Rethinking Religious Freedom

The beginning of the right of religious freedom is often identified with provisions of the 1776 constitution of Virginia, which were incorporated into the Bill of Rights of the United States of America adopted in 1791 as the first ten amendments to the constitution. The first amendment of this Bill of Rights contains two provisions concerning religious freedom: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In the American mind these two provisions have been summed up in the phrase "separation of church and state," and this notion is often associated with the idea of a secular society.

It is primarily the courts, however, which have defined religious freedom in the United States, especially the decisions of the Supreme Court in the last fifty years. It is widely recognized that these decisions have not generated a clear legal doctrine, but reflect instead the struggle in American society both to maintain religious freedom and a social climate conducive to religious commitment. The issue today in the United States is neither separation nor establishment, but rather the relationship between the state and the multitude of religious groups that make up "religion" in America.

In international law the right of religious freedom is more clearly defined in principle but less tested in practice. The right of religious freedom was written into the Universal Declaration of Human Rights, which was adopted and proclaimed by the United Nations General Assembly on 10 December 1948. Article 18 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."

This right was included in the Covenant on Civil and Political Rights, which entered into force on 23 March 1976. Article 18 provides that:

"1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief, observance, practice, and teaching.

2. No one shall be subject to conversion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. 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.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions."

Freedom of conscience or religion is an absolute right, whereas manifestations of religion may be limited. But the Human Rights Committee established by the Covenant has made it clear that such limitations must be restricted to the purposes set forth, and that limitations, which have as their purpose the protection of morals, must be based on principles not derived exclusively from a single tradition.1

Articles 2 and 26 of the Covenant require equal treatment of persons before the law and prohibit discrimination based on religion. Under international case law, unequal treatment of similar cases is permissible only if it serves an objective and reasonable purpose and the inequality is proportionate to that purpose.2

Moreover, the Human Rights Committee has required in its General comment No. 22(48) that: "The terms belief and religion are to be broadly construed. Article 18 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. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community."3

The 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, which was proclaimed by United Nations General Assembly resolution 36/55 on 25 November 1981, reffirms the language of the Covenant. It does not specify the right to change one's religion, but it does assert that nothing in the Declaration shall be construed as weakening any right affirmed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The 1981 Declaration describes "intolerance and discrimination based on religion or belief" more precisely to mean "any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis." Furthermore, it asserts that all states are to take measures to "combat intolerance" and "to prevent and eliminate discrimination on the grounds of religion or belief in all fields of civil, economic, political, social and cultural life."

Finally, Article 6 of the Declaration specifies that the right to manifest religion or belief includes the following freedoms:

"a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;

b) To establish and maintain appropriate charitable or humanitarian institutions;

c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;

d) To write, issue and disseminate relevant publications in these areas;

e) To teach a religion or belief in places suitable for these purposes;

f) To solicit and receive voluntary financial and other contributions from individuals and other institutions;

g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;

i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels."

In contrast with the first amendment of the constitution of the United States, there is nothing in international law formally prohibiting the establishment of religion. Instead, the principle of non-discrimination with respect to the free exercise of religion is elaborated to ensure that no one religious tradition is supported by the state to the detriment of any other.

A number of states, such as the United Kingdom and several largely Orthodox or Islamic countries and Israel, have some form of an "established" religious tradition, and today there are movements to "establish" national religious traditions in societies that have been secular. For example, there are social and political movements to establish the Hindu tradition in India, the Orthodox tradition in Russia, and the Christian tradition in the United States.

Such movements to support a religious tradition by law remind us that this was the desire of many of the colonists who first came to North America. Moreover, the modern tendency to refer to Native American and other indigenous traditions as "religious" rather than as "cultural" traditions should also suggest to us that the identification of religion with the social and political life of a people is very common and ancient. Finally, we see in both national and indigenous "religious" movements, as well as in the continuing status of the Vatican as both a religious organization and a state, that there are substantial alternatives to the "denominational" form of religion, which developed in North America and was spread around the world by Protestant missionaries.

