Law Mpeccol E744

Relation of Religion to State and
Society
Patricia Santos-Rodríguez
Content type: Encyclopedia entries

Product: Max Planck Encyclopedia of Comparative
Constitutional Law [MPECCoL]
Article last updated: June 2019
Subject(s):
Equality regardless of religion — Freedom of religion — Constitutional mention of God or other deities —
Official religion — Separation of church and state — Christianity — Islam — Status of religious law —
Protection of religious minorities — Secularism
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey
From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber:
Gujarat National Law University; date: 26 December 2022
A. Religion and its Impact on Society
1. A Debated Notion
1 Religion has been defined as the human response towards what is perceived as divine,
encompassing some form of rituals be they practices or obligations to honour divinity.
Despite the debate about whether religion is a scholarly invention or a product of culture
(Smith xi), this criticism does not mean that religion does not exist; rather, it shows its
ambiguity and vagueness (Berman in Reinmann et al 739; Lee et al xvii; Reader 200;
Durham and Scharffs 39). In this article it will be related to an ‘ultimate concern’ (Berman
in Reinmann et al 745), composed of fundamental beliefs about the origin and purpose of
human life and death; convictions for which individuals and communities have been and are
still prepared to offer their lives (Aguilar-Moreno 153 and 172). However, there is more to
the question than definitions and academic disputes. Malnak v Yogi (1977) (US) debated at
the United States (‘US’) District Court of New Jersey, explored the extent to which the
mandatory high school course ‘Creative Intelligence’ clashed with the religious freedom of
the students, given the textbook and exercises practiced in this course. At the heart of the
discussion of the case, was the question of what is religion about (God? Philosophy?
Spirituality?), and what are, if any, its boundaries.
2 The other significant approach to religion, especially from the legal angle, is not its
content but its subjective origin, which is ascribed to human conscience (→ freedom of
conscience and religion or belief). The distinction between freedom of belief and freedom of
religion could be drawn by setting the reality of the first in the privacy of conscience, while
the second would also include some form of public expression as it was stated by the
→ European Court of Human Rights (ECtHR) in Kokkinakis v Greece (1993) (ECtHR) which
decided that Mr Kokkinakis had a right to talk about religion in Greece, where proselytism
was forbidden. It was the first case to come before the ECtHR since it was set up, in 1959,
thus each of the elements of the case was carefully analysed before the verdict. What seems
to be a clear position for the more relevant courts is that freedom of religion entirely
belongs to the subjective belief of an individual (Jamal in Ferrari 99–101) whose sincerity is
never questioned, but rather its collision with some rights of others.
2. Religion and Public Life: Past and Present

3 The impact of religion on social life dates from the beginning of civilizations. This public
side of religion in society appears in early antiquity, where each civilization had its own
gods, customs, and mythology (Mark). For instance, this is shown in the Sumer civilization
(Brich (2016) 450; Speiser 28, 39 and 72; Grayson 36 and 83; Kramer 330; Biggs 365;
Ferris 341); in Ancient Egypt, combining religion, mythology, and medicine (River; Wilson;
Mark); in the Hindu cosmovision (Heitzman 145); at the origin of Confucianism and Taoism
(Nelson in Wolf 319; Ahern in Wolf 348); and in the Mesoamerican cultures (Longhena 80).
Finally, the impact of religion on the public life in antiquity should also refer to Ancient
Greece and Rome (Haggerty in Merril et al 6; Drake in Hudson 1–6). Religion has had its
own impact on the constitution not only of civilizations, but also on the formation of social
mores and cultures all over the world (Martínez-Torrón 253).
4 On the other hand, secularity is described from at least three different perspectives.
Firstly, in reference to political dispositions with regard to religion and state relations.
Secondly, as a philosophical belief which sees religion as an illusion or even a kind of
alienation, and thirdly, as a sociological trend by which the advance of globalization and
modern societies causes the decline of religion (Ungureanu and Monti 1–2). It also
embraces the idea of some intended religious neutrality understood as social indifference
towards religion, impartiality, and lack of recognition of any religious connotation in social
life (Chavura in Barbalet et al 65–68). A new understanding of freedom of conscience
gauges the personal and institutional options of non-believers, agnostics, or atheists.
Secularism increases due to the new consumerist lifestyles, materialism, and the ubiquity of
technical means, that have contributed to make religious manifestations irrelevant or
indifferent to majorities (Acquaviva 234).
5 Despite the influence of the secularist mindset, religious diversity is widespread in other
spaces. Religious diversity also embraces the cause of those who feel non-religious, as not
belonging to any of the established or major religious institutions. The increase of religious
diversities originates from migration and globalization, and also from the institutional
detachment that occurs in countries where institutional or traditional religions decrease in
affiliations, while other religious attitudes attract more adherents. In Europe, the new
religious movements seek their own institutional authentication and representation at the
European Union ('EU') level. This strategy may seek to reach their legitimation at national
level in the EU countries (Pastorelli in Leustean et al 189–95).
3. Present Challenges and Risks

6 Religious diversity is often perceived in cohesive societies as a source of problems,
causing social → discrimination. This has provoked a chain of offensive-defensive reactions
reaching the limit of political alarm at national and international levels. Cases of → hate
speech have caused racial and religious hatred, feeding intolerant behaviours, aggressions,
insults, and lack of respect among religious groups. Cases like Åke Green v Supreme Court
of Sweden (2005) (Swed), acquitted a Pentecostal Pastor of his charges for homophobic
speech; in Belgian Anthroposophic Society v the French Community of Belgium (2006)
(Belg), the Anthroposophic Society was wrongly accused publicly by an anti-sect
community, before being acquitted. In Indonesia, the legal standards towards blasphemy
have evolved through the doctrine set up by the Constitutional Court of Indonesia in its
Decision No. 140/PUU-VII/2009 (2010) (Indon), a judicial review of Law No. 1/PNPS/1965
about the Prevention of Abuse and/or blasphemy, which favours → freedom of expression of
any religious content.
7 Brandenburg v Ohio (1969) (US), is a landmark case on freedom of speech in which the
→ Supreme Court of the United States acquitted a Ku Klux Klan member, Mr Brandenburg,
of his charges for advocating violence, and set up the Brandenburg test, a standard the
government still uses for evaluating attempts before punishing cases of inflammatory
speech. Again, in the US, Joseph Burstyn, Inc v Wilson (1952) (US), also known as the
Miracle Decision, almost ended the → censorship exerted over the film industry that at the
time could ban the public screening of films deemed sacrilegious. Lastly, the case of Otto-
Preminger-Institut v Austria, (1994) (ECtHR) constitutes a hallmark decision dealing with
the boundaries between freedom of expression and the due respect to others’ religious
freedom in each country. The ECtHR held that national authorities were entitled to a certain
margin of appreciation in assessing the necessity of restrictions to avoid offending religious
beliefs.
8 Collisions of freedom of religion with freedom of expression, which is at the core of

