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.”1 For three years Catholics, Calvinists, Lutherans, and Unitarians in what is now Romania enjoyed the right to preach and practice their faith without interference by the government. Then John Sigismund died and was succeeded by a Catholic, Stephen Báthori, who turned the power of the state against other religious communities.
This little known episode in the history of Central Europe is a parable for our times. New governments in states formerly under Communist control have in many cases incorporated into their constitutions international human rights law concerning freedom of religion or belief.2 In several instances, however, this opening of societies to preaching in the various religions traditions of our modern world has angered those who hope to recover and reassert the cultural and religious heritage which was devastated by Communist rule.3
In Russia, for instance, the 1990 constitution created a secular state and laws concerning religious freedom which permitted missionaries of all religions to operate in the country with few restrictions. In 1993, however, an Amendment was proposed to limit the activities of missionaries and to re-establish the Orthodox Church. The Duma passed the Amendment, but President Yeltsin vetoed it. Desperate for financial help, he accepted the arguments of Western Europeans and Americans in support of a secular state. Nonetheless, the issue will likely be raised again in the newly elected Duma, and perhaps the next president will conclude that political expediency dictates a different outcome.4
Similarly, constitutional provisions passed in Hungary in 1989 and in Romania in 1991 contain international human rights standards concerning freedom of religion or belief. In Hungary attempts to legislate restrictions on foreign missionaries in order to protect the historic religious traditions have not so far been successful. In Romania, however, nationalist elected officials and leaders in the Romanian Orthodox Church, in their efforts to restore Romanian culture and national identity, ignore the constitutional rights of the religious and cultural minorities. The oppressive restrictions imposed on the Hungarian minority community in Romania are well documented.
Nationalist restrictions, which violate the human right to freedom of religious expression, deserve condemnation. But, in some cases, missionaries as well as nationalists are undermining religious freedom in Central and Eastern Europe today. Both assert their rights in absolute terms. Missionaries assert their individual right to promote their religion without any government interference. They demand strict equality in government policy. Nationalists assert the right of the state to protect the general welfare of the people. They demand policies that give preference to their historic religious tradition or traditions and which restrict the activities of foreign missionaries and minority religious communities.
Is there any principled way that these two positions can be reconciled? To answer this question, let us look more closely at proselytism and nationalism and at the way that the Parliament and Constitutional Court in Hungary have sought to enforce international human rights law.
Those who support greater restrictions on the activities of missionaries (particularly foreign missionaries) object to proselytizing for several reasons. First, proselytizing attacks other religious beliefs and practices in order to assert that its own way is the only way to salvation. Second, it is often supported by financial resources and marketing techniques that make local religious activity seem second-rate and shabby. And third, it is frequently successful.
Orthodox Churches have long been opposed to proselytism and raised this issue during negotiations for admission into the World Council of Churches. In 1956 the Central Committee of the WCC met in Hungary and discussed a report on "proselytism and religious liberty." A final version of this report was approved in 1961 at the third assembly of the WCC. It defined proselytism as a corruption of Christian witness: "Witness is corrupted when cajolery, bribery, undue pressure or intimidation is used — subtly or openly — to bring about seeming conversion.” That same year several Orthodox Churches joined the World Council of Churches.
Four years later the Roman Catholic hierarchy came to a similar conclusion in the Declaration on Religious Freedom adopted by the Second Vatican Council. A footnote to The Documents of Vatican II makes clear the new Catholic position: "Proselytism is a corruption of the Christian witness by appeal to hidden forms of coercion or by a style of propaganda unworthy of the Gospel. It is not the use but the abuse of the right to religious freedom." This understanding is now reflected in Barrett’s World Christian Encyclopedia: A Comparative Study of Churches and Religions in the Modern World, which defines proselytism as "a manner of behaving contrary to the spirit of the gospel" and making "use of dishonest methods to attract" others "by exploiting their ignorance or poverty.”