This might be a time, therefore, to rethink what we mean by religious freedom. The international legal developments of the last fifty years have attempted to expand the free exercise of religion in order to restrict severely, if not altogether prohibit, the establishment of religion by a state. The issues as defined by Western (and particularly the American) experience have not always adequately reflected the relationship between religion, culture and the state in other parts of the world. Thus, resistance to religious freedom in various places might well be understood not simply as a denial of religious freedom, which it may well be, but also as an assertion of cultural independence.

Under present international law protection of religious freedom is to be given precedence over claims to cultural rights. Yet, a more precise analysis of religious freedom may allow us to mediate these claims, at least in some instances. I suggest that the freedom to manifest one's religion includes three freedoms, and that the limitations imposed (or the support afforded) by a state may be found legitimate or illegitimate by different standards with respect to these three freedoms. To illustrate what such an approach might mean in practice, I will utilize it to analyze issues presently being raised in the United States and in Russia.

Religious Manifestation

It is clear under international law that the right of conscience is to receive absolute protection. The state cannot limit in any way the right of a person or a community of persons to hold the convictions they feel compelled by faith to hold. Nor has the state any right to seek to force any belief or religion upon a person. In this sense religious freedom is an absolute right.

The manifestation of religious freedom, however, may be limited under international law (and under the statutes and case law of the United States, for instance, as well as many other nations). Here is where the troublesome issues arise and, therefore, some distinctions may be helpful. In 1948 the Amsterdam Assembly of the World Council of Churches suggested that religious manifestation might be understood as involving "liberty of religious expression," "liberty of religious association," and "corporate religious freedom."

Furthermore, the WCC recognized that religious expression "is subject to such limitations, prescribed by law as are necessary to protect order and welfare, morals and the rights and freedoms of others," religious association "is subject to the same limits imposed on all associations by non-discriminatory laws, and corporate religious freedom "is limited by the provisions of non-discriminatory laws passed in the interest of public order and well-being." Thus, the limiting or supporting role of the state might be understood differently with respect to "religious expression," "religious association," and religious corporate activities (which I will call "religious business").

Following this line of thinking I suggest, first, that a state has the highest burden of proof in imposing any limitations on religious expression, as this is the closest to freedom of conscience. Using language from court decisions in the American legal tradition, a state should not limit religious expression without a "compelling governmental interest" that is "the least restrictive means" of furthering this interest.

Second, I suggest that the limitations imposed by the state on religious association need only meet a reasonable burden of proof, so long as they are non-discriminatory with respect to associations that are organized for voluntary, non-profit activities. Requirements for attaining legal status in a society should not be unreasonably burdensome, but rather should be as straightforward as forming a non-religious charitable or cultural association.

Third, I suggest that the limitations imposed by the state on the religious business of a religious association need be no more reasonable than those imposed on other legal entities engaged in similar business activities, so long as such limitations are non-discriminatory. Such limitations may concern tax laws, filing reports with government offices, operating according to other regulations, and other concerns of doing "business" in contemporary society.

Distinguishing these three aspects of "religious manifestation" may also be helpful in assessing whether or not state support for religion is discriminatory. First, support by the state for religious expression of a particular religious organization or tradition would be permissible only if there was a compelling state interest that made it "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." As it would be difficult to meet such a burden of proof, this sort of "establishment" would generally be understood as prohibited.

Support by the state, however, for religious expression, which is less directly tied to a particular religious organization or tradition, but which is embedded in the holidays and history of the society, might merely be required to be both reasonable and non-discriminatory. This would be a way of acknowledging that religion and culture are not mutually exclusive categories. Some religious symbols not only represent specific religious traditions but, in certain contexts, may be used more broadly to represent the culture of the country.

Second, the state would have no right to establish its own religious association, but it might enter into contracts with religious associations in order to promote the public welfare, so long as it did so in a non-discriminatory manner. Such relationships might include promoting humanitarian and social service projects, as well as certain kinds of educational programs. This practice is in fact very common in the countries of Europe and in many other parts of the world. Even in the United States, there are examples of government grants to religious organizations for these purposes.