democratic systems, are yet an issue in Europe where they have provoked violent
confrontations, like the killing of 17 people in January 2015 in attacks on the satirical
magazine Charlie Hebdo. → Religious persecution, → extremism and fundamentalism are
also kinds of religiously motivated → terrorism that appear in different national and
international contexts. Other examples like the attack perpetuated by members of the Aum
Shinrikyo sect with sarin gas in a tube station (Tokyo District Court in the Aum Shinrikyo
Case (2004) (Japan)); the unlawful imposition of → martial law in Pakistan (Asma Jilani v The
Government of Punjab (1972) (Pak)); or the cases of Islamic terrorism (Jihad) flagging the
cause of Islam, illustrate the point.
9 Another of the risks is the spread of → sectarianism. The formation of sects or cults is
controlled by each state in its territory. Tolerance and flexibility are key principles in some
cases like Mc Allen Grace Brethren Church; Native American New Life Center, et al, v Ken
Salazar (2014) (US) that allowed American Indians to wear and use eagle feathers in their
religious ceremonies, or Gonzales v O Centro Espirita Beneficente Uniao Do Vegetal (2006)
(US), which allowed the consumption of ayahuasca during religious celebrations (ayahuasca
is a drug similar to peyote for Indians, only allowed in religious celebrations). In other
countries, sect repression is pursued by government policies or prohibitions, rather than
court rulings. This is the case in Brazil, where spiritist cults coming from ancient African
slavery (like Camdomblé, Ayahuasca, and the Umbandá) have been forbidden until quite
recently, despite their secret practice (Schmidt and Engler 170, 204, 233). Also, the
persecution of Falun Gong sect, initiated in 1999 by the Chinese Communist Party
(→ communism); or in Europe, where Belgium and France began an anti-sect hunt in the
nineties after news of multiple homicide-suicides of members of the Order of the Solar
Temple in Eastern France and Switzerland.
10 Religious abuse (→ religious persecution) is another recurring problem. In Board of

Education v Grumet (1994) (US) the US Supreme Court ruled on the unconstitutionality of a
school district created with boundaries that matched those of a Hasidic community; in
Heffron v International Society for Krishna Consciousness (1981) (US) the US Supreme
Court upheld the constitutionality of a rule which restricted the → freedom of movement of
trade-fair attendants for public order reasons, while petitioners claimed it was restrictive of
their religious freedom.
11 Finally, there is debate about whether religion should be reduced to the private realm,
or whether it should have a place in the public (Chavura in Barbalet et al 86). EU and US
jurisprudence are decisive in their contributions to a greater understanding of this problem
and its boundaries. Lautsi v Italy (2011) (ECtHR) set up the precedent that the display of
crucifixes in school classrooms as required by Italian law did not violate the → European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Also, in
Town of Greece v Galloway (2014) (US) the US Supreme Court ruled that the Town of
Greece (New York) may permit volunteer chaplains to open each legislative session with a
prayer.
B. Evolution of the Relationship between Religion and Politics

12 Specific ancient religious laws have enforced the union between religion and politics in
different traditions. These laws encompass divine, moral, and legal principles, prescribing
both religious and secular duties, and even retributive penalties for lawbreaking. Cases like
the Sharia, which embodies Islamic canonical law (→ constitutions and Sharia provisions);
the Torah in Judaism, and the dharma in Hinduism and Buddhism, give religious authorities
power over earthly matters (Campanini in Choza et al 213). In a similar vein, indigenous
African cultures do not make a clear distinction between legal, moral, or religious matters,
allowing social and civil distinctions (→ caste systems) (Berman in Reinmann et al 746).
13 One of the earliest distinctions between the religious and the secular can be found in
the Christian Bible where Jesus answered Pharisees’ question about the need to pay Roman
taxes. Jesus’ answer reflected an unusual distinction of powers: ‘Give to Caesar what is
Caesar’s, and to God what is God’s’ (Matt 22: 21). This points out that certain things do not
belong to Caesar (Rahner 8–21; Coulanges 275; Manent 292). The fact of putting a limit on
what the ruler can ask of the citizen, presupposes the principle of political freedom, which
in turn paves the way of the religious freedom nucleus too. The process of distinction,
clarification, and separation of spiritual and earthly powers took centuries of evolution in
Europe and the Americas, being yet a jurisprudential matter.
14 Religion, with its call to give priority to spiritual and/or moral principles over mutable
political interests, became the main competitor to political authority, which in turn strived
to be absolute upon humanity. Mutual fascination and rivalry will be a constant in the
history of human affairs (Peterson 129). Historically, when religious freedom has been
denied, it is the political authority who have taken over religion (Baker and Landers 12;
Martínez-Torrón and Durham 15).
15 Religious values or principles not only limited the exercise of political authority, but also
legitimated it in the West. The Church was seen as another political power since the
Constantine era (based on spiritual reasons, often biased by human interests) (Berman
(1990) 93). In the East, Byzantine emperors would nominate and approve the popes. In
Ancient China, Confucianism would limit the despotic power (→ Confucian
constitutionalism), trying to form the zheng ming, a government which aimed to ensure that
the political class would seek the welfare of their people (Son 26 and 81).
16 The evolution of religious freedom during the medieval period in Europe is rich in
contrasts (Durham and Scharffs 10–13). It forged political alliances, almost reaching
symbiosis between civil and religious powers, as show the investitures; the Church’s post as
a permanent advisor to emperors and kings (Berman (1990) 47; Orlandis 65, 83, 105); the
creation of denominational kingdoms (ie Charlemagne’s → Holy Roman Empire); the ruling
of the principle cuius regio eius religio set up in the Peace of Augsburg; the implementation
of policies allowing the Church to gain economic support from the political powers and civil
society; the setting up of the Inquisition courts; the expulsion of Jews from Spain in 1492
and from other European cities (Suarez (2012) 434); the first religious missionaries helped
by civil authorities as another mean to enlarge their political expansion (Orlandis 125, 147;
Suárez (2003) 363, 396), etc. All contributed to consolidate the relation between Christian
Church and the political power in the West.
17 Also, turbulences and divisions influenced the shaping of political and legal relations
between religious denominations and the civil powers across Europe (Berman (2006) 29;
Baker and Landers 57). Tensions crystallized in the constitution of the Christian Orthodox
Church (with the Schism of 1054, specially supported by the byzantine emperor); the
organization of Crusades (Baker and Landers 85); the first cases of objection of conscience
and civil disobedience; the Reformation and the Counterreformation movements (ibid 187);
the creation of the Anglican Church (ibid 248) and the European wars of religion, until the
Peace of Westphalia, in 1648; the ensuing religious intolerance in the fifteenth and
sixteenth centuries across Europe in Spain, German territories, England, Switzerland
(Zürich, Geneva, Lausanne), and in France (ibid 280); the religious persecutions and the
massive religious migrations (Pilgrims); the confiscation of religious goods; the public
executions of heretics or religious dissidents, etc (Lindholm in Durham et al 26; Baker and
Landers 299 and 313).
18 The strictest separation between the Church and State happened during the
Enlightenment, particularly in those countries where this relationship had been more
intense. Enlighted political philosophy tried to justify the origin and exercise of power
exclusively by human reason, avoiding religious references (→ secularism; Berman (1990)
113; Lindholm in Durham et al 29). While the French secularism originated of an anti-
Catholic and anti-religious connotations, the British one stated its spiritual openness
(Holyoake 8). Both flagged the cause of ascribing world matters to world powers. The
theory of the social contract rapidly spread to other European countries and the new
American democracies (Brugger 21–24).
C. Comparative Constitutional Systems Reflecting Religion and