International law, however, does not make any distinction between religious witness and proselytism. It simply affirms that everyone has the right to freedom of religion or belief and the freedom, individually or in community with others, to manifest this religion or belief "in worship, observance, practice and teaching." The freedom to manifest one’s religion or beliefs may only be limited by laws that are "necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”5 International law was developed to protect individuals and religious groups from the state not to protect one religious community from being proselytized by another. It does not reflect the sensitivity expressed by the World Council of Churches and Vatican II, in their Christian understanding of religious freedom.
It is no surprise that legal attempts in Central and Eastern Europe to limit proselytism have been heavy handed. The 1993 Amendment to the 1990 Russian Law on Freedom of Conscience and Freedom of Religion restricts the freedom of non-citizens in Russian to express their religious faith, a distinction which runs counter to the nature of religious freedom as a fundamental human right.6 Moreover, the Amendment attempts to impose burdensome registration and organizational requirements on foreign religious movements.7
A more promising approach might be grounded on the following three principles. First, such restrictions must reflect a compelling state purpose. That is, they must be necessary for the public welfare and not merely reasonable due to political pressure. Second, however, restrictions on the "business" aspects of religious activity need only be reasonable and non-discriminatory. Third, restrictions on religious expression cannot be based on legal status but must be clearly defined in terms of behavior.
The first principle requires that restrictions on religious expression not simply reflect the convenience of government officials or the pressure of dominant religious organizations. Under international law, religious expression is given the benefit of the doubt, because — as a fundamental human right — freedom of religion or belief is deemed necessary for human dignity.
The second principle means that in carrying on its business, religious organizations must abide by the rules for all comparable organizations. Religious organizations may be required to file reports with state agencies, register to do business in a new location, identify their income, etc. — if comparable organizations are required to do so. Foreign visitors or employees may be required to obtain visas or work permits, according to procedures that are non-discriminatory. Furthermore, there is nothing in international law that prohibits taxing the income of religious organizations, so long as this taxation is carried out in a non-discriminatory manner.
The third principle suggests implementing legally the kind of understanding expressed by the World Council of Churches and Vatican II, rather than passing legislation which limits the rights of foreign missionaries in order to protect the rights of citizens. If certain activities expressing religious conviction violate the rights of others or threaten public safety, the state may legislate limitations on these behaviors concerning the time, manner, and place of such behavior. For example, a religious worship service cannot legally be prohibited, unless it may be shown to be a threat to public safety. But it need not be permitted on the sidewalk in front of the headquarters of another religious organization. Distributing religious literature cannot be denied, but can be restricted to certain behaviors in certain public places at certain times.
Under international law foreign missionaries cannot be excluded from a country, nor can they be subject to restrictions on their freedom of religious expression, which are not also imposed on the citizens of the country. However, if there are compelling reasons the behavior of both foreigners and citizens in expressing their religious convictions can be limited in a manner that does not discriminate against the foreigners.
One example may suffice. In May 1995 a Moscow government official angrily told me how foreign missionaries had approached his son on the street. They tried to convince him that he wouldn’t be saved, unless he embraced their beliefs. Because of this kind of proselytizing, the official wanted to ban foreign missionaries from Russia. A better response, I suggested, might be to pass a law which banned on public sidewalks active "solicitation" but allowed the sale and dissemination of religious as well as non-religious materials.
Anger at proselytizing fuels nationalistic threats to religious freedom. For many in Central and Eastern Europe, religion is inextricably related to culture and national heritage. Father Dumitru Staniloae, a leading Orthodox theologian in Romania, sees faith as a structure involving ethnicity, political power, history and territory. (This is very different than the Protestant notion of a gathered congregation of individual believers, which has shaped the development of provisions protecting freedom of religion or belief under international law.) Most Orthodox Churches identify strongly with a particular ethnic and cultural history, which is represented concretely by a nation. Thus an Orthodox Church expects the state which governs "its" nation to represent and protect the interests of the Church.
