Should Church or State Determine Who Teaches Religion?
In Spain, religious communities’ leadership determines who is allowed to teach children at religious schools about their faith. Mr. Fernández Martínez, a former (“laicized”) Catholic priest, was approved by the local bishop to teach Church beliefs for almost six years – but in 1997, the bishop declined to renew Fernández Martínez’s contract because he had publicly voiced his opposition to the Church’s position regarding priestly celibacy.
Fernández Martínez initiated a lawsuit, claiming his right to personal autonomy trumped the Church’s right to select teachers of the faith. The Constitutional Court of Spain rejected this argument. On appeal to the ECHR, the European Court’s Grand Chamber followed Becket’s amicus brief and recognized that churches must be free to decide who teaches their faith to the next generation without interference from the state. This decision was in line with decisions in earlier Becket cases Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Sindicatul “Pastorul cel Bun” v. Romania, demonstrating that religious autonomy is a truly global principle.
Importance to Religious Liberty:
- Religious Communities: Religious communities have the right to choose their own leaders, and to decide who teaches their faith without interference from the state. Issues of doctrine like priestly celibacy or church leadership and teaching are matters for the church to decide – not government agents.
Libertad para elegir profesores calificados
Incluso en países sin separación constitucional entre iglesia y Estado, las organizaciones religiosas tienen derecho a elegir a sus maestros. Al ser un país predominantemente católico, Chile ofrece clases de religión sobre la fe católica en muchas de sus escuelas gubernamentales, sin embargo, al ser materia de libertad religiosa y autonomía, el obispo católico local debe tener la capacidad de certificar quién está calificado para impartir esas clases.
Rompimiento con la Iglesia
Sandra Pavez fue profesora de religión durante mucho tiempo en una escuela gubernamental en San Bernardo, Chile. En 2007, la Sra. Pavez le informó a la Diócesis de San Bernardo que estaba en una relación con una persona del mismo sexo. Debido a que este hecho viola el derecho canónico católico, que es el cuerpo legislativo que rige a la Iglesia Católica, la Diócesis revocó la certificación de la Sra. Pavez para enseñar la fe católica en su escuela. Sin embargo, la escuela retuvo a la Sra. Pavez como maestra e inmediatamente la promovió a Inspectora General, que es un cargo de mayor prestigio.
A pesar de esta promoción, la Sra. Pavez demandó a la Diócesis ante los tribunales chilenos, que reconocieron correctamente que la Diócesis tenía autoridad para determinar quién estaba capacitado para enseñar su fe, y que la Sra. Pavez había sido promovida en lugar de perjudicada por esa decisión. El 28 de octubre de 2008, la Sra. Pavez presentó una queja ante la Comisión Interamericana de Derechos Humanos, alegando que Chile había violado su derecho a la “no injerencia arbitraria en la vida privada”, constatada en la Convención Americana sobre Derechos Humanos. La Comisión falló a favor de la Sra. Pavez el 7 de diciembre de 2018, y Chile apeló ante la Corte Interamericana de Derechos Humanos, que aceptó el caso el 11 de setiembre del 2019, y fijó el caso para audiencia pública el 12 de mayo de 2021 en San José, Costa Rica.
Autonomía religiosa en el país y en el extranjero
Becket está presentando un escrito amicus curiae ante la Corte Interamericana de Derechos Humanos, argumentando que los grupos religiosos deben ser libres de tomar decisiones sobre quién puede enseñar su fe a la siguiente generación de creyentes. El escrito de Becket cita el artículo 12 de la Convención Americana sobre Derechos Humanos, el artículo 18 de la Declaración Universal de Derechos Humanos y otros tratados líderes en materia de derechos humanos, todos los cuales incluyen un lenguaje robusto que protege la libertad religiosa de las personas y las comunidades. El escrito de Becket, con un enfoque comparativo, muestra cuántos países latinoamericanos y europeos, así como los Estados Unidos y Canadá, han reconocido el principio de autonomía religiosa y han protegido el derecho de las organizaciones religiosas a elegir a sus líderes y a sus maestros. Y Becket también señala que los países que violan la autonomía religiosa tienden igualmente a violar otros derechos humanos, especialmente los derechos de las personas LGBTQ+.
La acción de Becket en este caso forma parte de una serie de casos similares en los que Becket ha participado en todo el mundo, incluso en tribunales internacionales tales como el Tribunal Europeo de Derechos Humanos y en los tribunales de los Estados Unidos. En el caso de Fernández Martínez vs. España, Becket presentó un escrito amicus curiae argumentando que el principio de autonomía religiosa protegía el derecho de la Iglesia Católica a no renovar el contrato del profesor de religión que se había unido a una campaña pública oponiéndose a sus creencias. En 2014, el Tribunal Europeo adoptó este enfoque, defendiendo la libertad de la Iglesia de elegir quién está calificado para enseñar la fe. Y en el caso de Sindicatul “Pastorul cel bun” vs. Rumania, Becket presentó un escrito similar argumentando que las iglesias, sinagogas y otras organizaciones religiosas tienen derecho a ordenar sus asuntos internos sin interferencia del gobierno. En 2013, el Tribunal Europeo confirmó el derecho de autonomía religiosa de la Iglesia Ortodoxa Rumana sobre el derecho de los sacerdotes disidentes a crear un sindicato o unión gremial.