Politics
1. General Remarks on Religion in Contemporary Constitutions
19 All countries display different legal models trying to define their particular relationship
(if any) with religion or at least, to articulate the principles that will apply if religious issues
arise among their population (Durham and Scharffs 114–22). Secularity guarantees the
distinction and practical separation between the civil and the religious. It may vary from
pure laicism (opposing and/or prohibiting any public religious display), to more tolerant
formulas, meaning that governments should remain neutral on the matter of religion and
should not enforce nor prohibit any religious practice. However political secularism cannot
be reduced to freedom of conscience and abstention of public religious practice. There are
a number of areas where religion may collide with mainstream politics.
20 Areas such as education, media, and family (to name a few) may clash against the
established system. The ECtHR, in Grzelak v Poland (2010) (ECtHR), considered the state’s
failure in its duty to provide ethic classes and associated marks to a pupil excused from
religious instruction; Gündüz v Turkey (2003) (ECtHR) condemned Mr Gündüz, a leader of
the Islamist sect Tarikat Aczmendi, for appearing in a TV programme making critical
statements concerning → democracy, and calling openly for the application of the Sharia in
Turkey. Additionally, in Fouad Belkacem v Belgium (2017) (ECtHR) Mr Belkacem, the leader
and spokesperson of the organization ‘Sharia4Belgium’ was convicted for incitement to
hatred and violence on account of his remarks on YouTube videos concerning non-Muslim
groups and the Sharia law. In a further example, Serife Yi?it v Turkey (2010) (ECtHR), the
widow Yiit sought to have legally recognized her former religious → marriage with ÖK in
order to have her youngest daughter included in the civil register, to perceive her
husband’s retirement pension, and to get his health-insurance benefits transferred to the
family.
21 Globalization, international migrations, war conflicts, terrorism, and poverty concur

increasing the reach and number of religious debates. Peoples from different traditions are
now pushed to live together and to find new ways to maintain peace in daily life (Enyedi
223). The complexities and the risks of religious radicalization support political secularism
as sort of national self-defence (Calhoun 88; Taylor 423). Secularism, secularity,
separationist models, and accommodationist ones are academic distinctions to denote the
state models which strongly oppose religion (secularist or separationist models), and the
constitutional patterns which allow it (secular or accommodationist ones) (Durham and
Martinez-Torrón 3; Årsheim 128).
22 Each constitutional system strives to reach their optimum depending on their own
tradition and their political momentum. There are no fixed patterns to classify the religion-
state continuums; rather, different tailor-made constitutional models have been drafted
aligning historical, cultural, and sociological settings with the political requirements in each
country (Stepan 114). The most frequent option usually remains committed to some sort of
religious neutrality, while allowing certain levels of tolerance or cooperation with the
existing religious denominations in the country. State commitment to support religious life
(activities, institutions) can be assessed by examining the reach of national policies such as
the existence and quality of subsidies for religious facilities and activities, the kind of
recognition given to religious education, the permissibility of religious symbols and
religious clothing in public places or the existence of an official government department for
religious affairs, etc (Stepan 117; Enyedi 225).
23 Each constitution recognizes its own state-religion relationship arbitrating its

configuration under certain principles (principle of neutrality, principle of → tolerance,
principle of laicity or secularity, principle of equality, and principle of mutual support or
cooperation with religious institutions). The different possible constitutional models that
regulate state-religion matters can be better understood in the context of their country
traditions and social practices, in awareness of the historical and cultural realities of the
country in question, reactions to previous abuses, and socially perceived religious biases
(Portier 18; Martínez-Torrón and Durham 7–16; Beckford in Barbalet et al 43–56). These
coordinates are the elements which best explain any special emphasis in each constitutional
text. Even using the same word, their meanings differ from one country to another. For
instance, the Turkish Republic was founded on the principle that the state should be
secular, using the term laik. After the proclamation of the Republic on 29 October 1923 the
public and religious spheres were separated through a series of revolutionary reforms: the
abolition of the caliphate on 23 March; the repeal of the Constitutional provision declaring
Islam the religion of the state on 28 April 1928; and, lastly, on 5 February 1937, a
constitutional amendment recognizing explicitly the principle of secularism (see Art. 2 of
the Constitution of 1924 and Art. 2 of the Constitutions of 1961 and 1982) (Turk). In
contrast, the term laïcité as created in France in 1905, was a construct against the Ancient
régime and the religion of this regime (the Catholic one). Both terms share the same
linguistic root but differ in their interpretation and application, which can be only
understood in the light of other elements such as each country’s history, political system,
and political interests (Enyedi 222 and 230).
2. Secular Models
24 Neutral or secular states tend to adopt a variety of positions, from repressing any
formal religious connotation to different forms of pluralistic tolerance, always trying to
align their history and culture with the principles of neutrality and separation in religious
issues. The hardest positions towards religion may involve confining religion to the realms
of an individual’s privacy, accompanied of public surveillance of all religious matters, even
reaching at times, its persecution by the government. This kind of secularism was legally
coined by the French term laïcité in 1789, featuring these negative views of religion.
25 This secularist position could be the case in the Constitution of the People’s Republic of
China: 1982, Article 36 (China) which after recognizing freedom of religion and belief,
specifies that: 'No state organ, public organization or individual may compel citizens to
believe in, or not to believe in, any religion; nor may they discriminate against citizens who
believe in, or do not believe in, any religion. The state protects normal religious activities.
No one may make use of religion to engage in activities that disrupt public order, impair the
health of citizens or interfere with the educational system of the state. Religious bodies and
religious affairs are not subject to any foreign domination'. There are five officially
sanctioned patriotic religions in China: the Buddhist Association of China, the Chinese
Taoist Association, the Islamic Association of China, the Patriotic Movement of Three
Human Beings and the Chinese Patriotic Catholic Association. While they enjoy some
degree of protection, they are subject to restrictions and controls under the State
Administration of Religious Affairs, which has established a restrictive framework to control
religious doctrines, meetings, teachings, practices, worship sites, and religious personnel of
registered organizations. Unregistered religious groups, those who have failed to comply
with the Government requirements, like Falun Gong, Tibetan Buddhists, clandestine
Catholics, and Uighur Muslims, are subject to official punishments and repression,
including detentions, prison, torture, or forced religious conversion (US Congressional-
Executive Commission on China Annual Report 2017).
26 Another example is the Constitution of the Democratic People’s Republic of Korea: 1972
(as Amended to 1998) Preamble (N Kor) which establishes Juche as state ideology
embodying the idea of ‘guidance by the great leader Comrade Kim Il Sung’. This is
presented as a political alternative to traditional religion that has in fact become the largest
political religion in North Korea. All other religious practices of any other denomination are
overseen and strongly surveyed by the state.
27 This neutral position usually entails an absence of legal recognition or legal status of
the churches or religious institutions of the existing denominations and an absence of
public financial support. Consequently, the regulation of religious denominations is left to
their private self-organization and there is usually no record on any official registry nor
legal or political recognition by the state. Moreover, there is weak or null involvement––on
the part of government––with religious activities or initiatives. In the public realm, all
religious beliefs are equally accepted, although none of them are publicly supported.
Socially speaking, this means that public displays and/or references (ie → state symbols,
→ public holidays, etc), and religious support from the public administration will be avoided
(Stepan 119).
28 Some examples inspired in the separatist model are: the Political Constitution of the
United Mexican States: 1917 (as Amended to 2017) Articles 30, 40, 115, 122 (Mex) which
recognizes laicism as one of the established principles for its democracy; the Constitution of
the Cuban Republic: 1976 (as Amended to 2002) Articles 8, 42, 43, and 55 (Cuba)
guaranteeing freedom of religion in a separationist system, as in Articles 39 and 104 which
limit this freedom in the education while favouring the teaching of Marxist theories upon
any other doctrine.
29 In this same line, the Constitution of the French Republic: 1958 (as Amended to 2003)
(Fr) declares in Article 1 the secularity of the political system and in Article 10 equates
freedom of religion with freedom of opinion. The Charter of Fundamental Rights and
Freedoms recognized by the Constitution of the Czech Republic: 1992 (Czech) engages with
the ‘sanctity of human dignity and liberty’, and only mentions freedom of religion and of
conscience or belief in Article 15, avoiding any other mention. Likewise, the Constitution of
the Republic of Turkey: 1982 (as Amended to 2002) Preamble, Articles 2, 10, 13, and 14
(Turk) also declares and guarantees its secular order.
30 Further examples of the separation between religion and state can be found in the
Constitution of the Republic of Singapore: 1999, Article 15 (Sing), which establishes a strict
control upon religious practices to be met by the judicial interpretation while the
Constitution of Japan: 1946, Article 20 (Japan) establishes on the one hand that no religious
organization shall receive any privileges from the state, and on the other, that the state
shall not take part in religious education. The Commonwealth of Australia Constitution Act:
1900, Article 116 (Austl) expressly establishes that ‘the Commonwealth shall not make any
law for establishing any religion … or for prohibiting the free exercise of any religion, and
no religious test shall be required as a qualification for any office or public trust under the
Commonwealth’.
31 In Africa, the Constitution of Kenya: 2010, Article 8 (Kenya) declares the inexistence of
state religion while the Constitution of the Republic of Chad: 1996 (as Amended to 2013)
Article1 (Chad) affirms the separation of the religions and the state. The Constitution of the
Republic of Bénin (Law No. 90–32): 1990, Articles 2, 5, and 10 (Benin) also declares a
secular regime despite favouring the spiritual development of people. Interestingly, all
these countries declare to abide by the respect of freedom of religion, banning any kind of
religious discrimination. The legal and political implementation of religious freedom in all
these countries seems to rely on the secularist approach albeit obeying to different reasons.
32 Also inspired in the separationist approach, other constitutional patterns accept

