struggle (1991).

The Diet of Torda in 1568 grounded religious freedom on what Thomas Jefferson two centuries later might well have described as a "self-evident" truth: that "faith is a gift of God." In the middle of the 20th century, it also seemed obvious that protecting religious freedom meant simply protecting the right of individuals to choose their own religious groups and the right of those groups to worship and educate their members without government interference.

The legal standards developed earlier in this century to protect religious freedom assumed that religious communities were associations of individuals (congregations of believers). The right of religious freedom was fundamentally the right of individual conscience: to believe or not to believe, to join one religious community or another, to hire one preacher or another, to educate one's children in the religious community of one's own choosing, and to propagate one's beliefs.

Such a view of religious freedom was based on the notion that "other religions" were like Christian churches, differing only in beliefs and practices. It is now obvious, however, that this is not the case.2 Indigenous religious traditions, such as Native Americans and Shinto practicioners in Japan, relate the life of a people, tribe, or family to the land and all life on that land. Hindus practice their religion within kinship communities as part of a caste hierarchy, which is identified with their culture. Orthodox Christian traditions identify with their people, in Russia, Greece, and Romania and with their homelands. Few persons are converted into these traditions, because these religious traditions are closely identified with the life of a people and its culture. These primal and native or national religious communities do not have the same character as the religious groups that seek converts from them.

From within these older religious traditions, religious freedom today appears to be what we might crudely describe as "marketplace religion." Religion becomes something that one chooses from a variety of options, even as one looks for the best deal in the marketplace. Those who understand religion more as a dimension of culture or community identity resist a marketplace view of religious freedom. They do not understand religion as individual choice, nor do they think that religious freedom should encourage individuals to leave their native and historic religious communities in order to be saved within the gathered congregation of a new faith.

Unless there are some rules and regulations, religious freedom may hardly be described as an "even playing field," to use the sports analogy. Aggressive religious proselytizing among largely illiterate people involves gifts and technological "magic," as well as criticism of the traditions and "superstitions" of the people. Those who would lift up their own faith, often do so by putting down the faith of others. Those with the greatest resources and power have an unfair advantage.

This is a problem in Eastern and Central Europe, where foreign religious movements have been quick to move into the new religious marketplace. Resistance to these groups, in defense of the national or "native" religious traditions, is growing. Hungary has considered legislation making it more difficult for a new religious movement to register as a religion. Russia has also debated a law limiting the activities of foreign missionaries and new religious groups.3

Islamic movements in many countries seeking to enforce the Shari'a as civil law provide another instance with strong similarities to Christian history in the 16th century. We are wrong, however, to dismiss Islamic resistance to religious freedom as simply an archaic defense of orthodoxy. It is that, of course; but it is also resistance to the religious marketplace — and the economic marketplace associated with it — which makes religion simply a matter of individual preference, as a consumer item. Muslims may well say, as did the Diet of Torda, that faith is a gift from God. But secular society, which Muslims see as contrary to the spirit of religion, is the work of men and women. To the extent that it deviates from the will of God, Muslims assert that it must be resisted.

A Contextual Approach

How then are we to give our support today to religious freedom? How can we affirm the international human rights standards and yet acknowledge that they reflect a bias in favor of religious groups like those in the West? How can we conceive of religious freedom as both a right and a responsibility? What sort of legal strategy might we support? And what contribution might religious organizations, in particular, make in this important struggle?

We should not simply assert that religious freedom is a right under international law and must be obeyed. Those who embrace this strategy today are quick to push for a convention that is enforceable or for a model law that will help countries in transition adopt a Western, secular form of government.4 But these approaches ignore the narrow understanding of religion, which is assumed by existing international law (as well as much of domestic law in the West). Furthermore, although an enforcement strategy seems both principled and powerful, it will generate resistance to international human rights standards and thus in practical terms will make realizing religious freedom more difficult.

Instead, we should seek to realize "the spirit" rather than "the letter" of the law. That is, we should take a contextual approach to enforcing universal human rights standards. In doing this we need to be clear about the principles reflected in the "spirit of the law," which I suggest include the following: 1) people have a right to practice their faith in peace (in the United States this is called "the free exercise of religion," 2) government has a duty in regulating religious organizations by law not to discriminate against any or all of them, and 3) representative government may assist religious organizations in providing programs for the public welfare if participation is voluntary.