Nationalism, however, is not limited to Orthodox Churches. Nationalist movements in some of the newly independent political jurisdictions that were oppressed by Communist rule also hope to use democratic government to recover other religious traditions. For instance, this is the case in some of the Volga nations, which were annexed to Russia in the 16th and 17th centuries and are national autonomous republics within the Russian Federation. In Mordovia a synthesis of local pagan and Christian folklore is being crafted by leading intellectuals and offered as a national tradition. In Chuvash, efforts by the Orthodox Church to establish itself as the national religion are being resisted by the Chuvash National Congress, whose members promote a return to pagan roots.
In Mari El the foundations of an established paganism have been laid. Mari paganism was fully functional until the Communists took control of the country. The oral tradition survived persecution in mythology, prayers and chants, and now a written scripture has been created to promote Mari pagan practice. The Mari parliament has legislated protection of "religious cult zones" (sacred groves of trees) and reserved a plot of land for the construction of the republic’s main temple. The situation in Mari El reminds us that Russian Orthodoxy is a minority tradition in some parts of the Russian Federation, where Russians are an ethnic minority.8
It is perfectly understandable that those, who were oppressed under Communist rule, now seek through representative government to create laws that will assist the recovery of their religious tradition. They will not easily be persuaded that a neutral state, which does nothing either to help or to hinder religious life, is a better alternative than a state that identifies with the dominant religious heritage. Yet in these newly independent nations there are one or more minority religious communities. How are their rights to be protected, if the dominant religious tradition receives privileged support by the state?
International human rights law does not explicitly require a "secular" state. It does not contain a provision similar to the first amendment of the constitution of the United States, which prohibits the establishment of religion. International law requires states to "prevent and eliminate discrimination on the grounds of religion or belief" and to "combat intolerance on the grounds of religion or other beliefs". International law leaves open the issue of "establishment" because special "church-state" relationships are deeply embedded in many cultures of the world, as in Europe.9
International law names the evil as "intolerance" rather than as "establishment", implying that some sort of "tolerant establishment" of religion is possible. Put more precisely, it leaves open the question of special relationships between the state and one or more religious traditions to an evaluation of the effects of such relationships on religious freedom, rather than asserting in principle that any support for religion by a government will necessarily be discriminatory.
Hungary: A Model?
Might Hungary be a model for resolving the threats to religious freedom fuelled by extreme behavior on the part of missionaries and nationalists? In Hungary both the Parliament and the Constitutional Court have struggled with questions of freedom of religion or belief and establishment. Under the 1990 Act IV financial support for designated church activities is guaranteed, and churches are permitted to apply for government subsidies. In 1993 what might be characterized as a "nationalist" proposal was made to curb evangelism and check the activities of "destructive" sects. It would have made registration more difficult and required that all religious groups re-register. In addition, the bill would have required a determination by the government that the activities and beliefs of a religious group seeking registration were consistent with generally accepted morals. It was not approved by Parliament.
To redress the confiscation of religious properties under Communist rule, the 1991 Act XXXII provides for the return of property to "support the creation of new systems to meet the genuine social needs in the spheres of religious life, education and culture." The principle embodied in this legislation is not restitution for wrongful confiscation of private property, but cooperation between the state and religious organizations for the public welfare. Under this law the state recognizes the proper role of religious institutions in promoting the public good and accepts its responsibility to provide some of the resources necessary for religious institutions to fulfil that role.
In Decision 4/1993 the Hungarian Constitutional Court ruled that whenever the state returns school property back to church ownership, it must provide a "real alternative" for those parents who desire that their children attend a neutral public school. In Decision 18/1994(III.3)AB the Court ruled that the state was not to maintain or establish confessional schools, but must make it legally possible for confessional school to exist. It also affirmed: 1) that any law limiting freedom of religion must be interpreted restrictively, and 2) that any such limitation must not concern the content of the belief involved but only external manifestations.
The principle of "neutrality" embraced in Decision 4/1993 places clear limitations on the state. It may not link institutionally with any religious organization, subscribe to any religious teaching, or interfere in internal religious affairs. This is how the Court interprets the constitutional requirement in Article 70/A to "treat all churches equally". The state must refrain from interfering in the internal affairs of religious organizations. Yet, the Court asserts the state may take into account in drafting legislation the external influence of religious organizations due to their historical role in Hungarian society. Most likely this caveat on the principle of neutrality is a way of acknowledging the Catholic Church in Hungary as "first among equals".