Third, the state would also have no right to engage in religious corporate activities, or what I am calling "religious business," but it might give support to religion in a non-discriminatory manner by exempting certain religious activities from taxation or by other regulations imposed on for-profit organizations. The state need not provide tax-exempt status for religious organizations, but if it did provide this status the state would be held to a standard of non-discrimination with respect to all religious organizations.

To see whether such an analysis is useful, these distinctions need to be applied to a couple of controversial cases. I have chosen Russia and the United States as examples, because both situations are presently undergoing considerable change and reflect very different historical and cultural contexts. If this approach is helpful in these instances, it ought to be worth considering in other circumstances.

The United States of America

Despite the popular slogan of "separation of church and state" in the United States, the state has never been entirely "separate" from religion. The relationship defined by the courts, however, is inconsistent and without clear defining principles. "Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers, but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to. It is unconstitutional for a state to require employers to accommodate their employees' work schedules to their Sabbath observances, but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and Sabbath leads to discharge. It is constitutional for the government to give money to religious-affiliated organizations to teach adolescents about proper sexual behavior, but not to teach them science or history. It is constitutional for the government to provide religious school pupils with books, but not with maps; with bus rides to religious schools, but not from school to a museum on a field trip; with cash to pay for state-mandated tests, but not to pay for safety-related maintenance. It is a mess."4

To see if the above analysis is helpful in clarifying issues of religious freedom, we might apply it to the contentious question of religion in the public schools. Here the conflict is largely about "religious expression." Today, students have the right to pray, either individually or in groups, or to talk about their religious views with one another, so long as such prayer or conversation is not disruptive. School officials, however, do not have the right to mandate or organize prayer. Teachers in school may teach "about" religion, but they are not to teach the beliefs and practices of a religion. Students may, however, express their religious beliefs in their school lessons. Such expressions are to be judged by ordinary academic standards of substance, relevance, appearance and grammar.

Students have a right to distribute religious literature to other students, according to reasonable restrictions imposed on the distribution of all non-school literature concerning time, manner and place of distribution. Outsiders, however, may not be given access to the school to distribute religious or anti-religious literature. Students have the right to try to persuade other students about religious topics, but are not permitted to engage in religious harassment aimed at a student or a small group of students. Religious messages on T-shirts and the like may not be singled out for suppression. Moreover, students may wear religious garb, and they may not be required to wear gym clothes that they regard, on religious grounds, as immodest.

Thus, the law at present allows considerable freedom within public schools in the United States for religious expression, and requires a high burden of proof by a school (concerning the least restrictive means of furthering a compelling governmental interest) in imposing limitations on that freedom. This makes sense.

Religious association, however, is more a matter of reasonable limitations that are non-discriminatory. Student religious clubs in secondary schools must be allowed to meet and have equal access to campus media to inform students of their meetings, if a school receives federal funding and permits any student non-curricular club to meet during non-instructional time. Schools can ban all non-curriculum clubs, but not some clubs or all religious clubs.

Released time provisions are similar. Requests from students to be dismissed to attend religious instruction by religious associations off the premises of the school are to be treated in a non-discriminatory manner. Either they are allowed under reasonable procedures and circumstances, or they are not allowed. In no case is religious instruction to be allowed on the premises of a school during the school day by outsiders (representing religious organizations).

In addition, the tax-exempt status that is provided to religious organizations and other non-profit organizations in the United States reflects a kind of support for religion, which is non-discriminatory. But income earned by religious organizations though "business" activities, which are not in themselves religious or serving a religious purpose, will be taxed like income of a for-profit organization.

If the law with respect to religion in the schools seems reasonably coherent, the decision of the Supreme Court in the case of Employment Division v. Smith deserves criticism. In this case the court ruled that the state of Oregon could deny unemployment benefits to two American Indians, who lost their jobs because they participated in a religious ceremony involving peyote, a drug which is prohibited by Oregon law. The use of peyote in a traditional religious ritual was not seen as "religious expression," and thus the government was not required to show a compelling state interest to discriminate against those using it.

