Religious Freedom: A Community Right

Advocates of religious freedom have been primarily concerned with the individual right of conscience. Article 18 of the Universal Declaration of Human Rights reads: "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." One may exercise religious freedom in the company of others, but the right remains essentially an individual right. This same emphasis occurs also in the International Covenant on Civil and Political Rights and the 1981 Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.

From this perspective community is understood as a voluntary association, the company of others which one chooses, not as one's traditional or indigenous community. The emphasis is on our right to separate ourselves from our traditional social group, and then to join a new one, if this is what we desire. Little concern is expressed for the right of a traditional community to maintain its life in an alien and aggressive culture. Yet, this is the crux of the issue today for many millions of peoples. All traditional and indigenous communities experience modern Western culture as an assault on their religious and cultural forms of life. If, as is often the case, they are a minority people within another culture, then they feel threatened as well by pressure to assimilate into the dominant community.

It is not surprising then that today communities are asserting their right to religious freedom. Three examples may help us see this recent development more clearly.

Three Examples

First, in India, Hindus are demanding that the Muslim mosque on the site believed to be the birthplace of the god, Rama, be removed and a temple erected in its place. If this is an issue of religious freedom, it is not a matter of protecting the right of individual Hindus or individual Muslims to worship as they choose, but of conflicting communal claims to a place held sacred by both. In India, Muslim mosques were built on the sites of hundreds of Hindu temples that were destroyed, and so conflict over sacred space is no small issue. (A similar issue exists in Jerusalem, where the Muslim Dome of the Rock stands on the site of the ruins of the Jewish temple of ancient Israel.)  A resolution of such issues must take into account the religious claims of each community.

Second, indigenous peoples are claiming that their right to religious freedom means the right to preserve their land, which is sacred for them. Although students of comparative religion will quickly agree that such claims are religious, courts (at least in the United States) have been unwilling to see land as other than property. Thus property rights have been enforced in these instances without consideration for the human right of religious freedom. Indigenous peoples have been unsuccessful in stopping economic development of their lands on the grounds that such development violates the integrity of the land and thus the sacred order and their religious heritage. Here again, the historic understanding of religious freedom in terms of individual choice makes it difficult for communities to assert their religious rights.

A third example comes from Romania, where the population is predominantly Romanian and Eastern Orthodox. Here the minority community of Hungarian origin is struggling to maintain its cultural and religious life. The Hungarian minority churches, which are Roman Catholic, Protestant, and Unitarian, are protesting the recent decision by local governments to put classes of Romanian students into high schools which have for hundreds of years been exclusively Hungarian Catholic, Protestant, or Unitarian. A letter signed by the bishops of the Hungarian Christian Churches of Romania asserts that this is an issue of religious liberty and demands "the respect of all personal and collective rights." One might argue in this instance that even if the government is respecting the individual right to conscience in religious matters, it is interfering with the right of religious communities to maintain their heritage through communal institutions and practices.

Religious Freedom and Other Human Rights

If these are not isolated instances, but are illustrative of the kinds of communal conflicts and assertions of religious freedom that we can expect in the 1990s, then we need to reflect on how religious freedom is to be conceived and protected in our time. It would certainly seem helpful to pursue the recommendation of the "Report on the NGO Consultation of The World Conference on Human Rights (1993)" of 12 June 1991, that the UN Secretary-General organize on seminar on the relationship between religious freedom and the promotion of other human rights in various societies, cultures and religions. Such a discussion might help clarify assertions of the right of religious freedom by communities from different cultures and religious traditions.

To be sure, the individual right of religious freedom is still in jeopardy in all those countries where the state supports a single, religious tradition. Established religious authority, whether Christian or Muslim or Jewish, always curtails the freedom of the individual, for it sees such freedom as a threat to its institutional power. However, such established religious authorities also resist democracy in general, and thus the issue of religious freedom in these circumstances is not a unique problem but part of the general problem of civil and political rights. Enforcement of existing international law that protects civil and political rights would seem the best way to address the threat to individual religious freedom.

It is much less clear, however, that the religious freedom of communities will always be protected by existing international law. Communal issues concerning religious freedom arise not only where religious authority is established but also in societies where there is democracy, at least to some extent, and where individual religious freedom is generally protected. As more governments become democratic, in states where freedom of expression and participation have long been denied, we may expect that individual issues of religious freedom will be less pronounced. Yet, as in Romania where there is a movement toward democratic government, increasing protection of individual rights may not mean that communities will be able to maintain their religious freedom. In fact, communal issues concerning religious freedom may well grow in intensity in societies that are rapidly being integrated into modern culture.

