Washington, D.C.— The Grand Chamber of the European Court of Human Rights (ECHR), Europe’s final arbiter of human rights disputes, decided 9-8 today that the autonomy rights of religious institutions—here, the Catholic Church—trump the rights of religion teachers to mount a public attack on church teachings.In the case of Fernández Martínez v. Spain, the Grand Chamber found that a Catholic bishop in Spain could decide not to renew the contract of a teacher of Catholic religion who had joined a public campaign to oppose the Catholic Church’s practice of celibacy for priests. The Grand Chamber held that “the proximity between the [teacher]’s activity and the Church’s proclamatory mission” “is clearly very close.” That meant he “was voluntarily part of the circle of individuals who were bound, for reasons of credibility, by a duty of loyalty towards the Catholic Church” and he could have his contract not renewed because he failed to live up to that duty.
“If government can dictate who teaches a particular religion, then government can dictate what the content of that religion is,” said Eric Rassbach, deputy general counsel at Becket and expert consultant to third-party interveners in this case. “Today the Grand Chamber recognized that for churches to be truly autonomous they must be able to require their teachers to show loyalty to church beliefs.”
Rassbach assisted with a third-party brief submitted by Stanford Law School Professor Michael McConnell. The origins of this dispute concern the termination of a state high school religion instructor’s teaching contract. In Spain, teachers who teach a particular religious community’s beliefs to schoolchildren serve at the discretion that the community’s spiritual leadership to ensure parents and students are receiving instruction from those who share their convictions. Mr. Fernández Martínez, a former priest in the Roman Catholic Church, taught official Church doctrine for nearly six years with the local bishop’s approval. In 1997, the bishop declined to renew Mr. Fernández Martínez’s contract because he publicly opposed the Church’s position on priestly celibacy. Mr. Fernández Martínez appealed to a local employment tribunal asserting that expulsion for publically sharing personal views violated his right to autonomy in his personal life, since he himself was a former priest who decided to reject personal celibacy. Spain’s Constitutional Court, the ECHR’s Third Section, and now the Grand Chamber all rejected his claim. In a remarkable dissent from the Court’s decision today, the ECHR judge appointed by the government of Russia, Dmitry Dedov, directly attacked the Catholic Church and its practice of priestly celibacy, calling the practice “totalitarianism” and adding his opinion that “the celibacy rule contradicts the idea of fundamental human rights and freedoms.”
“Whether Catholic priests should be celibate or not is something for the Catholic Church to decide, not government officials, and not judges,” said Rassbach. “Judge Dedov’s chilling dissent shows just how high the stakes are here. The dissent should be condemned by all friends of human rights as a call to gross government interference with religious practice that ought to belong to Europe’s past.”
The ECHR’s protection of church autonomy parallels the successful outcome of a similar Becket case, Hosanna-Tabor v. EEOC. In 2012, the Supreme Court of the United States unanimously ruled that government cannot interfere with religious organizations’ ability to select people who communicate their mission, vision, and doctrine. Today’s decision also builds on another Becket case at the ECHR, Sindicatul “Pastorul cel bun” v. Romania, which protected the right of the Romanian Orthodox Church to autonomy in how it governed relationships between bishops and priests.
Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 19 years its attorneys have been recognized as experts in the field of church-state law. Becket recently won a 9-0 Supreme Court victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea, firstname.lastname@example.org, 202.349.7210.
By Asma Uddin, Legal Counsel for the Becket Fund for Religious Liberty
The conflict between religious freedom and blasphemy laws in Pakistan is a source of constant concern for the international community. Not only are the blasphemy laws in Pakistan outrageous in themselves, but they are also applied unfairly by those with an agenda, and even the act of defending someone who has been accused of blasphemy has come to be seen as a crime.
All of these elements are evident in the May 7, 2014 murder of human rights lawyer Rashid Rehman, who was killed for defending poet and Fulbright scholar Junaid Hafeez against allegations of blasphemy. Hafeez, a professor, was accused by his students of insulting the Prophet Muhammad on Facebook. The accusations were baseless, but as with most cases of blasphemy charges in Pakistan, no real evidence was needed. He was charged by the police, defenseless without a lawyer. Rehman, special coordinator at Pakistan’s Human Rights Commission, agreed to represent Hafeez in court, knowing the decision would put his life in danger. Continue reading “The Terrors of Blasphemy Laws”
By Eric Rassbach, Deputy General Counsel for the Becket Fund for Religious Liberty
“To be or not to be?” is a lot tougher question than the one everyone should be asking about Denmark today — “Why did Denmark really ban kosher and halal slaughter?” The answer is sadly quite simple–to discriminate against its Jewish and Muslim citizens. The government claims that it is because it wishes to allow only humane slaughter, but the evidence is at best equivocal. Many countries, including the United States, treat kosher and halal slaughter as definitionally humane methods of slaughter. Continue reading “Something is rotten in the state of Denmark”
By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty
In an important freedom of religion decision, earlier today the European Court of Human Rights rejected parts of Hungary’s 2011 Church Act that stripped most Hungarian religious groups–including prominent religious groups such as Mennonites, Evangelicals, Reform Jews, and Buddhists–of “church” status that they had held for many years after the fall of Communism. Continue reading “European Court of Human Rights rejects Hungary’s attempt to create ”second-class churches””
On October 8, the Turkish government lifted its ban on headscarves for women in state offices. And just a couple of weeks ago, on October 31, four female MPs marked the end of the ban by walking into Turkey’s parliament in Ankara wearing headscarves. Continue reading “A Victory for Headscarves and Religious Freedom”
WASHINGTON, DC – The Grand Chamber of the European Court of Human Rights in Strasbourg, France, the final court of appeal within the European human rights system, today made a groundbreaking decision in Sindicatul “Păstorul cel bun” v. Romania affecting the rights of religious groups in Europe. In an 11-6 ruling, the Grand Chamber held that the Romanian Orthodox Church’s right of religious autonomy trumped the right of dissident Romanian Orthodox priests to create a trade union. The proposed trade union would have been able to organize strikes against the Church.