As in Russia, it is hard to see how the law of the modern state can ignore the historical dominance of a religious tradition. One must ask, however, whether or not this caveat on the principle of neutrality has this in fact led to unequal treatment of religious groups in Hungary and, if so, how such inequality can be addressed.10
Following international law, which protects the right of children to religious education in the tradition of their parents’ choosing and the right not to be compelled to receive religious teaching against the wishes of their parents, the Hungarian Constitution and 1990 Act IV guarantee parents the right to control the religious education of their children. To enforce this right in a "neutral" manner, the Constitutional Court in Decision 4/1993 concluded that public schools must enable each student to make a "free and well-founded choice" by offering "religious and ideological information that is objective, critical and pluralistic". An American court would rule that schools should not provide any religious education, in order to leave that responsibility to parents and religious organizations. But the decision of an English court would be similar to that of the Hungarian court.11
Also in Decision 18/1994 the Hungarian Constitutional Court upheld the 1993 Act LXXIX which permits state support for up to five years for existing confessional schools which have not been returned to church ownership. The Court recognized "church-state" separation as the proper goal, but argued this could not reasonably be accomplished immediately.12
In Hungary, therefore, the relationship between the state and religious institutions combines elements of "separation" as well as "accommodation" and "cooperation." The state is to be "separate" with respect to the beliefs and internal affairs of religious organizations, but it should "accommodate" religious practice in the society through enabling legislation and may even "cooperate" with religious institutions by funding them to provide educational, social and cultural services contributing to the public welfare.13
More specifically, I believe, the Hungarian model suggests the following principles.
1. Limitations by the state on freedom of religion or belief must be necessary for the public welfare, affect only manifestations of beliefs and not beliefs themselves, and be imposed by law in a non-discriminatory manner.
2. Support by the state for religious institutions is permissible to meet social needs traditionally addressed by religious institutions, including education, so long as the state does not subscribe to any religious teaching and the institutions receiving support from the state are able to use it to meet identified social needs and are not directly administered by the state for more than a reasonably short time of transition to independent status.
3. Support by the state for public education is obligatory, and public education must be reasonably available to all citizens who desire it and include the presentation of religious and ideological information in an objective and critical manner.14
These three principles are derived from a cursory survey of changes in Hungarian law between 1989 and 1994 and may not reflect adequately more recent developments. Yet these three principles, and in particular the first two, suggest an alternative model to "established religion". Does the Hungarian experience, at least as I have presented it, illustrate how a state may support religious activity, acknowledge a special relationship with its historic religious and cultural tradition or traditions, and yet protect the right of freedom of religion or belief as defined by international human rights law? If so, might it be recommended to Romania or to Russia or to the Volga republics?
Or has Hungary failed to protect the fundamental rights of its religious minorities? If the Hungarian experience does not seem promising, does this mean that accommodation or cooperation by the state with religious institutions is essentially incompatible with freedom of religion or belief? Or are there other forms of accommodation or cooperation between the state and religious institutions, or more subtle distinctions than have been made to date in Hungary, which might be helpful in sorting out the issues in the nations of Central and Eastern Europe?
These questions need to be addressed. It is clear that religious freedom is more adequately protected in Hungary than, for instance, in Romania. It is less clear that principles embodied in the decisions of the Hungarian Parliament and the Constitutional Court can be applied to the circumstances of other countries formerly under Communist rule. Our challenge, therefore, is to foster a dialogue among religious and political leaders which addresses these questions and, in doing so, models the religious respect and tolerance we seek to create through the rule of law under elected parliaments and independent courts applying international standards to their own societies.15
In conclusion, it is important to realize that freedom of religion or belief is not merely an issue for governments and human rights lawyers but is our responsibility as well. We are responsible for creating and nurturing the tolerance in our societies that makes it possible for our governments to legislate and enforce religious freedom.
