Religious Freedom in the West: Is the Glass Half Full and Getting Fuller?

1. Religious Freedom in the West: Is the Glass Half Full and Getting Fuller? James T. Richardson jtr@unr.edu CESNUR Conference Baylor University June, 2014 An earlier version of this presentation was presented in January, 2014 at the INFORM conference in London. Please do not quote or circulate without permission.

2. Major Thesis • Since NRMs burst on the scene in the 1960s and 70s there have been varying patterns of jurisprudence involving them as well as other minority religions • After a brief positive reaction to NRMs in the U.S. the reception turned quite negative • This is reflected in reactions by governments and in the initial results of many court cases and legislative actions involving NRMs in America and Europe • But in recent decades there has developed a more tolerant approach to minority faiths, resulting in more religious freedom, both in the U.S. and Europe (but pattern is spotty)

3. Evidence for Thesis • Major decisions by national courts in Europe (Supreme and Constitutional), as well as especially by the European Court of Human Rights (ECTHR) (the focus of this presentation) • Major recent decisions by the U.S. Supreme Court, as well as by actions taken by the U.S. Congress and a number of state legislatures also show support for religious freedom

4. European Developments • Great variation in role of religion and tolerance for NRMs and minority faiths in Western Europe (radically secular France vs. Netherlands and Italy; paternalistic Germany; Greece) • Former Soviet dominated nations made situation even more complex, with some quite secular nations, others dominated by officially recognized churches of differing kinds, while some seem to genuinely value religious

5. Major European NationalCourt Decisions • Germany’s Constitutional Court and the Jehovah’s Witnesses (2005) • France’s Supreme Court ruling in favor of JW’s access to prisoners (Oct. 2013) • U.K. Supreme Court ruling that Scientology is a religion (Nov., 2013) • Other decisions in various countries such as the Netherlands and Italy

6. European Court of Human Rights • 40 years before an Article 9 (freedom of thought, conscience, and religion) violation was found; Kokkinakis case from Greece, 1993 • Timing was propitious, with former Soviet-dominated nations coming into the COE: a message was being sent, using Greece as an exemplar • Since 1993 many more violations of Article 9 were found, most from Eastern and Central Europe, or Greece

7. ECtHR, continued • Finally, in 2011, an original Member State (other than Greece) was found to have violated Article 9 rights • Jehovah’s Witnesses won major tax case, and France was ordered to pay a large award as well • Aumist group and Evangelical Missionary church also won tax cases in 2013, and France was ordered to pay large fines to those groups. • U.K. also involved in one recent Article 9 decision

8. ECtHR, Continued • These decision from Eastern and Central Europe, and from France, seem focused on the right of religious organizations to exist and function • Few adjudicated cases deal with individual religious freedom (such as the right to wear religious garb or symbols) • Several Article 9 Russian cases involving refusal to reregister demonstrate ECtHR’s efforts to work with constitutional courts and support their efforts where possible (Salvation Army, Jesuits, JWs, Scientology and other groups)

9. United States Developments • Religious Freedom Restoration Act (1993), after the Smith case in 1990; declared unconstitutional as concerning local and state governments in 1997 • Many state level RFRAs then were passed • Religious Land Use and Institutional Persons Act 2000) and Wilkinson case (2005) declaring Actconstitutional for institutionalized persons • “Tea cases” in federal courts demonstrate first wins for religious freedom over war on drugs • But some concern about recent pattern of cases allowing more freedom for dominate faiths

10. Conclusions • A pattern of movement in direction of more religious freedom in the U.S. and Europe is discernable, even if uneven and slow. • Caveats: • Not all minority faiths win their cases in any of the courts mentioned • Muslim groups are a special case, encountering many problems when involved in court cases • Some troubling counter examples favoring dominant faiths in both Europe and U.S. • How can this pattern be explained if it does exist? And what about exceptions to the pattern?