One might well question whether such communal issues should be understood as involving the human right of religious freedom. It would, of course, be far clearer to define the right of religious freedom as an exclusively individual right. Perhaps the right of communities to maintain their religious way of life might be understood as a cultural right, or as part of the right to development, or perhaps as implicit in the right to self-determination, which is expressed in the first article of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. However, to date these rights have been defined more narrowly, to keep them from becoming vague and diffuse. Thus the right of a community to religious freedom is now not clear.

The Nature of Religion

A strong argument in favor of understanding religious freedom as a community right, as well as an individual right, is the nature of religion itself. Although an individual may hold beliefs unrelated to any community, clearly religion is rooted in religious communities. In reality then, there cannot be religious freedom without the freedom of religious communities. Moreover, religious communities are not all voluntary associations, but include traditional and indigenous communities. In our time, the civil and political rights of individuals protected under international law give each individual the right to leave his or her traditional community and to join a community of his or her choice. However, this freedom of choice does not mean that traditional and indigenous communities are without rights and that their rights do not include religious freedom.

Religious freedom, understood only as individual freedom, is a bias of Western culture. We need to expand our understanding of religion to include the traditions of cultures where sacred sites and land are central to the expression of the faith of the people and, correspondingly, we need to broaden protection for the right of religious freedom. Today, the issue is not merely protecting the right of individuals against interference by their dominant culture or government but protecting the right of religious communities to maintain their beliefs and practices and ways of life.

Different Situations

The examples mentioned earlier may be distinguished, and this may be helpful in conceiving the best way to protect religious freedom in different situations. Where there is conflict between two or more communities in the exercise of their religious freedom, as in disputes concerning the use of sacred places, the answer lies not so much in legal instruments as in social and political processes that assist communities in negotiating and conciliating their differences. Even as in a divorce, where the dispute between two parents over care for their child is best resolved through mediation and conciliation rather than adjudication, so in community conflicts intercultural and inter-religious cooperation is essential. Legal standards and procedures are needed to facilitate such interaction but no resolution will be possible without social and political accommodation.

Where there is conflict between an indigenous or traditional community and its dominant society, because the understanding of "religion" is very different, as in the assertions of indigenous communities to their sacred lands, the legal interpretation of religion and religious freedom needs to be more inclusive. The seminar suggested in the NGO Report cited above might be an excellent opportunity to explore this possibility. In addition to legal experts and NGO representatives, it would be essential to include in such a seminar religious leaders who represent indigenous and traditional communities.

Where there is conflict between a minority community and government policy which interferes with the community's ability to maintain its cultural and religious heritage, as in the case of the Hungarian church schools in Romania, then perhaps the freedom of the religious community can today most readily be defended as the aggregate freedom of its individual members. Such freedom may not need additional legal definition. Under paragraph 3 of Article 18 of the Covenant on Civil and Political Rights "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." Thus the state which limits the exercise of religion bears the burden of proof. It must show that its interest, as in the case of integrating Romanian classes into the previously all-Hungarian schools of its minority church communities, is necessary to maintain the health of the society or the fundamental rights of its other members.

The Religious Freedom of Communities

Communal conflict is not new in the world, but understanding it in terms of religious freedom will require both a more profound appreciation of convictions and practices, which today we denote as "religion," and a greater awareness of the relationship between the freedom of individuals and communities. The freedom of the individual may be in opposition to that of the community, but it need not be. After all, for individuals to be free to select the religious community of their choice, such communities need to be able to survive. In a world culture that is hostile to traditional communities and indigenous ways of life, religious freedom means protecting the rights of those communities and their members.

This will require clarifying and strengthening legal standards and perhaps new procedures. However, equally important will be intercultural and inter-religious activities that foster mutual respect and a spirit of reconciliation. In a world of societies with cultural and religious minorities, religious freedom should not be conceived merely as a matter of legal standards and enforcement. Our challenge today is to recognize the religious aspirations of those whose lives are quite different from our own, to protect the right of individuals and communities to these aspirations, and to seek reconciliation through understanding and friendship.

November 6, 1991

bob@rtraer.com © Robert Traer 2016