En 2012 y 2020, Becket ganó casos similares en la Corte Suprema de los Estados Unidos en la Hosanna-Tabor Evangelical Lutheran Church & School vs. EEOC y en Our Lady of Guadalupe vs. Morrissey-Berru, en los que la Corte dictaminó que las escuelas religiosas tienen derecho a seleccionar a los maestros que enseñan sus creencias.
Tanto en la Corte Europea de Derechos Humanos como en la Corte Interamericana de Derechos Humanos, Becket ha abogado por que la misma norma se aplique internacionalmente, de modo que ningún grupo religioso pierda su capacidad de elegir a sus líderes y maestros, un derecho ampliamente reconocido en el derecho internacional de los derechos humanos.
Relevancia para la libertad religiosa:
- Comunidades Religiosas — Los grupos religiosos deben estar plenamente facultados para seleccionar a sus sacerdotes, rabinos, ministros y otros maestros religiosos libres de interferencia gubernamental. La Corte Suprema ha reconocido este derecho en los Estados Unidos, pero es fundamental brindar esas mismas protecciones sólidas a la libertad religiosa a nivel internacional.
Freedom to choose qualified teachers
Even in countries without constitutional separation between church and state, religious organizations have the right to choose their teachers. As a predominantly Catholic country, Chile offers religion classes on the Catholic faith in many of its government schools, but as a matter of religious freedom and autonomy, the local Catholic bishop must be able to certify who is qualified to teach those classes.
Disunion with the Church
Sandra Pavez was a long-time religion teacher at a government school in San Bernardo, Chile. In 2007, Ms. Pavez told the Diocese of San Bernardo that she was in a same-sex relationship. Because this violated Catholic canon law, the governing body of laws of the Catholic Church, the Diocese revoked Ms. Pavez’s certification to teach the Catholic faith in her school. However, the school retained Ms. Pavez as a teacher and immediately promoted her to the more prestigious position of Inspector General.
Despite this promotion, Ms. Pavez sued the Diocese in the Chilean courts, which correctly recognized that the Diocese had authority to determine who was qualified to teach its faith, and that Ms. Pavez had been promoted rather than harmed by that decision. On October 28, 2008, Ms. Pavez filed a complaint with the Inter-American Commission on Human Rights, claiming that Chile had violated her right to “no arbitrary interference in private life,” found in the American Convention on Human Rights. The Commission ruled in favor of Ms. Pavez on December 7, 2018, and Chile appealed to the Inter-American Court of Human Rights, which accepted the case on September 11, 2019, and set the case for public hearing on May 12, 2021 in San José, Costa Rica.
Religious autonomy at home and abroad
Becket filed a friend-of-the-court brief at the Inter-American Court of Human Rights, arguing that religious groups must be free to make decisions about who may teach their faith to the next generation of believers. Becket’s brief cites Article 12 of the American Convention on Human Rights, Article 18 of the Universal Declaration of Human Rights, and other leading human rights treaties, which all include robust language protecting religious freedom for individuals and communities. Becket’s brief takes a comparative approach, demonstrating how many Latin American and European countries, as well as the United States and Canada, have recognized the principle of religious autonomy and protected the right of religious organizations to choose their leaders and teachers. And Becket also points out that countries that violate religious autonomy tend to violate other human rights as well, especially the rights of LGBTQ+ individuals.
On April 13, 2022, the Inter-American Court released its decision in favor of Ms. Pavez. The decision failed to grapple with the importance of religious autonomy, and it ignored the consensus of the international human rights community that religious groups have a right to decide who is qualified to teach their faith to the next generation without fear of government interference.
Becket’s action in this case is part of a series of similar cases Becket has participated in worldwide, including in international tribunals such as the European Court of Human Rights and in the United States courts. In the case of Fernández Martínez v. Spain, Becket filed an amicus brief arguing that the principle of religious autonomy protected the Catholic Church’s right to not renew the contract of religion teacher who had joined a public campaign opposing their beliefs. In 2014, the European Court adopted this approach, upholding the Church’s freedom to choose who is qualified to teach the faith. And in the case of Sindicatul “Pastorul cel bun” v. Romania, Becket filed a similar brief arguing that churches, synagogues, and other religious organizations have a right to order their internal affairs without government interference. In 2013, the European Court upheld the Romanian Orthodox Church’s right of religious autonomy over the right of dissident priests to create a trade union.
In 2012 and 2020, Becket won similar cases at the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe v. Morrissey-Berru, in which the Court ruled that religious schools have the right to select teachers of their faiths.
At both the European Court of Human Rights and the Inter-American Court of Human Rights, Becket has advocated for the same standard to apply internationally, so that no religious group will lose their ability to choose their leaders and teachers, a right which is broadly recognized in international human rights law.
Importance to Religious Liberty:
- Religious Communities— Religious groups should be fully empowered to select their priests, rabbis, ministers and other religious teachers free from government interference. The Supreme Court has acknowledged this right in the United States, but the same robust protections are fundamental to religious freedom internationally.