The last principle needs elaboration. Representative government refers to government that is elected under lawful procedures and that fairly reflects the will of at least the voting majority of the society. Representative government may use funds collected in taxes to support cultural, educational and humanitarian programs, which serve only some of the people directly, so long as such programs: 1) do not interfere with the right of religious freedom, 2) are administered according to lawful and non-discriminatory procedures, and 3) do not require people to participate against their will.

Such a contextual approach means rejecting the presupposition that religious freedom requires a strict "separation of church and state," to use the American way of describing what today is often called secular government.5 Rather we must look within each historical, cultural, ethnic, national, and religious context for the kind of cooperation or accommodation by the state under a rule of law that will best protect religious freedom.

An example concerning education may make this clearer. In 1948 the Romanian government expropriated the confessional schools of the minority religious communities, some of which had existed for centuries. The Romanian government has yet to return these schools to the churches and has even integrated Romanian students into these Hungarian schools. The government has justified its policy as a way of overcoming ethnic conflict in the country. But the Lutheran, Calvinist, and Unitarian Hungarian communities in Romania argue that they need these confessional schools to maintain their religious life. Thus, they assert a religious right to do so. Moreover, they claim that the government should pay the costs of operating these schools, as the schools provide a public service and the religious communities are unable to support them (in part because the state has not returned their expropriated property).

I believe the position of the minority religious communities in Romania is consistent with the three principles stated above. Certainly support from the state for confessional schools furthers (rather than restricts) the free exercise of religious communities and is non-discriminatory, if provided to all confessional schools that satisfy educational standards. Moreover, such support is a means of promoting the public welfare by providing for education in a manner consistent with the cultural heritage of the people, as the confessional schools were fully accepted for generations prior to the communist government of this century. Finally, assistance to confessional schools does not impose any religious conviction on anyone, so long as there are sufficient educational opportunities from which students may choose including secular schools for those who desire them.

Supporting the right of the minority religious communities in Romania to administer confessional schools at state expense does not mean, as a general principle, supporting state assistance for confessional schools in every society. For instance, I would not argue that Roman Catholic schools in the United States ought to be supported by public funds, because obviously the free exercise of religion in the United States does not require this support and such a position does not represent the will of the majority of the citizens of the United States. In Northern Ireland, however, I would argue in favor of state support for integrated educational programs for Protestant and Catholic children, as a means of promoting community reconciliation in a deeply divided society. I am not opposed to the principle of integration in education, as a means of overcoming social divisions, but in Romania sees that this principle has been used to conceal a strategy of cultural (and thus to some extent religious) assimilation and oppression.6

These three contexts are very different from each other, and different still from other countries. In Hungary, where there also was expropriation of confessional schools by a communist government, the present government is returning schools to the churches and supporting them, at least for an interim period.7 In Britain, the government supports Anglican and Roman Catholic schools, but has been reluctant to respond positively to requests by Muslim schools for support. Such a practice is discriminatory and should be resisted. But the government's policy hardly inhibits the free exercise of religion in Britain, in the way that the lack of support in Romania for minority operated schools materially affects the ability of the religious communities to survive. Moreover, the fact that the Church of England is established by law in Britain, with the reigning queen or king serving as head of the Church, is both generally accepted by the British subjects and has not, at least in recent years, led to religious discrimination by the government on behalf of the Church of England.

Two other situations provide different illustrations of a contextual approach to religious freedom. Islamic government, as practiced in Pakistan for instance, provides an example of religious oppression, as in that country the government enforces Islamic law on all its citizens including Christians, Hindus and other non-Muslims. In Pakistan established religion means discrimination favoring Muslims, the imposition of Islamic blasphemy codes involuntarily on those who are not Muslims, and rules of evidence in court that give less credibility to the testimony of non-Muslims than to evidence presented by Muslims. In such circumstances the "spirit of the law" of religious freedom is violated, as well as its letter. Adherence to the three principles I have set forth would require significant changes.