The state should not need to show a compelling interest to limit the sale or exchange of such a drug, as this would fall under "religious business." In this respect, the court's decision that the state need only act reasonably is correct. But with respect to religious expression, it ought to meet a higher burden of proof, as religious expression is closer to the absolute right of conscience and religious liberty.

Another recent case that illustrates the need to rethink the meaning of religious freedom in American law is Lynch v. Donnelly. The Supreme Court found in this case that the city of Pawtucket, Rhode Island had not unconstitutionally established religion when it included a créche as a central part of its civil Christmas display. Lynch overturned the Lemon test, which required that to be constitutional a statute concerning religion must have a secular legislative purpose, its principal effect must neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion."5

Winnifred Fallers Sullivan argues persuasively that Lynch uses illogical reasoning to achieve an understandable and even desirable result.6 The result reflects the notion that the law should not simply prohibit state support for religious expression, which concerns common cultural symbols, but should only prohibit state support, which in effect promotes one religion (or some religious organizations) over others. The model for religious freedom presented in this paper would come to the same conclusion as Lynch, but on the basis of an intelligible distinction between religious expression by the state, which is permissible, and impermissible religious expression.

The Russian Federation

On 27 August 1993 the Supreme Soviet of Russia passed amendments to the "1990 Law" on Freedom of Conscience and Religion that would impose certain restrictions. President Yeltsin refused to sign these amendments, but they represent the attitudes of a majority of the Supreme Soviet and perhaps also of the Russian people. (As this paper is being written, a revised form of these amendments is being debated.) On 28-30 January 1994 a group of international human rights experts gathered at the "De Burght Conference" in the Netherlands to assess the state or religious liberty in Russia. Their report was published in Emory International Law Review.

The conclusion of the report reads as follows: "The August 27, 1993 Amendment to the 1990 Russian Law on Freedom of Conscience and Freedom of Religion poses a grave affront to fundamental human rights. The August 27 Amendment imposes cumbersome restrictions on 'foreign' and 'new' religious organizations. It weakens guarantees that all believers and religious communities will be treated equally. It guarantees fundamental human rights protection only to citizens. It expands opportunities for inappropriate state regulation of religious affairs. It singles out the Russian Orthodox Church for special privileges and protections that go beyond legitimate recognition of its unique role in Russian history, culture, and society. It is filled with ambiguous, vague, and contradictory provisions and is legally flawed in many respects."7

For our purposes let us look at the three specific charges that the Amendment: 1) restricts human rights protection to citizens, 2) provides inappropriate state regulation of religious affairs, and 3) grants illegitimate special privileges to the Russian Orthodox Church. Each charge raises important questions. Are there any defensible distinctions that may be made between the religious freedom of citizens and non-citizens? What is the distinction between appropriate and inappropriate state regulation of religious affairs? What distinguishes legitimate from illegitimate privileges for the Russian Orthodox Church?

First, with respect to freedom of conscience, there can be no distinction between citizens and non-citizens. This right is absolute and guaranteed to all persons, whether or not they are citizens. Article 3 of the Amendment states that: "The freedom of conscience guaranteed by the Constitution of The Russian Federation includes the right of each citizen to freely choose, to have and to disseminate religious or other convictions, to profess any religion or none at all, and to act according to one's convictions provided the individual observes the laws of the State." This narrowing of the right of freedom of conscience must be resisted. Article 3 should refer to the right of "every person."

Article 4 of the Amendment asserts that "citizens, foreigners and stateless persons can exercise freedom of conscience and religious belief" within The Russian Federation, but this is not sufficient to offset the narrower statement in Article 3. Again Article 5 states that the "main guarantees of freedom of conscience and belief in The Russian Federation are: equality of citizens regardless of their attitude towards religion...." This right of conscience must be guaranteed for all persons, not only for citizens.