Pacific Lutheran University is a private university in Tacoma, Washington offering undergraduate and graduate studies in a liberal arts environment. It is committed to “diversity, justice, and sustainability,” and at the same time, fosters a proud Lutheran tradition.
But Pacific Lutheran had to fight to maintain autonomy as a religious university. In 2013, the Service Employees International Union (SEIU) tried to unionize non-tenured professors at the University, even though until then religious universities had been exempt from unionization in order to preserve church-state separation. SEIU claimed that Pacific Lutheran was not “sufficiently religious” to qualify for the exemption and therefore was subject to labor laws enforced by the National Labor Relations Board (NLRB).
Represented by Gordon Thomas Honeywell LLP, Pacific Lutheran appealed an initial regulatory decision against it to the NLRB, emphasizing its status as a religious university, and that as a religious university it is up to Pacific Lutheran to make decisions about employees’ status based on its religious mission. Otherwise Pacific Lutheran risked losing its independent authority to guide practices for its adjunct professors, which is crucial to promoting faith-based values. In a religious university like Pacific Lutheran, teachers are expected to reflect their institution’s faith, and the law must reflect — and protect — that reality.
Becket filed a friend-of-the-court brief in support of Pacific Lutheran arguing that the First Amendment principle of church autonomy as recognized in cases like Becket’s Supreme Court case Hosanna-Tabor meant that the NLRB could not oversee unionization contests within religious universities.
Despite these arguments, the NLRB ruled against Pacific Lutheran saying that adjunct professors do not overtly perform a religious function and therefore fall under NLRB jurisdiction. The decision also claimed that an institution must prove its religious affiliation, and the religious roles played by employees, before asserting the exemption. This decision was tantamount to a complete reversal of the Board’s former policy, which provided broad latitude to churches and other religious employers.
After the NLRB issued its decision—which is binding nationwide—SEIU withdrew its unionization petition, meaning that the NLRB’s change in policy narrowing the religious exemption could not be tested in a higher court. Since then, unionization efforts have begun at a number of religious (primarily Catholic) universities across the country.
Targeted for her religious beliefs
Religious liberty and LGBT rights don’t have to be in conflict. No one knows that better than Gayle Myrick.
Gayle Myrick was a well-respected magistrate in North Carolina for many years. As a magistrate she issued warrants, set bail, handled traffic fines, and—on rare occasions—performed wedding ceremonies.
Gayle loved helping others and treating everyone fairly. She always received top performance reviews and positive feedback. When same-sex marriage became legal, Gayle didn’t want to stop anyone from getting married. But she also knew that her religious beliefs prevented her from performing a same-sex wedding ceremony.
A commonsense solution
Since handling weddings was such a small portion of her work, Gayle’s immediate supervisor proposed a solution—simply shift Gayle’s schedule by a couple hours so that she was not on duty when the county offered weddings. The government frequently offered similar scheduling accommodations to other magistrates for a variety of reasons, from simple things like going fishing to larger issues like night classes or even drug rehab.
This was a reasonable solution: Every couple would still get married without any delay or embarrassment, and Gayle would get to keep her job.
Unfortunately, the state government rejected this solution and made clear Gayle had to choose: her faith or her job. Gayle was forced to resign, which meant she lost her retirement and the job she loved.
Becket defends dignity in our diverse society
With the help of Becket and North Carolina attorney Ellis Boyle, Gayle filed a claim of religious discrimination with the Equal Employment Opportunity Commission (EEOC) under a federal civil rights law that protects government workers. In March 2017, a federal judge said in a landmark ruling that the government broke the law when it refused to let Gayle shift her schedule, especially since other magistrates were allowed to shift their schedules all the time. The government also acknowledged it had treated Gayle unfairly, and in January 2018, agreed to pay a substantial amount to make her whole and give back the pay and retirement benefits that were unjustly taken from her. The state later passed a law making sure no magistrates would be targeted for their religious beliefs and no one would be denied a prompt marriage.
Faith and sexual orientation are deeply important to the identity of many people, and this case shows that these two things don’t have to be at odds with each other. From a Jewish worker’s need to keep the Sabbath, to a Muslim employee’s need to engage in daily prayer, there are thousands of examples of reasonable solutions in the workplace that protect the dignity of everyone. Our civil rights laws help us create a society where people with diverse views can live alongside each other without conflict.
Importance to religious liberty:
- Individual freedom: The government cannot force religious individuals to violate their deeply held beliefs to further a government goal when there are other ways for the government to accomplish that goal, and when the government already accommodates exemptions for secular reasons.
For 40 years, a group of Christian students have been gathering at Cal State Stanislaus in California’s Central Valley. They call themselves Chi Alpha (Greek letters standing for “Christ’s Ambassadors”) and they were long a recognized part of student life. All that changed this fall when the university yanked their charter and locked them out of their meeting space.
Chi Alpha’s sin? Asking their student religious leaders—who lead worship and Bible study—to share Christian beliefs. Cal State accused Chi Alpha of “religious discrimination” and told the students that, after 40 years, their Christian group was not welcome on campus.
Chi Alpha exists to help college students live out their faith in worship, prayer, and service.