existing religious denominations under certain Church–State principled distance. For
instance, the Constitution of the Republic of Albania: 1998 (as Amended to 2012) Articles 3
and 10 (Alb) declares state neutrality and guarantees the coexistence of religious
denominations. The Constitution of the Republic of Uganda: 1995 (as Amended to 2005),
Article 7 (Uganda) states no official religion and in its Preamble recognizes religious
plurality and religious integration in the country.
33 However, according to the separationist approach, even allowing freedom of conscience

is seen as discrimination against non-believers, and a violation of the principles of neutrality
and equality (Portier 5; Martinez-Torrón and Durham 16).
3. Denominational Models
34 Religious establishment denotes a close or official bond between church and state
relations, assuming a variety of forms due to intertwined connections and overlaps. When
the close bond between Church and State only refers to a particular religious institution, it
self-classifies as a denominational model. Denominational states established their official
link to a particular religion via their official religious text and/or their constitution. This
kind of constitution served as a guarantee of certain religious tradition over others ranging
from pure monistic models to other more pluralistic ones. The religious privilege did not
necessarily entail the prohibition of other religions nor their practice. These models were
frequently used in the nineteenth century.
35 For instance, the first written Islamic constitution, the → Ottoman Constitution of 1876
was an example of an Islamic country (then run by this monistic church–state model) and an
example of political tolerance for other existing religious denominations at that time in
Turkey. Five Christian civil servants participated in the writing of the Ottoman constitution
and religious freedom was explicitly recognized in its Article 11, and implicitly guaranteed
in Articles 8, 17, 18, and 19. Another example of a denominational constitution of the
nineteenth century was the → Spanish Constitution of 1812 which declared the Christian
Catholic faith ‘national religion’, and articulated the support of the Spanish state to the
Catholic Church. Constitutions in Muslim countries (even if they self-appoint secular states)
fall under this privilege-giving model of their Islamic religious tradition. Denominational
states are found to be at the higher degree of state and religion identification and mutual
support (after the case of theocracies, like the Vatican City (→ Holy See), or the → Taliban
state of Mahdiyyah (Sudan) in the nineteenth century.
36 Denominational states generally involve the formal recognition of a particular religion