Moreover, if certain behavior is to be proscribed by law, because it involves "insulting citizen's feelings and beliefs related to religion" or activity inciting "national, social and religious discord" and "actions damaging citizens' health," (Article 10) such proscriptions should protect not only citizens but all persons, as it is all persons who enjoy freedom of conscience.

What about restrictions on freedom of religious expression, freedom of religious association and the freedom to carry on religious business?

Article 12 of the Amendment provides that non-citizens: "residing in The Russian Federation [may] realize the right for corporate meeting of their religious needs through existing religious unions and organizations, representations of foreign religious organizations and also independently by forming, on a par with Russian citizens, their own religious groups and by conducting prayer and worship services and other religious activities where they reside or work." This seems reasonable, except for the phrase "where they reside or work," as this might be interpreted to prevent foreign religious groups from having a place of worship separate from their places of residence and work.

The language that follows, however, unduly restricts freedom of religious expression: "The organizers of such meetings and activities must inform police about them in advance. The proper organs of justice and police may request from the organizers additional information regarding distinct features of their religious worship activities and monitor their adherence to the law." It is reasonable that foreign religious associations be required to register with the government and provide general information about their activities.8 However, they should not need to inform the police about each service or activity they are sponsoring. Such restrictions have a "chilling" effect on religious expression.

Article 20 of the Amendment affords representatives of national religious organizations an opportunity to speak on television or radio during programs financed by the state, but restricts this to Russian citizens. This is an indefensible restriction on religious expression. If national religious organizations are offered media time for religious expression, then it is discriminatory to require that their choice of persons be limited to citizens of The Russian Federation.

The requirement that religious organizations must seek entry permits for foreigners to engage in professional religious work in Russia is perfectly reasonable. Such a requirement need only meet the standard of non-discrimination for religious business. But Article 21 of the Amendment falls below this standard by allowing the state to refuse the entry of such non-citizens if the state finds that: "their activities in other countries have been considered illegal, or were based on use of force, or on belittling personal freedom in choice of beliefs, or contradict the standards of public morality in The Russian Federation." The reasons for refusing entry must be clear and reasonable, such as a prior conviction for fraudulent or criminal activity or harassment. The language of Article 21 is too vague to be acceptable.

Article 27 provides social security for citizens employed by religious organizations. This is a matter concerning religious business. If social security is only granted citizens, regardless of whether or not they are employed by religious organizations, then the distinction between citizens and non-citizens is not discriminatory. But if non-citizens working in other capacities are provided social security benefits, then non-citizens working for religious organizations should also receive such benefits.

The Amendment specifies detailed procedures for constituting religious organizations. The question is whether these procedures violate the freedom of religious association. Local religious organizations are conceived as belonging to centralized religious organizations, which in turn are part of national religious organizations. This structure reflects, I suspect, a desire on the part of the government to give an institutionally hierarchical form to religious activity in order to be able to consult and negotiate with religious leaders—as has been the practice with respect to the Orthodox, Jewish, Anglican, and Muslim communities.

The De Burght Conference Report finds these procedures excessively restrictive, and that may well be. What needs to be clear is that religious organizations, which do not wish to be part of hierarchical structures, are as free under the law to form their own associations as those religious communities whose structures take the form preferred by the state. The principle here is non-discrimination.

Article 16 sets out registration procedures for religious organizations, which allow ten Russian citizens to found a new religious organization. This is a question of freedom of religious association. Article 16 goes on to state: "If the declarants profess a doctrine or belong to a religious movement that as of October 25, 1990, did not have any followers represented by officially acknowledged religious organizations, the registering organ may, for the purposes of additional research, extend the term of consideration for up to 12 months from the day of application."

As it is not clear how the information, which presumably might be obtained over the 12 months provided, is to be used in weighing the application for registration, this restriction is not defensible. Might there be some appropriate review process, as to whether or not applicants represent a "religious" group? I think so , although the difficulty of defining "religion" is well known to all. International law would require that the definition of religion be broad and inclusive, and that the procedures for registration not be burdensome or discriminatory. But it would not rule out some process of review.