The Chi Alpha group at Cal State Stanislaus is a chapter of Chi Alpha National, the student arm of the Assemblies of God, one of the ten largest churches in the U.S. Chi Alpha was founded in 1953 as a place where college students could learn about Christianity and live out their faith together.
Today, more than 28,000 students gather in Chi Alpha groups across the country. They gather to worship God, study the Bible, pray, and to give back through programs like feedONE, which provides food for over 140,000 hungry children worldwide. Their Christian faith is what unites them and motivates them to serve. And while Chi Alpha membership is open to any student, Chi Alpha asks that the students that lead its worship services and teach its Bible studies actually believe its Christian message.
Cal State’s selective “all-comers” policy
Believe what you teach – most places, that’s called integrity. But not at Cal State.
California State University (Cal State) is the largest public university system in the nation. Chi Alpha has been a recognized part of the Cal State community for over 40 years. That changed this fall, when Cal State Stanislaus told Chi Alpha students that they were guilty of “religious discrimination” for asking that their student religious leaders be Christian.
Within twenty-four hours of being branded as “discriminators,” Chi Alpha’s students found themselves locked out of their reserved meeting space and shut out of the other parts of campus life open to all other student groups.
Today at Cal State, the Feminist Majority Leadership Alliance can (and should be allowed to) require its leaders to be feminists. The Young Democrats can (and should be allowed to) require their president to be a Democrat. And frats can require their leaders to be men. But neither Chi Alpha—nor any other religious group—can require its leaders to believe in the message the group exists to teach.
If a religious student group stands its ground, Cal State will brand it a “religious discriminator,” pull its charter, and shut it out of the campus community of recognized student groups. Because these consequences are so severe, many of the students leading these groups feel they have no option but to give in.
Chi Alpha fights back
On March 17, 2015, Chi Alpha wrote a letter to Cal State insisting that the Chi Alpha group at Cal State Stanislaus be reinstated immediately. Religious students shouldn’t be branded “discriminators” and have their groups excluded from the campus community for asking their leaders to have integrity.
After over a year of having various chapters kept off campus, Chi Alpha was finally reinstated at all campuses within the California State University system on November 19, 2015. The decision affirmed Chi Alpha’s right to choose leaders who lived by their standards and their Christian faith.
The stakes could not be higher for European churches. Sindicatul v. Romania concerns a group of priests of the Romanian Orthodox Church who sought to form a trade union against the wishes of their ecclesiastical leaders.
The Romanian courts and the Romanian government found that the establishment of such a “rogue” union would violate the church’s religious freedom, in that it would permit the government to meddle in the employment decisions of a church. However, the priests appealed to the European Court of Human Rights (ECHR), and a small panel ruled that the priests’ right to unionize trumped the church’s religious liberty. The Romanian government appealed to the ECHR’s Grand Chamber, which is the highest panel within the European human rights system.
Becket and other civil society groups publicly urged the Grand Chamber to take up the case and undo the smaller panel decision. To that end, Becket published an article in a Romanian law review, Revista de Drept Social, and presented remarks regarding the case at the Council of Europe in June 2012.
A month later, the Grand Chamber of the ECHR decided to take the case. The Grand Chamber then permitted Becket to file a third-party brief, along with the International Center for Law and Religion Studies, headed by BYU law professor Cole Durham, and Stanford Law School professor Michael McConnell. The brief argued that churches, synagogues and other religious organizations have a right to order their internal affairs without government interference.
In July 2013, the ECHR made its groundbreaking 11-6 decision affecting the rights of religious groups in Europe. The Grand Chamber ruled that the Romanian Orthodox Church’s right of religious autonomy trumped the right of dissident Romanian Orthodox priests to create a trade union.
Why is it important for churches to have autonomy in managing the ministers who communicate their faith? Becket’s brief provides a simple answer to this question: Just as the conscience of a person – how he or she decides what to believe – is absolutely protected from government interference, so are the processes by which a church decides what it believes, namely, its ability to order its relationships with employees who teach and communicate the faith. Therefore, government officials should not have power to invade the interior life of the church by imposing outside decisions on the church. This non-interference principle is essential in any pluralistic, democratic society — especially as Europe and America become increasingly religiously diverse.
Notably, Becket argued a similar church autonomy case, Hosanna Tabor v. EEOC, in front of the U.S. Supreme Court in 2011. The Court unanimously decided in favor of religious freedom, ruling that religious organizations have special rights when it comes to hiring people who communicate their doctrine and minister to their congregants.
We filed an amicus brief in favor of New Zealand’s Jewish community, arguing that New Zealand’s ban on kosher slaughter of chicken violated New Zealand’s international legal commitments.
As cited in Becket’s brief, “The Code infringes on the right of New Zealand’s Jews to manifest their religious beliefs because it makes it impossible for them to eat meat on the Sabbath and certain holidays.” Becket’s brief pointed out that the ban on kosher slaughter violated New Zealand’s international human rights treaty obligations and that it put New Zealand in a class with the anti-Semitic governments of 1930s Europe that passed almost identical bans.
Becket also explained that many democratic governments, including the United States government, have determined that kosher slaughter is entirely humane for the slaughtered animal.
Shortly after Becket filed its brief, the New Zealand government agreed to revoke the law.