and its particular institution in the country as the official or national one. Denominational
may well qualify as a kind of formal unity between the Church and the State, despite certain
substantive division between them, or as a formal and substantive unity of Church and
State (theocracy). The regime usually encompasses an economic system which addresses
part of the public budget for the cult and the activities promoted by the state religion
(→ public finance), and it may regulate the religious body through their public law. This kind
of established church in confessional states is currently present in Greece with the
Orthodox faith, as in the Constitution of the Hellenic Republic: 1975 (as Amended to 2002)
Article 3 (Greece) and in the past Constitution of the Kingdom of Nepal: 1990, Article 4
(Nepal) which self-appoints as a Hindu Kingdom.
37 The United Kingdom is another country that has been traditionally supportive of two
established churches, the Church of England, or Anglican Church, and the Church of
Scotland or Presbyterian Church (since 1923). In the case of England, this support dates
back to the Bill of Rights Act 1689, which declared the Rights and Liberties of the Subject
and Settling the Succession of the Crown, section IX (Eng) and in the Act of Settlement
1701, sections II and III (Eng). Similarly, the Church of Scotland Act 1921, sections II and
III (Scot) reorganized as Scotland’s national church based on a Presbyterian system. Other
countries where there used to be Folkekirkes have evolved into established churches,
separated from the government but still enjoying some of their former privileges, such as in
the Constitution of the Republic of Finland: 1999 (as Amended to 2007) section 76 (Fin);
and the Instrument of Government 1974 (as Amended to 1998) Chapter 1, Article 2;
Chapter 2, Articles 1, 2, 21. and 23; Chapter 8, Article 2 (Swed) (Seppo 91; Christoffersen
145–47; Stepan 115 and 121).
38 There are also a number of constitutional models that could be described in their
Church–State relation as of positive accommodation or positive neutralism, which welcome
more flexible formulas towards the recognition of the religious fact in their territories than
secularist models, which avoid any relation with these matters. These accommodationist
models which host negotiations with plural religious denominations regarding common
interests, are typical of the new democratic secularism. In these countries, the state
actively supports religion and provides the space needed. This requires, for example, that
the state include religious needs in official discourses, planning laws, and implementing
policies. This is usually supported and implemented by the courts and state officials (Stepan
123). Europe could be seen as a continent pioneering this kind of constitutional model,
found, for example, in the Constitution of the Kingdom of the Netherlands: 1983 (as
Amended to 1995) Articles 1, 6, and 23 (Neth); the Coordinated Constitution of the
Kingdom of Belgium: 1994 (as Amended to 2017) Articles 11, 19, 20, 21, and 24 (Belg); or,
the Constitution of the Federal Republic of Germany: 1949 (as Amended to 2014) Articles 3,
4, 7, 33, 56, 116, and 140 (Ger).
39 The special case of Israel combines its secularity, as stated in the Provisional
Government of Israel, The Declaration of the Establishment of the State of Israel: 1948
(Isr): ‘The State of Israel … will ensure complete equality of social and political rights to all
its inhabitants irrespective of religion … it will guarantee freedom of religion, conscience’
with religious establishment within the Jewish tradition. Establishment can be found at
Basic Law: The Knesset: February 12, 1958 (as Amended to April 1, 1981) Article 7A (Isr)
which recognizes the State of Israel as a Jewish state, as do Basic Law: Human Dignity and
Liberty: March 17, 1992, Article 1a and Basic Law: Freedom of Occupation: March 9, 1994,
Article 2. Additionally, Basic Law: The Knesset: February 12, 1958 (as Amended to April 1,
1981), Article 12 (Isr) which mentions observance of Jewish festivals; Basic Law: Jerusalem,
Capital of Israel: July 30, 1980, Article 3, which guarantees public protection of the → holy
places, and Basic Law: The Judiciary: February 28, 1984, where Article 1 recognizes judicial
power in Jewish religious courts (beit din) and Article 15 gives Supreme Court faculties to
decide and organize those Jewish religious courts (batei din).
40 Interestingly, the expression 'religious status systems' (Durham 366) denotes the official
recognition of multiple religious-tiered systems with regard to religious affairs, tax
exemption, religious education, → citizenship, family law, and marriage. For example, the
Constitution of the Republic of India: 1950 (as Amended to 2016) Articles 25, 26, 27, 28, 29,
30, 46, 51A. Furthermore, the Constitution of Canada, in the Constitution Acts 1867 to 1982
(unofficial consolidation current as of 2008; last Amended to 2011), Articles 93, 93A (as of
1867), and sections 2, 15, 29, 91 of the Constitution Act 1982 (Can) endorse freedom of
religion and belief, non-discrimination on religious grounds, freedom of religious education,
and civil acceptance of religious marriage ceremonies of multiple regulations, submitting
them to the laws of Canada. The Canadian Charter of Rights and Freedoms, Constitution
Act 1982, section 27 (Can) guaranteed the respect of Canadian multiculturalism, applicable
to religious diversities. This line was strengthened by the → Supreme Court of Canada
(Cour suprême du Canada) in two landmark cases, → R v Big M Drug Mart Ltd Case (1985)
(Can) and R v Edwards Books and Art Ltd (1986) (Can). Both judicial sentences invoked
sections 2 and 27 to invalidate laws that required businesses to close on Sundays ignoring
other religious days of rest. These laws derived from the Christian tradition of respecting
Sunday as the day of rest, but were overturned to allow workers the freedom to choose a
different day to rest, according to their own religious denomination.
41 Public religious endorsement or mention of a particular religion is still present in some

constitutional texts, despite being of little practical significance. For instance, the
Constitution of the Principality of Andorra: 1993, Article 11.3 (Andorra); the Constitution of
the Italian Republic: 1947 (as Amended to 2012) Articles 7 and 8 (It); the Constitution of the
Kingdom of Spain: 1978 (as Amended to 1992) Article 16. 3 (Spain); the Constitution of the
Argentine Nation: 1994 (as Amended to 2000) Article 2 (Arg); and the Constitution of Peru:
1993, Article 50 (Peru). All the texts make explicit reference to the special place that the
Catholic Church has had in their national history, despite the secular stand taken towards
this denomination and/or religious institutions in general.
42 Similarly, the Constitution of the Russian Federation: 1993 (as Amended to 2014)
Articles 13, 14, 19, 28, 29, and 59 (Russ), recognizes freedom of religion and belief and its
practice. This notion that continued with the Law on Freedom of Conscience and Religious
Associations passed by Yeltsin on 26 September 1997 (also known as the 1997 Law), refers
to the historical place of the Orthodox church in their country, while also mentioning Islam,
Judaism, and Buddhism. Similarly, the Constitution of the Oriental Republic of Uruguay:
1966 (as Amended to 2004) Chapter III, Article 5 (Uru) refers to the Catholic Church, while
at the same time grants freedom to all sects. A case where this involves official support is
the Political Constitution of the Republic of Panama: 1972, Article 35 (Pan) which
acknowledges the sociological majority of the Catholic faith in the Panamanian people.
43 Usually pertaining to the denominational context, some constitutions may refer their
adhesion to a certain religion in particular, or may recognize it in a moderate fashion, by
choosing to address some deity (→ express recognition of deity in constitutions) in their
→ preamble, or in the first Articles. For example, the Preamble of the Constitution of South
Africa: 1996 (S Afr); the Preamble of the Constitution of the Republic of Ecuador: 2008
(Ecuador); the Preamble of the Constitution of Egypt: 2014 (Egypt), or the Preamble of the
Constitution of Ireland (as Amended to 2015) (Ir). The invocation of the name of God, the
use of oaths (→ oath), or swearing allegiance to one’s own country on a sacred book at the
time of taking a position of responsibility in the government or in bodies of public
relevance, is another way to show respect for the tasks that will be undertaken, as
established in the Political Constitution of the Republic of Costa Rica: 1949, Article 194
(Costa Rica), or the Constitution of the Hellenic Republic, Articles 33 and 59 (Greece). In
secular contexts, this oath is substituted by an oral statement made in conscience by those
appointed to government before the main dignitaries and/or the Constitution of the country.
See, for instance the oath of allegiance required in the Constitution of Australia: 1900,
section 42 (Austl) which replaced the formerly religious oath of the Constitution Act 1867 of
the United Kingdom, section IX.128 (UK). These secular oaths allow the word ‘swear’ to be
replaced by ‘affirm’ and the omission of the phrase ‘so help me God’. Oaths can also be
made on a holy book or not.
44 Religious neutrality is sometimes declared in constitutional texts: India, Tunisia, and
Albania express this principle explicitly. The Preamble of the Constitution of the Republic of
India; the Constitution of Tunisia: 2014, Article 6 (Tunis) which stipulates that: ‘The state is
the guardian of religion. It guarantees … the neutrality of mosques and places of worship
from all partisan instrumentalization.’ The Constitution of Albania: 1998 (as Amended to
2012) Article 102 (Alb) stipulates that: ‘The state is neutral on questions of belief and
conscience’. In nations where religion is deemed to act as a discriminatory element, the
expression of neutrality is sought to guarantee stability.
4. Other Constitutional Models