The Amendment concludes with a series of articles concerning "property rights and financial rights of religious organizations." Surely, these are not to be held to the same level of scrutiny as articles concerning freedom of conscience, freedom of expression, or freedom of association. The standards for doing "religious business" ought simply to be the standards for all cultural and non-profit organizations doing business in Russia.

What then is the distinction between appropriate and inappropriate regulation of religious freedom by the state? The Amendment makes a number of distinctions between citizens and non-citizens that unduly limit religious expression and association. But not all of these distinctions are unreasonable or burdensome. There can be no such distinction respecting freedom of conscience, and surely there would be a heavy burden of proof to be borne for any such distinction concerning freedom of religious expression. But reasonable and non-discriminatory distinctions might be conceived with respect to freedom of religious association and the freedom to carry on religious business.

Article 11 of the Amendment permits government to "grant requests of major religious organizations, and proclaim dates of prominent religious holidays as additional national holidays." This power might be challenged, as it both gives the state authority to decide among the many religious organizations which are "major" and the authority to provide them with a benefit. Yet surely the regulation of holidays is permissible for a government, and these holidays may well include religious holidays that are not shared by all the religious communities of the country.

In the United States Christmas is a legal holiday. The government has declared a Christian holiday a civil holiday, primarily because the major religious organizations of the country have been and still are Christian. Thus, it may be argued that the state favors the Christian churches among all the religious organizations of the country. The attempt to legalize such a practice in The Russian Federation may raise some difficult questions, but certainly it is legitimate in principle.

Article 18 of the Amendment seeks to protect religious activities by preventing incompatible activities from being located close by. This would seem permissible, so long as the government acts in a non-discriminatory way. Perhaps it limits religious expression unduly, however, by specifying various places where activities that are incompatible might take place—if one assumes that religious expression is not permitted except at such places. It would be better if the language were more inclusive.

Legal provisions, which protect religious expression from incompatible activities and provide holidays requested by certain religious organizations, imply that the state has an appropriate role in furthering religious freedom. This is also seen in the provisions of Article 26 providing tax-exempt status for religious organizations, which confer a privilege on religious organizations in contrast to profit-making organizations. This tax-exemption is generously extended to "profit" from enterprises that pursue their religious purposes. It would appear that this benefit is provided in a non-discriminatory manner.

But does the Amendment provide privileges to the Russian Orthodox Church which, using the words of the De Burght Conference Report, "go beyond legitimate recognition of its unique role in Russian history, culture, and society"? To ask the question is to suggest that some privileges to the Russian Orthodox Church would be appropriate. The provisions in Article 11 with respect to holidays certainly favor the Russian Orthodox Church, but not necessarily in a way that is inappropriate. Moreover, the phrase "major religious organizations" might be further specified so as to include more than the Russian Orthodox Church.

This issue comes to a head in Article 8. The Article states that the "State is secular" and thus is not to "establish religious or any other kind of worldview as the State one or a preferable one" or to "establish any preference for or limitations of citizens, their groups and organizations on the basis of their attitude to religion...." But Article 8 asserts that the state is to provide "support of religious organizations whose activities preserve and develop historic traditions and custom, national-cultural uniqueness and other cultural heritage of the peoples of The Russian Federation—i.e, the traditional confessions of The Russian Federation."

The De Burght Conference Report asserts that Article 8 is contradictory. If the law provides that the state "does not give privileged status to any particular religion or world view," then (the Report argues) the law cannot support the religious heritage of the culture which, because of its historical nature, is not inclusive of all the religious movements in Russia today. Here we see a problem similar to that encountered in the Lynch case in the United States. Is it a violation of religious freedom for an organ of the state to support cultural activities that feature some but not all of the religious images in a society?

Certainly, Article 8 might be more carefully written, but the intent of the Article would be supported by most governments of the world. A reading of international law, which simply asserts that this intent contravenes religious freedom, is too narrow. The Russian Federation should not be expected to live up to a more strict interpretation of the law of religious freedom than that given to the first amendment of the constitution of the United States by the present US Supreme Court.