For more than 50 years, the Internal Revenue Service (IRS) has used an extremely broad interpretation of the tax code to censor and intimidate religious leaders of every faith. In short, they occasionally come out of the shadows and threaten a house of worship with losing its religious tax exemption if its religious leaders speak too openly about political issues. Such threats often coincide with heated political races where moral issues are of high importance. And the IRS is often put up to it by hyperseparationist groups like Americans United for Separation of Church and State.
So Becket decided to take the challenge right back to the IRS.
On January 16, 2008, Becket publicly dared the IRS to investigate the Calvary Assembly of God in Algoma, Wisconsin, after its pastor, Kenneth Taylor, used his pulpit to preach about the moral implications of a number of different campaigns going on at the time. We made sure the IRS wouldn’t miss the challenge and printed it as an open letter in Wall Street Journal, knowing that if they pressed forward with the threat, the public would be outraged, and if they backed away, they would essentially concede that you cannot muzzle religious speech in the name of the tax code.
Pastor Taylor has yet to hear from the IRS. Paper tiger?
In August 2007, the Vermont Department of Corrections proposed a measure that would impose lengthy new regulations on religious practices. Becket stood up against the proposed Directive 380.01, warning Vermont that the proposed regulations might violate the constitutional rights of inmates under federal statutes and the First Amendment.
Among other things, the proposed Directive required mandatory registration of an inmate’s religious identity, an imposed one-year waiting period before changing religious affiliation, and prohibition of attendance to interfaith religious services without first applying for a permit. It also denied inmates the right to lead religious services—even if they are ordained clergy—and prohibit inmates from “demonstrative prayer” and prayer with others.
Not long after receiving Becket’s letter, the head of the Vermont Department of Corrections called Becket’s attorneys and told them he would change the proposed rules to accommodate religious exercise: A win for religious freedom in the Green Mountain State.
Tommy DeForest was a Sikh high school student in Alabama who wanted to wear a patka, the headcovering required by the Sikh faith. Good Hope High School barred him from attending school with his patka, citing its “no hats” policy. Becket sent a letter to the superintendent and argued that forcing a student to chose between his religious convictions and receiving a public education violates the right to free exercise of religion. We pointed to the Alabama Religious Freedom Amendment to Alabama’s constitution, which says that the “[g]overnment shall not burden a person’s freedom of religion even if the burden results from a rule of general applicability.” While the reasoning behind a no hats policy in public schools may be fine, it should not restrict the religious freedom of students, be they Jewish, Sikh, or something else. The school backed down, and Tommy was able to return to school and continue practicing his faith.
“In France, the idea of “school uniform” has been turned into “school uniformity,” much to the detriment of religious minorities.
On September 2, 2004, France’s loi sur laïcité (law on secularism) took effect, banning religious attire in all state schools. This law reads:
Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit.
In public [primary and secondary schools], the wearing of symbols or clothing through which the pupils ostensibly manifest a religious appearance is prohibited.
The ban on all symbols or clothing that create a “religious appearance” means that students cannot wear yarmulkes, large crucifixes, Sikh turbans, or of course Islamic headscarves, the actual target of the legislation. The word “ostensibly,” however, allows pupils to continue the traditional French practice of wearing small Christian crucifixes.
Since the law came into effect, at least 639 problematic cases have arisen. Of these, 550 have been “resolved,” as the Education Ministry puts it, in most cases by female Muslim pupils ultimately agreeing not to wear bandanas or Islamic headscarves while in school.
But not all students acquiesce to checking their religion at the door. At least 48 children have been expelled from school, mostly Muslim girls who have refused to take off their headscarves, along with 3 Sikh boys who refused to remove their turbans.
As is typical for this sort of law, the enforcement has had far wider scope than the actual text of the law demands. Many schools and teachers who misunderstand the scope of the “secularism law” have prohibited teachers who are members of the clergy from wearing religious garb such as cassocks that they have worn for centuries. One school initially banned a Christmas tree (though it is unclear how pupils might wear it), until it decided that the tree was a pagan rather than a Christian symbol.
Perhaps the worst example of the law’s chilling effects on speech came when teachers at a school in northern France returned 1300 boxes of St. Nicholas Day chocolates to the mayor of the town who had, in accordance with long tradition, sent them to the pupils. The reason? The chocolates’ foil wrappers had tiny crosses on them.
The secularism law strikes at the heart of public religious expression because it does not allow students to identify themselves as believers in a certain faith. Because many students are required by their religion to identify themselves through symbols or clothing, the prohibition forces them to violate their most closely held beliefs. Moreover, by banning religious speech while allowing similar non-religious speech (for example, students are still able to wear clothing that reflects their political beliefs), the state has determined that religious speech is inferior to all other speech. The law also discriminates against religious believers and religious speech because it allows non-believers to wear bandanas or beards, while forbidding religious pupils from doing the same things.
The secularism law clearly violates France’s obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. Both of these international covenants protect the right of every human being to “manifest [his or her] religion or belief” “in public or private”–something the secularism law explicitly forbids.
The Becket Fund collaborated with the Sikh human rights group United Sikhs and European human rights lawyers in advising the three French Sikh boys who have been expelled from school for wearing the turban their religion requires. In December 2007, France’s highest court, the Conseil d’Etat, ruled that the ban on Sikh turbans in French schools was legal because it was not “excessive” and because the ban promoted secularism. In 2009, the European Court of Human Rights upheld France’s decision in the case of Jasvir Singh and Ranjit Singh.