We should not conclude, however, that all forms of Islamic government inevitably fail to embody these principles. We need only recall that in Moorish Spain, before its fall in 1491, Jews were protected from Christian persecution by a government that felt obliged by Islamic teaching to protect all those who worshipped the God of the prophets. To be sure, most Muslims are opposed to secular government, or to what in the West has been known as "separation of church and state," because Muslims believe that government is a trust from God. But there are Muslims who support religious freedom and non-discriminating government, and certainly many Muslims would want government to support voluntary public welfare programs sponsored by religious organizations.8

Tibet is a very different case. There a Chinese government has oppressed an almost entirely Buddhist population. Clearly, there is a denial of religious freedom in Tibet. But if the Chinese were to "free Tibet," most likely the people would choose to have the Dalai Lama return as both a religious and political leader (or more accurately, to be simply their leader, as in Tibetan culture religion and politics were never distinguished). Thus, Tibetan Buddhism would become the established religion of the country. This need not, however, mean the denial of religious freedom, if religious freedom is understood by means of the three principles I have suggested. Other religious communities could be protected, as in Britain. Establishment of religion need not mean that government policies will be discriminatory. Government support for cultural, educational and humanitarian services provided by religious organizations might well reflect the majority will of the people but could be voluntary rather than mandatory.9

Thus, a contextual approach to religious freedom requires that each situation must be analyzed in its own right. No one model of religious freedom can be expected to fit all cases. In the United States religious freedom is protected by the first amendment of the constitution that provides for the free exercise of religion and prohibits the state from establishing any religion. More familiar to most Americans than these two principles of the first amendment is the notion of "separation of church and state." The principles I am suggesting do not contradict the American idea of religious freedom, but they do see it as a particular context rather than as the defining notion of religious freedom.10

The first two contextual principles of free exercise and non-discrimination can easily be identified with the clauses of the first amendment. But in the United States there will be concern about the third principle: that government may promote the public welfare by supporting cultural, humanitarian and educational programs sponsored by religious organizations. This need not mean financial support, but it does mean that the state is not to be antagonistic to the free exercise of religion by rigidly being "neutral." Therefore, it requires that the state foster "religious activity" (cultural, humanitarian and educational) that is voluntary, non-discriminatory and promotes the public welfare.

Such an approach may be illustrated by my own experience. Years ago I served on a school board in the United States. The question of "religion" in the schools was raised in various ways during my tenure on the board, but perhaps the most interesting issue had to do with whether religious ministers could come onto school premises to counsel with students who were members of their congregations. I helped to draft a policy that allows them to do so, at times that do not interfere with scheduled school activities, so long as they ware invited by the student or students with the consent of their parents and meet only with the students who have invited them.

This is an example of seeking to implement the "spirit" of religious freedom, rather than enforcing a law of strict separation. There were those who argued that religious ministers should not be allowed on the premises of a public school, that "religious business" had no place in an institution supported by the government, that the policy I recommended was "supporting" religion and thus in violation of the first amendment. I believe, however, that acts of government, which permit the free exercise of religious faith and are not discriminatory, may also be supportive of religious life without contradicting the clause of the first amendment, which prohibits the establishment of religion.

In contexts where government has traditionally supported educational, cultural and humanitarian work by religious communities and has seen this support as part of its responsibility, I believe an approach that is different in balance to that in the United States makes sense, so long as it fosters religious freedom. In each instance, what must be assessed is whether or not a government's support for activities administered by religious organizations permits the free exercise of religion and is also non-discriminatory.

I believe a contextual approach to securing religious freedom that is guided by the "spirit of the law" rather than its letter is the best approach for governments and for religious communities.

Our Responsibility

We need, of course, to affirm that religious freedom is our responsibility as well as our right. In particular, it is a responsibility that we must urge upon all religious persons and communities because religious freedom is not only a way of protecting our rights as well as the rights of others. Religious freedom is also a way of acknowledging our limitations (and even failures) as we seek greater truth together.

From a theological point of view, religious freedom is a principle of humility. By affirming the right of others to pursue their own vision of truth, through religious beliefs and practices that may be contrary to our own, we acknowledge that our religious beliefs and practices may not be all they ought to be. To affirm religious freedom is to acknowledge: that we easily miss the mark in our religious devotion and fall short of the ideals we embrace, that we may worship the God of our understanding and desire rather than the God of all, and that we may sin as well as be faithful.

In faith then we see that religious freedom is not an end in itself, but is rather a means by which we may seek to be faithful. It is through the freedom of religious persons in community with one another that faith is tested, and found wanting or worthy. It is through freedom that religious life is reformed and renewed. It is in dialogue with one another, in the free exchange of ideas and meanings, that we come to see more clearly how we have erred and how we might repent.