45 Other secular models also feature a sort of partnership with religions in general, or
with some of them in particular, usually adapting their legal relationship to the number of
faithful in the country. Thus the state recognizes the existence of different religious
denominations in the national territory, conceding to each one the particular legal status
that better serves their representation in the country. The state can allocate certain public
expenditure to support occasional or permanent religious activities that are deemed of
public or social interest; public tolerance to all religious beliefs in the public sphere is
guaranteed and there are public channels of communication between the government or its
delegates and the different religious representatives. Registered religious institutions are
let to self-regulation and organization. Partnership allows each country to find their own
way to welcome religious diversities, according to its history, political interests, and cultural
background.
46 The Constitution of the Republic of Senegal: 2001 (as Amended to 2008) Articles 1, 4, 5,
8, 22, 24, and 25 (Sen), as well as the Constitution of the Republic of Indonesia: 1945 (as
Amended to 2002) Article 29 (Indon) declares that, ‘the State shall be based upon the belief
in the One and Only God’ and will guarantee ‘all persons the freedom of worship, each
according to his/her own religion or belief’. Both countries feature a very inclusive positive
accommodation toward religions, where financial aid to religious schools has paved the way
for forms of cooperation between state and the existing religions. For example, it is
reported that in Indonesia, if a religious school wants official recognition, there is a
consensual co-design process for co-editing books on the history of religion by state
authorities from the Ministry of Education and religious leaders from major Muslim
organizations (Stepan 130–34).
47 Several other countries have established other accommodating views on religious

affairs. For example, the Constitution of the United States of America: 1787 (as Amended to
1992) (US), which enacts freedom of religion in the religion clauses of the First Amendment
as of 1791. Furthermore, the Constitution of the Democratic Republic of Congo: 2005 (as
Amended to 2011) Articles 22 and 45 (Dem Rep Congo); the Constitution of the Republic of
Benin, Articles 14, 23, and 26; the Constitution of the Republic of Ecuador, Articles 11, 19,
66, and 174; the Constitution of India, Articles 15, 25, and 26; the Constitution of the
Republic of Croatia: 1990 (as Amended to 2001) Articles 14, 17, 39, 40, 41, and 47 (Croat);
the Basic Law for the Federal Republic of Germany 1949 (as last Amended to 2002) Articles
3, 4, 7, 33, 56, 116, and 140 (Ger).
48 Italian constitutional jurisprudence has helped to contextualize the interpretation and

guarantee of religious freedom as stated in the Constitution of the Italian Republic: 1947
(as Amended to 2012) Articles 19 and 20 (It). According to the constitutional Sentence No.
67 of 2017, the Italian republican order is characterized by the principle of secularism, to
be understood in accordance with the meaning that previous constitutional jurisprudence
has provided: Sentences No. 63 of 2016, No. 508 of 2000, No. 329 of 1997, No. 440 of 1995,
and No. 203 of 1989. Italian jurisprudence explains that secularism is not to be understood
as state indifference to religion, but rather as a safeguard for religious pluralism, in support
of the maximum expansion of freedom for all, according to criteria of impartiality. This does
not exclude the possibility that the state regulates relations with individual religious
denominations bilaterally and therefore in a differentiated manner, as provided for by
Articles 7 and 8 of the Constitution. This regulation can intend to satisfy specific needs, to
grant particular advantages or to impose particular limitations, or to give relevance, in the
ordering of the state, to specific acts forming part of a religious confession (most recently,
Sentences No. 52 and No. 63 of 2016). The legislator (national and regional) is not allowed
to ‘discriminate between religious denominations based on the sole circumstance that they
have or have not regulated their relations with the State through agreements’ (Sentence
No. 52 of 2016). In this sense the judicial decision highlighted that the principle of
availability of adequate spaces to make ‘cult activities concretely possible, or in any case …
facilitating them’ (Sentence No. 195 of 1993) falls within the protection of Article 19 of the
Constitution, which recognizes the right of all to profess their religious faith, in any form,
individual or associated, to make propaganda and to exercise the cult in public or in private,
with the sole limit of respect for morality (Sentence No. 63 of 2016).
49 Finally, other countries have found an accommodating regime for religious

denominations while safeguarding their religiously established regime. This is the case in
the Constitution of the Kingdom of Denmark: 1953, sections 4, 6, 66–71 (Den); in the
Constitution of the Kingdom of Norway: 1814 (as Amended to 2004) Articles 1–2 (Nor);
whose established church is the Evangelical Lutheran; in the Constitution of the Tunisian
Republic, Articles 1 and 6; and in the Federal Constitution of Malaysia: 1957 (as Amended
to 1996) Articles 3 and 11 (Malay), which establishes Islam as the state religion but
recognizes freedom of religion and belief. Furthermore, the cases of the Constitution of
Costa Rica, Title VI, Article 75, and the Constitution of the Republic of Malta: 1964 (as
Amended to 2007) Articles 2 and 40 (Malta) both note that the Catholic Church is the state
religion without impeding the exercise of any other religious practice. Finally the
Constitution of the Republic of the Union of Myanmar: 2008, Article 363 in connection with
Article 361 (Myan) recognizes ‘special position of Buddhism as the faith professed by the
great majority of the citizens’, and Article 362 mentions ‘Christianity, Islam, Hinduism and
Animism as the religions existing in the Union’ at the moment of the enactment of the
Constitution, and Articles 34, 348, 352, and 354 grant freedom of religion.
D. International Standards and Other Connected Rights

1. International Connectedness: Religious Freedom and Other
Related Rights
50 From the perspective of international law, the key references related to religious
freedom are Article 18 of the → Universal Declaration of Human Rights (1948) (‘UDHR’);
Article 18 of the → International Covenant on Civil and Political Rights (1966); and the
United Nations ('UN') Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief (1981). Article 18 UDHR guarantees freedom of
religion, belief, and conscience, granting protection to any mental conviction. Its application
tends to favour established religiosity over less conventional beliefs; however, the reference
to individual’s conscience protects any belief, be it related to a particular system or to none.
Article 2 UDHR, which includes religion alongside ‘race, colour, sex, language, political or
other opinion, national or social origin, property, birth or other status’, as reasons for non-
discrimination, has traditionally required further efforts of legal interpretation. Religious
freedom is described as a human right supporting the freedom of individuals and
communities, in public or in private, to manifest religion or belief, as well as to teach,
practice, worship, and observe religion without government influence or intervention. It
also includes the freedom to change one’s religion or belief, or to have no religious
convictions at all and in any case, forbidding being discriminated out of any of these
circumstances.
51 Religious belief appears in the main UN international conventions such as Article 2