Congregation Kol Shofar is a Conservative Jewish synagogue in Tiburon, California, just north of San Francisco. In 2006, the Tiburon Planning Commission denied the synagogue’s plan to make much-needed improvements to its existing sanctuary, despite the Congregation’s stated willingness to accept reasonable conditions.
That’s when the synagogue turned to the Becket Fund. In a series of legal opinion letters to Tiburon’s elected officials, the Becket Fund warned that the denial of building permits violated both state and federal law.
The Becket Fund noted that denying Kol Shofar the ability to make improvements to its facilities resulted in a substantial burden on the Congregation’s religious activities. Space constraints would force synagogue services—particularly on Rosh Hashanah and Yom Kippur—to be held at times incompatible with Jewish ceremonial requirements, and limited the synagogue’s ability to host community religious events. The Becket Fund further observed that Kol Shofar was the only Jewish congregation in Tiburon, and that churches in the area had been permitted to expand their facilities without bureaucratic obstruction. The town had previously claimed that permitting Kol Shofar to build would result in “incompatibility” with the surrounding neighborhood: a textbook example of unconstitutional viewpoint discrimination.
As a result, Tiburon compromised and allowed Kol Shofar to expand its sanctuary, allowing the Jewish congregation to practice their faith in peace.
“I am writing to express our synagogue’s profound appreciation for the critically important work of The Becket Fund. It was a delight and an honor to work with you. We are grateful that you agreed to take us on as a client – we fearlessly predicted we would add to the mettle of the Becket Fund!” — Kol Shofar Congregation
*Photo of Kol Shofar synagogue. Photo credit: Michael Loeb Photography. Used by Permission.
Danielle and Alexandra Darling are students in the Bakersfield City School District and observant Episcopalians. In March 2006, their mother Nona Darling followed school policy and contacted her daughters’ school to be excused at noontime in order to attend Ash Wednesday services. Following their beliefs, the Darling sisters fasted in the morning and planned to break their fast at the noon Ash Wednesday service at their church.
Instead of being allowed to miss part of the day like one would typically be excused for a dentist appointment or sick day, the school refused to grant the Darlings an excused absence and punished them for observing this important religious holiday. The school even went so far as to treat the siblings as if they were skipping school or did something illicit—even sending them a truancy letter.
The school district conveyed a message to the Darlings, and the other students, that it is wrong to honor their God according to their beliefs. This was unacceptable and unconstitutional, as students of faith should not be punished for adhering to their faith by attending church on important religious holidays.
After Becket stepped in on behalf of the Darling family, the school district backed down and not only excused Danielle and Alexandra, but also rewrote their existing excused absence policy to accommodate students of faith.
The city of Sand Springs, Oklahoma needed a new property to build a new commercial development complex, and it had eyes on the Centennial Baptist Church property. The city offered to purchase Church property and had indicated that it would invoke eminent domain to seize it if necessary. The church officially rejected the offer, refusing to leave the home that its small, but vibrant African-American congregation had worshiped in for decades.
In March 2006, Becket sent a letter to the City of Sand Springs, Oklahoma on behalf of Centennial Baptist Church, demanding that the city immediately end further attempts to seize the church’s property in violation of the Constitution.
“To put it simply,” the letter stated, “the church property is not for sale, and any attempt by the City to seize the Church’s property through eminent domain will be challenged by immediate legal action.”
The letter further cautioned the city that “the Church’s right to engage in religious exercise on its property, free from government burden and interference, is fully protected by the First and Fourteenth Amendments of the United States Constitution, the Oklahoma Religious Freedom Act, and the Religious Land Use and Institutionalized Persons Act of 2000.”
Rather than face Becket in court, the city immediately dropped its plans to use eminent domain to seize the property, and the people of Centennial Baptist Church were able to continue worshiping in their house of worship as they had for decades.
Schoolchildren should never be forced to choose between respectfully practicing their religion and obeying the law. Yet in 2005, that was the dilemma that confronted a group of Muslim high school students in Richardson, Texas, who were threatened with expulsion for saying their midday prayers.
At the beginning of the school year, several Muslim students approached administrators to make sure they would be able to continue their daily midday prayers, as they had been allowed to do in the past. School administrators granted such permission, and arranged for them to use an empty lecture hall for the prayer. For two weeks, the students prayed peacefully for three minutes each day, causing no disruptions or inconveniences. Two teachers noticed and complained, and several days later two assistant principals and a police officer confronted the students when they went to pray. The students were told that school policy prohibited them from praying anywhere on campus.
A few days after that, the school slightly modified its ban. Under the new policy, some observant Muslim students would be forced to choose between eating lunch or praying during the lunch period. The daily prayer only lasts three minutes, and the lunch period is half an hour – yet if a student chose to pray, he or she would not be allowed to eat lunch and would be forced to go hungry for the day. Other observant students were still not permitted to pray within the time frame set by their faith because of their assigned lunch period.