Religious freedom ought not to be understood as embodying the notion that all religion is equally valid, and thus deserving of equal protection, or the idea that all truth is relative. Nor should religious freedom mean tolerating whatever someone claims to be religious, even if it oppressive. Rather by affirming religious freedom we acknowledge that we can learn from every religious tradition and every person of faith.11 Thus, interfaith dialogue and cooperation may be seen as a way of assuming responsibility for religious freedom. Through interfaith activities we may not only model respect for others but also what faithful inquiry ought to be. For we are not called by God to defend our religious beliefs but, as the biblical prophet Micah reminds us, we are called "to do justice and love mercy and walk humbly" with our God.(6:08)

Religious freedom is our right, to be sure, yet it is also our responsibility. It is not an absolute right but requires a contextual approach, which may be conceived along the lines I have briefly described. We cannot responsibly promote religious freedom by simply urging that international law be enforced or that a strict separation of "church and state" be maintained. To be responsible about this fundamental right, we must urge both our governments and religious organizations to cooperate in creating a climate of dialogue and cooperation within our societies.

Therefore, as we advocate on behalf of oppressed minority communities, we also need to support local initiatives that create the understanding and trust among people of different religious communities that is necessary for human rights to be legally enforceable.12 Religious freedom requires building relationships between faith communities as well as passing and enforcing laws. Only human relationships rooted in faith and trust will be strong enough to resist appeals to narrow ethnic or religious beliefs, which reinforce old reasons for hatred, fear and revenge.

More than four centuries ago an ecumenical meeting in Transylvania brought religious freedom to a divided people. Although in Central Europe the death of John Sigismund meant that protection for religious freedom was overcome by persecution, the hope expressed by the Diet of Torda is manifested today in the standards of international law, in the teachings of the world's religious traditions, and in interfaith activities and organizations. May God give us all the strength to persevere in this struggle.

NOTES

1 Janos Erdö, "Struggles of Transylvanian Unitarians for Human Rights," in Religion and Human Rights in Europe (Oxford: IARF 1995).

2 See Robert Traer, Freedom and Faith (Oxford: IARF, 1995), and "Religious Freedom at the End of the Twentieth Century," Church and Society (September/October 1992):38-50.

3 For a review of church-state issues in countries of the former Soviet Union see Alexei Krindach, "Evolution of the 'Religion-State' Relationships in the Ex-Soviet Republics over 1992-94: From a Unified 'Communist' Entity to National Multiplicity" in Religion and Human Rights in Europe, forthcoming.

4 A Subcommittee of the Committee on Religious Freedom or Belief, which represents many non-governmental organizations at the United Nations in New York, is only the most recent manifestation of support for a convention on religious freedom. A model law is proposed by Dinah Shelton and Alexandre Kiss in "A Draft Model Law on Freedom of Religion, with Commentary" presented at an international conference on "Religious Human Rights in the World Today: Legal and Religious Perspectives" convened by the Law and Religion Program, Emory University, 6-9 October 1994, Atlanta, Georgia.

5 For a fascinating analysis of the spectrum of church-state relations, ranging from strict separation to establishment, see W. Cole Durham, Jr., "A Comparative Framework for Analyzing Religious Liberty" (1993), unpublished. He argues that forms of cooperation and accommodation between the state and religious communities may be compatible with the free exercise of religion.

6 See IARF World, 1992-94, and Donald Szánthó Harrington, "Human Rights in Eastern Europe" and the "Concluding Statement of the IARF European Conference" in Religion and Human Rights in Europe.

7 Helen E. Hartnell, "The Five-Year Span (1989-1994): A Status Report on Law and Religion in Hungary," Religion and Human Rights in Europe.

8 Amnesty International, "Pakistan: Use and Abuse of the Blasphemy Laws" (27 July 1994).

9 See Robert Traer, "Muslims" in Faith in Human Rights: Support in Religious Traditions for a Global Struggle (Georgetown: Georgetown University Press, 1991), and Abdullahi A. An-Na'im, "Islamic Foundations of Religious Human Rights," a paper at the "Religious Human Rights in the World Today" conference.

10 John Witte and M. Christian Green, "The American Constitutional Experiment in Religious Rights: The Perennial Search for Principles," a paper at the "Religious Human Rights in the World Today" conference.

11 Robert Traer, "Religious Freedom" in A Sourcebook for the Community of Religions, ed. Joel Beversluis (Chicago: The Council for a Parliament of the World's Religions, 1993), 114-15.

12 See Robert Traer, "Faith in Human Rights: Our Challenge in the 1990s," "Supporting Religious Freedom: A Strategy for Intervention," in Religion and Humans Right in Europe.

May 21,1997

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