International Convention on the Prevention and Punishment of the Crime of Genocide,
1948; Article 5 vii of International Convention on the Elimination of Racial Discrimination,
1965; Articles 2, 4, 18, 24, 26 International Covenant on Civil and Political Rights, 1976;
Article 2 → International Covenant on Economic, Social and Cultural Rights (1966); the
International Convention on the Elimination of All Forms of Discrimination against Women,
1979 ('CEDAW'); Articles 2, 14, 20, 29, and 30 of International Convention on the Rights of
the Child, 1989; Articles 1, 7, and 12 of International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, 1990, and the Preamble of
the Convention on the Rights of Persons with Disabilities, 2006. All conventions except
CEDAW consider religion as a condition for nondiscrimination and a human right.
52 CEDAW on the other hand, makes no mention of religious belief and avoids its
consideration as a cause of inequalities or abuses upon women, despite the high number of
cases that have been decided in favour of woman’s dignity and against their obligation to
cover their head or their face with a particular religious garment. In this respect, the veiling
of women, especially full veiling through the burqa or the niqab, is often perceived by non-
Muslims as a symbol of the subjugation of women to men, restricting the role of women
within society, limiting their professional life, and impeding their social and economic
activities. (Bielefeldt et al 377; → gender discrimination).
53 The minimum core of international standards has been described after decades of
experience by the Special Rapporteurs on freedom of religion or belief at the UN Special
Rapporteur’s Digest 2016, including: freedom to adopt, change, or renounce a religion or
belief (Bielefeldt et al 55–74); freedom from coercion in these same choices (ibid 75–91);
the right of religious institutions and groups to appoint their own clergy and self-organize
their own issues (ibid 180–90); the right to observe religious holidays and days of rest (ibid
166–79); the freedom of opinion and of expression including questions related to religious
conflicts; the rights to establish and maintain a charitable and humanitarian institution, and
the right to apply for and receive public and private funding (ibid 242–57). Some other links
of this right with other fundamental ones are: the right to → conscientious objection related
to freedom of conscience (ibid 258–305); freedom to worship (ibid 107–16) and freedom of
religious affiliation, related to → freedom of association; freedom to set up places of
worship, with → freedom of assembly; freedom to display religious symbols and clothes in
public with freedom of expression; the right to teach and to disseminate materials including
missionary activity with → freedom of teaching (ibid 191–203); the right of parents to
ensure the religious and moral education of their children recognized in the → right to
education, and → rights of children (ibid 204–22); and lastly, the right of religious leaders to
communicate with individuals and communities on religious matters at a national and
international level, with freedom of information and of communications (ibid 233–41).
54 Some of these rights and freedoms have their own place in modern state constitutions,
while others appear regulated in national legislation, statutes, or institutional agreements
between the state and the corresponding holders, be it religious institutions or individuals
(ibid 29). Religious freedom also offers a vast field of study and application for collective
rights, more specifically in the case of religious minorities as holders of their civil and
religious rights (ibid 39; → protection of religious minorities) and the rights of religious
groups within religious institutions. International treaties and the Digest reveal that nations
share common understanding about the need to protect the right to religious freedom and
the need to guarantee its core minimum standards.
2. International Connectedness: Religious Freedom and Secularism

55 According to Tassopoulos (→ neutrality), the secularist principle does not appear as part
of the international treaties that relate to human rights or human dignity and it is not
undisputedly understood to be a condition of democracies either (Stepan 115–16). The
Office of the High Commissioner for Human Rights has expressed this view in its General
Comment No. 22 (1993), concluding that limitations to this right need to be grounded on
reasons of protection of human life, public safety, order, health, morals, or the fundamental
rights and freedoms of others (Bielefeldt et al 553–70). Secularism is mainly understood
well as a quality of public offices, well as a possible life choice that freedom of religion and
belief guarantees (Koenig 16) and/or as a shift from the nation-state order to a national
order where everyone has the same fundamental rights and freedoms.
56 International instruments have helped to shape the principle of political secularism by

connecting it with other human rights. For instance, religious freedom is called to be
integrated with human dignity, gender equality, and women’s rights, in the private and in
public life, as in Resolution 1743 (2010) and Recommendation 1927 (2010) of the
Parliamentary Assembly of the Council of Europe on Islam, Islamism, and Islamophobia in
Europe. While respecting women’s right to cover their faces, the European Council reflects
on the likely pressure that wearing head scarves would exert on them (ie confining them to
their homes and limiting their contact to other females). The Council points out the need for
legal restrictions on this freedom in a democratic society, be it for safety purposes or for
neutrality of public offices which require that public officials show religious neutrality while
serving at their post. Other general principles (human dignity, equality) also prevail over
the freedom of religious expressions.
57 The ECtHR has also contributed to define the principle of secularism and its application
in each member state. For instance, Ebrahimian v France (2015) upheld the decision of a
French hospital of not renewing the contract of employment of a social worker because of
her refusal to stop wearing the Muslim veil. Contrastingly, Hamidović v Bosnia and
Herzegovina (2017) dismissed the conviction of Mr Hamidović, witness in a criminal trial,
who had been fined and expelled from the national courtroom for refusing to remove his
skullcap bearing a religious symbol. The ECtHR pointed out that Mr Hamidović was a
private citizen and that a skullcap did not impede his identification nor violate the
requirement to remove headgear in public institutions. Lastly, Leyla Şahin v Turkey (2004),
brought by a medical student challenging the Turkish law, which bans wearing the Islamic
headscarf at universities and other educational and state institutions; she stated that the
prohibition forced students to choose between education and religion, discriminating
believers and non-believers. The Court upheld the Turkish law against Sahin by 16 votes to
1, acknowledging the fact that in Turkey the display of religious symbols has been quite
ambivalent since 1980, reaching strong political overtones.
58 The → International Court of Justice (ICJ) has also judged cases concerning the
application of the Convention on the Prevention and Punishment of the Crime of Genocide,
such as the judgment of Bosnia and Herzegovina v Serbia and Montenegro (2007), which
mentions discrimination on religious grounds as an element of criminal actions under court
scrutiny.
3. International and Constitutional Limits to Religious Freedom
59 Reasons of equality, → public interest, → public morals, public safety and order, → right
to health, right to life, → labour rights, gender discrimination, childrens’ rights, respect of
conscientious objection, and generally speaking, the need to respect others’ fundamental
rights, may always cause limitations or restrictions to the exercise of religious freedom
(Baubérot in Lindholm et al 444; Van der Vyver, in Durham et al 85). National and
international jurisprudence show the conflicts between religious freedom and other
fundamental rights. At national level, constitutions are the legal instruments used to
declare the official position of each state towards religion and religious actors (both
individual and collective). Accordingly, further developments in this matter are established
nation-wide via legislation or statutes, and jurisprudence, depicting a complex and unique
picture each time. Constitutional jurisprudence helps to solve particular conflicts, but also
offers opportunities for public debate about the possible and reasonable options which may
help to enhance the exercise of religious freedom in different contexts.
60 Application for asylum by religious → refugees provides an interesting insight into

religious policies in different countries, when it comes to people persecuted for their
religious beliefs. Canada and Australia are known for their restrictive migration policies,
although their approach to refugees fleeing religious discrimination has changed notably
through jurisprudential cases. Canadian jurisprudence includes Singh c Ministre de
l’Emploi et de l’Immigration (1985) (Can) a landmark judicial decision in which the
Supreme Court of Canada ruled that the legal rights of the Canadian Charter of Rights and
Freedoms apply to every person physically present in Canada, including foreign refugee
claimants. The Court also stated that refugees would be entitled from that moment onwards
to a full hearing of their claims before being received in the country or expelled.
61 In Australia, the Refugee Review Tribunal in Melbourne has also produced

jurisprudential doctrine around the topic. Australian authorities have accepted their duty to
help and welcome refugees of this kind if the asylum applicant is outside his or her country,
fears persecution, the persecution involves ‘serious harm’ to the applicant, and the
applicant’s fears fall into one or more of these categories (race, religion, nationality,
membership of a particular social group or political opinion) and lastly, the applicant’s fear
of persecution is ‘well-founded’ or has real chances of coming to pass. For instance, RRT
Case No. 1109939 (2012) (Austl) was amended to accept a formerly withdrawn Chinese
application, finding that it met the requirements of a refugee suffering religious persecution
in her native country.
E. Assessment and Final Views