The issue is whether or not religious expression by the state, if any, violates the rights of its religious communities. Certainly, not all support for religious expression can reasonably be construed as cultural. But the Lynch decision demonstrates that, even in the United States, the state is not prohibited from using religious symbols in certain contexts. If freedom of conscience is assured and if religious expression and religious association is protected by non-discriminatory laws, then it would seem some support for the religious heritage of a society might appropriately be undertaken by the state.


The point of this essay is not to judge or compare the laws of the United States and Russia. Our goal has been to see if distinguishing freedom of conscience, freedom of religious expression, freedom of religious association, and the freedom to carry on religious business are a helpful way of sorting out difficult issues concerning religious freedom.

If we address the many issues of religious freedom without making these distinctions, I believe the standards of international law may be applied in a way that expresses primarily a very Protestant reading of these standards. Protestants emphasize freedom of conscience, the freedom of the individual to have a religion or not to have a religion, the freedom to change one's religion, and the freedom to associate for religious purposes in small groups. Protestants embrace an individualistic and congregational form of Christian life, and see religious freedom as protecting that kind of life.

Orthodox Christian communities have a very different view of religious life and thus of religious freedom. Like the more consensual cultures of Asia, they do not see the fragmentation of social structures as beneficial. Therefore, they are not naturally supporters of the Protestant denominational ethos. Of course, Christian states can be oppressive, as were many European states and some of the Protestant colonies in North America. But the history of Europe and America suggests that societies with some measure of established religion, or with special relationships between the state and the majority religious community, may come to be more tolerant and supportive of religious freedom.

I have suggested that conceiving of religious freedom, as involving three aspects of religious manifestation as well as liberty of conscience, may be a helpful way of sorting out the issues in various countries. Might we utilize such a framework in making steps in the right direction in all our societies? Might not this language of analysis help us apply international law in different historical and cultural contexts in a way that allows some flexibility, but nonetheless represents clear and rational principles?


1 See Human Rights Committee, General Comment No. 22(48) concerning Article 18 (CCPR/C21/Rev.1/add. 4, 27 September 1993).

2 See the view of the Human Rights Committee in Case 172/1984, Broeks v. The Netherlands, Annual Report 1987, at 139.

3 See Human Rights Committee, General Comment No. 22(48). These references to rulings of the Human Rights Committee are noted in "The Future of Religious Liberty in Russia: Report of the De Burght Conference on Pending Russian Legislation Restricting Religious Liberty." Emory International Law Review 8:1 (spring 1994).

4 Michael McConnel, "Religious Freedom at a Crossroads." University of Chicago Law Review 59 (winter 1992): 119-20.

5 403 U.S. at 612-13.

6 Winnifred Fallers Sullivan, Paying the Words Extra: Religious discourse in the Supreme Court of the United States(Cambridge, MA: Harvard University Center for the Study of World Religions, 1994).

7 W. Cole Durham, Jr., Lauren B. Homer, Pieter van Dijk, and John Witte, Jr., "The Future of Religious Liberty in Russia." Report of the De Burght Conference on Pending Russian Legislation Restricting Religious Liberty." Reprinted from Emory International Law Review, 8:1 (Spring 1994), 46.

8 See Andrei Zolotov, "Duma Committee Rejects Plea for Russian Ban on Missionaries," Ecumenical International News Bulletin10 (28 May 1996):18-20. If the State Duma (the lower chamber of the Russian Parliament) enacts the new draft law, "On Freedom of Conscience and Religious Organizations," which was approved on 16 May 1996 by the Committee on Religious and Public Organizations of the State Duma, foreign religious organizations will need to register to operate legally in Russia. This will require submitting a charter or other founding document, which has been certified by a government body in their country of origin, as well as a description of their religious teaching and practice and a statement of intent. To be permissible under international law, such registration would need to be administered in a manner which is non-discriminatory among foreign religious organizations and which is also not unreasonably burdensome.

November 1996 © Robert Traer 2016