Becket intervened on behalf of the students, and Richardson Independent School District eventually revised its policy to allow students of all faiths to pray on school grounds, resulting in a victory for all students of faith in that district.
In some parts of the world, leading a peaceful religious discussion may come at a frighteningly high cost. Pastors Daniel Scot and Danny Nalliah learned that Australia was one of those parts of the world after facing the threat of jail time for their involvement in seminars and publications about Islam from a Christian perspective.
And what exactly was their crime? The pastors had explained their interpretation of the basic tenets of Islam, how Christians could dialogue with Muslims, and particularly taught that while they did not agree with or believe to be true the teachings of Islam, Christians are called to love, and not hate, Muslims. Yet they were convicted of doing just the opposite: a court concluded that they were “inciting hatred” with their “unreasonable” and “unbalanced” teachings.
The ensuing ordeal was the result of a bill that had good intentions but disastrous effects. In 2001 the Australian province of Victoria passed the Racial and Religious Tolerance Act (“Act”), which prohibits conduct that incites hatred, serious contempt, revulsion or severe ridicule of a person or group of people based on religious belief. However, instead of protecting religion and public harmony, the Act as applied has created social division and the censorship of sincerely held religious beliefs by force of law. Neighbor spies upon neighbor looking for offense in one another’s speech.
On December 17, 2004, the Victorian Civil and Administrative Tribunal determined that Pastors Scot and Nalliah violated the Act. The Tribunal not only found the pastors in breach of the Act but also ordered the pastors publicly to apologize for their sincerely-held beliefs and promise never to repeat those beliefs.
These actions were in direct violation of international law. Australia is obliged by international conventions to protect rights of conscience, freedom of expression, and equal protection under the law as Australia has ratified the Universal Declaration of Human Rights (UDHR) and its enforcement mechanism, the International Covenant on Civil and Political Rights (ICCPR). The free speech, belief, and religious exercise provisions of Articles 18, 19, and 26 in the ICCPR protect the right freely to preach about and analyze religious truth-claims of competing religions.
Contrary to these laws, the Act empowers the secular government to censor religious expression based on its own determination of the correctness of a believer’s religious views. In other words, the Victorian courts have become sermon review boards; serving as the arbiters of orthodoxy by determining the boundaries of “valid” religious belief for each faith community.
From April to August 2005, the Becket Fund, joined by a diverse coalition of organizations, exchanged letters with the Attorney General of Australia, urging the government to intervene before the Tribunal issued penalties that would jeopardize Australia’s laudable human rights record and commitment to international law.
On August 14, Australian attorneys, with the assistance of The Becket Fund on international law arguments, submitted appeals papers to the Supreme Court of Victoria at Melbourne. The Court upheld the appeal and ruled in favor of Daniel Scot and Danny Nalliah, vacating the original ruling and ordering the trial to be heard again in front of a different judge. Pastors Scot and Nalliah no longer face the threat of jail, and are free to preach as they see fit–without apologizing.
In the summer of 2003, Pastor Ake Green preached a sermon to his congregation about marital conduct based on his interpretation of the Bible. The sermon was later printed in a local newspaper, and soon after, Green was prosecuted for violating Sweden’s hate speech law. He was convicted and sentenced to one month in prison, and he appealed.
In January 2005, Becket filed an amicus brief with the intermediate court of appeals in Sweden to remind the court of its international treaty obligations under Articles 18, 19, and 26 of the International Covenant on Civil and Political Rights (ICCPR), which protect Green’s right to religious exercise, religious expression, and equal protection of the laws, respectively. Sweden is a signatory to the ICCPR.
In February 2005, the court of appeals overturned Green’s conviction under domestic law, citing free speech considerations. The prosecutor requested an appeal to the Supreme Court of Sweden and that request was granted.
Becket then filed a second amicus brief in this case, before the Supreme Court of Sweden, calling for the Court to affirm the reversal Green’s conviction. The Court unanimously overturned his conviction.
Green was represented by Percy Bratt, a Swedish human rights lawyer.
Amandeep Singh, a ninth-grade honor student in New York, was reprimanded and suspended indefinitely for wearing a kirpan—a ceremonial religious item worn by members of the Sikh faith—to school.
Meet Amandeep Singh, a high school honor student and a faithful Sikh
Amandeep Singh became a baptized Sikh at age eight, requiring him, like 20 million other Sikhs worldwide, to follow the five Sikh articles of faith. The best known of these is the requirement to wear hair uncut in a turban. Another lesser known requirement is to wear a kirpan, an item shaped like a sword that reminds Sikhs of their duty to speak out against injustice and stand up for the defenseless. In deference to school security concerns, school-age children like Amandeep typically wear a very small, blunt kirpan that is completely harmless.
For over seven years, Amandeep attended local public schools and continuously observed all five articles of his faith, including the wearing of the kirpan, without any incident. Many of his teachers were aware of his kirpan and specifically commended him for his dedication to his faith. None ever told him that his kirpan–which was duller than a butter knife and secured underneath his clothes–posed any sort of danger.
School officials ban a Sikh article of faith
Without explanation, school officials suddenly reversed course in February 2005 and declared Amandeep’s kirpan to be a prohibited “weapon.” Moreover, they refused to allow him to set foot on school grounds unless he abandoned his article of faith.