1. Religious Diversity: The New Political Challenge
62 Religion has become a pluralistic experience that may easily pose risks, or offer
opportunities, to already existing anthropological and cultural models, social standards,
demographic trends, and social integration. Religious diversity is being intensely
experienced (in terms of speed, width, and depth), and societies need to respond to these
new challenges. On the other hand, religious radicalization seems to be the new face of
international terrorism and wars. The costs of failing to conciliate religious diversities are
socially deep, economically high, and culturally hard to overcome. Religion can be a
decisive instrument of cohesion and dialogue, or one of the most divisive elements in any
society (Iribarren in Choza et al 171; Ungureanu and Monti 290).
2. Religion, Culture, and Identity
63 It could also be added that the choice of states to be totally secular, lay, or neutral, has
been deemed somewhat impossible (Shenhav 168), undesirable (Ram 56), or simply
unfeasible (Kimmerling 362). Secondly, it seems to be a phenomenon pertaining to certain
Western countries, mainly those of Christian roots. Thirdly, it can be dangerous in the sense
that, historically speaking, the first political and cultural divisions in the ancient world
occurred in the context of diverse religions (Judaism, Islam, Christianity, Buddhism, and
Confucianism). Religions have contributed to forging the identity and cosmovisions of every
civilization. From a political viewpoint, the decision to confine a society’s religious roots
(religious and moral beliefs) to the privacy of conscience also serves to minimize reasons
and horizons and as a means to weaken the very basic coordinates that have been
sustaining the civilization and culture to which they relate. Religions are an element
integrated in the definition of the cultural, historical, and social identities. To forget
religious roots, to try to erase them from social and political life, might be the beginning of
the end for the current models of civilization.
3. Towards More Accommodating Constitutional Models

64 The relationship between religion, state, and society should not be idealized. Tensions,
abuses, and errors are part of its history and development. Additionally, religious pluralism
is the hallmark of contemporary societies. Religious pluralism was confronted in the past
with persecutions; slowly accommodated through religious tolerance; and finally accepted
with religious freedom. It is also true that religious diversity was experienced gradually,
whereas nowadays it is happening massively, and quickly. Societies need to get used to
sharing streets, jobs, public services, and even families, with a large number of people of
diverse ethnic and religious backgrounds. Democratic societies, by definition, seem to be
more capable of accommodating and integrating a diversity of world-views, including
religious ones. Religious freedom seems to catalyse the adequate response to new social
and political challenges. Constitutional systems need to work in order to provide
accommodation and relations of support of religious diversities.
65 Political leaders, judges, and legislators, in dialogue with religious institutions and
religious groups have the responsibility to settle overlapping issues, striving to better
guarantee equality, freedom, and peace, each time in their own places. The study,
adjustment, and implementation of religious freedom can positively contribute to a
successful outcome of the crisis that host societies are experiencing in terms of migration,
demography, and politics now and will do in the future (Anastasious in Durham et al 689;
Durham and Scharffs 67; Appleby 283).
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Relation of Religion to State and

Content type: Encyclopedia entries

2. Religion and Public Life: Past and Present

3. Present Challenges and Risks

8 Collisions of freedom of religion with freedom of expression, which is at the core of

10 Religious abuse (→ religious persecution) is another recurring problem. In Board of

B. Evolution of the Relationship between Religion and Politics

C. Comparative Constitutional Systems Reflecting Religion and

21 Globalization, international migrations, war conflicts, terrorism, and poverty concur

23 Each constitution recognizes its own state-religion relationship arbitrating its

32 Also inspired in the separationist approach, other constitutional patterns accept

33 However, according to the separationist approach, even allowing freedom of conscience

36 Denominational states generally involve the formal recognition of a particular religion

41 Public religious endorsement or mention of a particular religion is still present in some

4. Other Constitutional Models

47 Several other countries have established other accommodating views on religious

48 Italian constitutional jurisprudence has helped to contextualize the interpretation and

49 Finally, other countries have found an accommodating regime for religious

D. International Standards and Other Connected Rights

51 Religious belief appears in the main UN international conventions such as Article 2

2. International Connectedness: Religious Freedom and Secularism

56 International instruments have helped to shape the principle of political secularism by

60 Application for asylum by religious → refugees provides an interesting insight into

61 In Australia, the Refugee Review Tribunal in Melbourne has also produced

E. Assessment and Final Views

3. Towards More Accommodating Constitutional Models

Aguilar-Moreno, M, Handbook to Life in the Aztec World (Infobase Publishing 2006).

Bielefeldt, H, Ghanea, N, and Wiener, M, (eds) Freedom of Religion or Belief An

Binns, J, An Introduction to the Christian Orthodox Churches (CUP 2002).

Brugger, W, and Karayanni, M, (eds), Religion in the Public Sphere: A Comparative

Calhoun, C, Juergensmeyer, M, and Vanantwerpen, J, (eds), Rethinking Secularism

Choza, J, and de Garay, J, (eds), Estado, Derecho y Religión en Oriente y Occidente

Ferrari, S, (ed.) Routledge Handbook of Law and Religion (Routledge 2015).

Kimmerling, B, ‘Religion, Nationalism and Democracy in Israel’ (1999) 6.3

Longhena, M, Mexico Antiguo Historia y Cultura de Los Pueblos de Mesoamerica

Manent, P, Les Métamorphoses de la cité (Flammarion 2010).

Martínez-Torrón, J, Religion and Law in Spain (Kluwer 2018).

Orlandis Rovira, J, Europa y sus raíces cristianas (Rialp 2004).

Peterson, E, El monoteísmo como problema político (Minima Trotta 1999).

Portier, P, L’État et les religions en France Une sociologie historique de la laïcité

Ram, U, ‘Why Secularism Fails? Secular Nationalism and Religious Revivalism in

Reader, I, ‘Problematic Conceptions and Critical Developments: The Construction and

Reinmann, M, and Zimmermann, R, (eds), The Oxford Handbook of Comparative Law

Schmidt, B, and Engler, S, (eds), Handbook of Contemporary Religions in Brazil (Brill

Son, BN, Confucian Constitutionalism in East Asia (Routledge 2016).

Suarez, L, Isabel la Católica (ABC 2003).

Suarez, L, La expulsión de los judíos: Un problema europeo (Ariel 2012).

Taylor, C, A Secular Age (Harvard University Press 2007).

Ungureanu, C, and Monti, P, Contemporary Political Philosophy and Religion Between

Aum Shinrikyo Case (2004) (Japan).

Belgian Anthroposophic Society v the French Community of Belgium (2006) (Belg).

Belkacem v Belgium ECtHR Application No. 34367/14 (27 June 2017).

Bosnia and Herzegovina v Serbia and Montenegro (2007)

Brandenburg v Ohio 395 US 444 (1969) (US).

Case No. 0808669 [2009] RRTA 185 (Austl).

Case No. 1109939 [2012] RRTA 340 (Austl).

Decision No. 140/PUU-VII/2009 (19 April 2010) Constitutional Republic of Indonesia

Ebrahimian v France ECtHR Application No. 64846/11 (26 November 2015).

Grzelak v Poland ECtHR Application No. 7710/02 (15 June 2010).