Supporting religious freedom does not mean affirming that all "religions" are equally valid, or that all truth is relative, or that there is no truth at all. Protecting religious freedom does not mean tolerating whatever someone claims to be religious, or providing legal protection for behaviors that are intrusive or oppressive or self-destructive. Every person has an absolute right to her own beliefs, and the state has no right whatsoever to coerce in any way the beliefs of its citizens and foreign visitors. But no person or group has an absolute right to manifest their religious belief. The right of religious expression and, even more so, the right of conducting religious business may be limited by the state, as we have seen.
In supporting freedom of religion or belief we support the rule of law and democratic procedures in society for the resolution of conflicts between persons, religious communities, and the state. But in supporting religious freedom we also we affirm that we can learn from every religious tradition and every person. We are all challenged not simply to defend our religious beliefs but, as the prophet Micah urges, "to do justice and love mercy and walk humbly" with our God.16
1 Janos Erdö, "Struggles of Transylvanian Unitarians for Human Rights," in Religion and Human Rights in Europe (Oxford: IARF, 1995), 145-51.
2 Ninan Koshy, Religious Freedom in a Changing World (Geneva: WCC Publications, Risk Book Series, 1992), 79.
3 Liviu Vanau, "Notes on Romania’s Religious Life: Proselytism," an unpublished paper written for the Human Rights Center of Columbia University, 2.
4 In A. D. Krindatch, "Proselytism in Russia Today: What is the Problem We Discuss?", an unpublished paper written for the Human Rights Center of Columbia University, 3.
5 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, Proclaimed by the General Assembly of the United Nations on 25 November 1981 (Resolution 36/55), Article 1, paragraphs 1 and 3.
6 The 1993 Amendment to the 1990 Russian Law on Freedom of Conscience and Freedom of Religion has been judged by human rights lawyers to pose "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." 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 in Emory International Law Review, 8:1 (Spring 1994), 46.
7 In Liviu Vanau, "Notes on Romania’s Religious Life: Proselytism," 1.
8 Sergei Filatov and Aleksandr Shchipkov, "Religious Developments among the Volga Nations as a Model for the Russian Federation," Religion, State & Society, vol. 23, no. 3 (1995):233-248.
9 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, Article 4, paragraphs 1 and 2.
10 The De Burght Conference on Pending Russian Legislation Restricting Religious Liberty acknowledged, in its criticism that the 1993 Amendment "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", that some legal recognition of the special relationship of the Russian Orthodox Church to the Russian state would be legitimate. Emory International Law Review, 8:1 (Spring 1994), 46.
11 See Helen E. Hartnell, "The Five-year Span (1989-1994): A Status Report on Law & Religion in Hungary," Religion and Human Rights in Europe, 71-87.
12 Facts & Figures About the Transfer of Church Properties, Bulletin of the Public Relations Office of the Prime Minister’s Office, 1993/3, 1.
13 Helen E. Hartnell, "The Five-year Span (1989-1994): A Status Report on Law & Religion in Hungary", 79.
14 W. Cole Durham, Jr. develops these categories in an unpublished manuscript entitled "A Comparative Framework for Analysing Religious Liberty", (1993).
15 In the spring of 1996 the Prime Minister discussed with the Vatican a concordat between Hungary and the Roman Catholic Church. When asked what this would mean for other churches in Hungary, the Prime Minister suggested that similar concordats could be negotiated with them as well. The Prime Minister is also seeking to shift administration for religious affairs to his own office. Both of these changes would increase the power of the Prime Minister in "church-state" relations and make it more difficult for Parliament to ensure the impartial administration of its laws.
16 Micah 6:8.
See also 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, and Robert Traer, "Faith in Human Rights: Our Challenge in the 1990s," "Supporting Religious Freedom: A Strategy for Intervention," and "Concluding Statement of the IARF European Conference" in Religion and Human Rights in Europe (https://iarf.net/resources/publications/).