Becket intervened on Amandeep’s behalf, meeting with school district officials to explain the kirpan’s religious significance and Amandeep’s rights under the First Amendment. The district quickly changed course, agreeing to allow Amandeep to continue his education without compromising his faith.
This was a victory not only for Amandeep and other Sikhs, but also for students of all faiths to freely exercise religion in public schools.
This is a case about church autonomy – the right of religious groups to organize themselves as they see fit. This right includes the right of houses of worship to choose their leaders without government interference.
During the Soviet Union, the oldest Mosque in Baku, the capital of Azerbaijan – called the Juma Mosque—was turned into a carpet museum. Most other mosques were torn down.
In 1991, right after Azerbaijan had gained its independence from the Soviet Union, then-President Elchibey decreed that all former mosques, churches, and other houses of worship should be restored to their original, religious functions. A group of Muslim believers began worshipping in the Juma Mosque at that time and registered themselves as a “religious organization” under the law, once with the Baku city government, and once with the Ministry of Justice. Then, for 10 years, the members of the Juma Mosque Congregation were allowed to worship in peace.
However, in 2001, a new more authoritarian government began asserting control over the mosque, attempting to install its own imam (preaching minister) instead of the one that already led the mosque, democracy and human rights activist Ilgar Allahverdiev. The mosque congregation rejected the government’s demand that it submit to control by the Caucasus Muslims Board, an organization once headed by Joseph Stalin.
The mosque successfully resisted until 2004, when the government sent troops into the mosque during prayer services and forcibly removed everyone. The mosque was then surrounded by a fence and “closed for repairs.”
After suing for relief in the government-controlled Azerbaijan courts and finding no success, in 2004 the mosque asked Becket to represent it in an appeal to the European Court of Human Rights in Strasbourg.
The Juma Mosque Congregation case represents an important church autonomy case for all religious groups and all of Europe. If the government can force a mosque or a church or a rabbi to accept a government-appointed minister, then the mosque has become a prisoner of the state. The European Court of Human Rights should vindicate this important, and basic principle of human rights.
The story of Lina Joy is a poignant illustration of what happens when the government rejects the notion that individual conviction and choice have a role in religious belief.
Lina Joy was born into an ethnic Malay, Muslim family but was led by conscience to convert to Catholicism in 1990. In 1998, she was baptized and married a Catholic man.
Just one thing stood in the way of getting her marriage license: religion. The Civil Marriage provision of the 1976 Law Reform Act prohibits Muslims from solemnizing or registering marriage under civil law. Despite her affirmative declaration that she was a Christian, she was denied a civil marriage registration because her identity card designated her as Muslim. The designation could not be removed until Lina Joy obtained an order from the Sharia court stating that she had become an apostate – legally labeling herself as someone who defies God.
Lina Joy took the matter to the civil courts, but to no avail. Her application was dismissed, partly on the grounds that Malays cannot renounce Islam, because the Malaysian Constitution defines ethnic Malays as Muslim by birth. The civil court affirmed she must first go to the Sharia court.
She refused, arguing that it is not the place of any court to legitimize the convictions of her conscience.
In 2007, despite several appeals in the civil courts with the Becket Fund providing legal counsel, the Federal Court of Malaysia ultimately refused to recognize Lina Joy’s conversion from Islam to Christianity. As a consequence, her marriage is considered invalid by the state.
She was forced into hiding, afraid to start a family, because any children she had would be considered Muslim by the state and could on those grounds be taken away from her Christian mother. Given that the state would view her marriage as invalid, children could also be treated as “evidence of adultery.”
The Malaysian government’s refusal to recognize Lina Joy’s conversion is in direct violation of international law. Freedom of conscience is protected in both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The refusal to grant her an identity card that recognizes her conversion or to grant her a civil marriage license on the basis of her religioun are violations of equal treatment clauses of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), an United Nations treaty which Malaysia is legally bound to implement by the Vienna Convention on the Law of Treaties. The lower courts’ refusal of jurisdiction over this case further constitutes a departure from the general principle that administrative law is governed by fundamental constitutional
protections in well-functioning constitutional democracies.
At the Cobb County Adult Detention Center, officials singled out the Roman Catholic faith, prohibiting a priest from conducting mass while allowing Protestants to practice their religion freely.
Because weekly Mass is an critical element of the Catholic faith, Rev. John Welch offered to lead a weekly Mass for the prison’s two dozen Catholic inmates, at no cost to the State. Disturbingly, the state-paid chaplain of the prison prohibited Welch from leading Mass at the prison, based on his expressed dislike for Catholics and his belief that Catholics are not Christians.
While the chaplain allowed Welch to lead a non-denominational Christian religious service once or twice a month, he mandated that this service cannot contain those elements of the ceremony that make it a Catholic Mass. Rev. Welch had also been prevented from holding a Bible Study at the prison.
By allowing these unconstitutional roadblocks to Reverend Welch’s volunteer service, the state’s discriminatory action forced Catholic prisoners to violate the dictates of their faith by failing to attend weekly Mass. Recognizing this problem, Becket intervened on behalf of Welch and the Catholic inmates, and secured an out-of-court victory for the free exercise of religion at the detention center.