“Church autonomy is good for the church and good for the state,” said Eric Rassbach, Deputy General Counsel for Becket, which filed a friend-of-the-court brief in the case. “A church is not truly autonomous—and its members not truly free to exercise their chosen faith—if bureaucrats can force the church to change its millennia-old traditions at the request of dissident factions. And a government can’t be neutral on matters of faith if it is deciding who’s in charge of a church.”
The Sindicatul case concerns a group of priests of the Romanian Orthodox Church who sought to form a trade union against the wishes of their bishops. The Romanian courts and the Romanian government found that the establishment of such a “rogue” union would violate the Church’s freedom of religion. The employees appealed to the ECHR, and the Third Section (a smaller panel of ECHR judges) found that the employees’ right to unionize trumped the Church’s beliefs about the duties of loyalty that a priest owes to his bishop.
In its ruling today overturning that decision, the Grand Chamber said that “Respect for the autonomy of religious communities … implies … the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.” The Grand Chamber went on to hold that in refusing to recognize the dissident trade union, Romania “was simply declining to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of neutrality.”
Becket’s brief argued that both European and American law recognize a strong right of religious autonomy preventing government interference with a church’s internal affairs. The brief was signed by Professor Michael W. McConnell of Stanford Law School and joined by the International Center for Law and Religion Studies, headed by Professor W. Cole Durham of the J. Reuben Clark Law School of Brigham Young University.
“True autonomy for religious organizations of all sorts is becoming even more important as Europe and America become increasingly religiously diverse,” said Professor McConnell. “In this area, government governs better when it governs less.”
Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 18 years its attorneys have been recognized as experts in the field of church-state law. Becket recently won a 9-0 victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”
For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea at email@example.com or call 202.349.7224.
WASHINGTON, DC – On Friday, 8 February 2013, the European Court of Human Rights announced its rejection of the Juma Mosque Congregation’s appeal against the government of Azerbaijan. The ruling came more than eight years after the mosque first sought relief from the Court when the mosque’s building was seized by government security forces and the mosque’s members expelled in 2004.
The mosque was targeted by the authorities because it would not agree to replace its existing religious leader, Ilgar Ibrahimoglu Allahverdiyev–a prominent democracy and religious liberty activist–with a government-appointed imam. Without a government-appointed and -controlled imam, the authorities refused to register the mosque, which meant the mosque could not own or rent property. The mosque had sought relief in the Azerbaijan courts and had then appealed the case to the ECHR with the help of Becket Law. The mosque sought the ability to register itself as a legal entity without submitting to the appointment of a government imam and to remain in the mosque building it had used for worship for the more than 12 years since Azerbaijan’s independence from the Soviet Union in 1991.
In its decision, the ECHR did not reach the merits of the mosque’s religious freedom claims, basing its ruling instead on technical legal defenses raised by the government. With respect to the mosque’s claim for registration, the Court held that the mosque should have brought suit against a different government agency in addition to the ones it had sued. And with respect to the mosque’s building, the Court held that the original permission from the government to use the mosque could be revoked unilaterally without regard to whether the revocation was meant to suppress the mosque. The ECHR’s decision means that the mosque cannot legally operate in Azerbaijan or use its building, which is located in the historic center of Azerbaijan’s capital Baku and is one of the oldest houses of worship in Azerbaijan.
“Justice for the Juma Mosque Congregation has been both delayed and denied,” said Eric Rassbach, Deputy General Counsel of Becket and the lawyer that filed the Mosque’s appeal in April 2004. “It is bad enough that the Court rested its decision on dubious factual defenses by the government, but to take eight years to reach this decision is doubly damaging because it left the mosque’s rights in limbo for so long.” “What’s worse is that this decision will only embolden autocratic governments to engage in registration abuse against minority or dissident religious groups, especially in the former Soviet space,” Rassbach added.
Registration abuse occurs when a government uses its discretionary power to deny legal identity to a religious organization on arbitrary grounds. It is a widespread phenomenon in countries in transition to democracy and especially the former Soviet states; registration as a legal entity is typically denied to minority, non-traditional, or dissident religious groups.
The background of the case is rooted in the struggle for democracy in Azerbaijan. Allahverdiyev was targeted by government security forces after a 2003 post-election crackdown on dissenting voices in Azerbaijan. After first taking refuge in the Norwegian Embassy, Allahverdiyev was later arrested and given what the ECHR, in a separate appeal, found to be an unfair trial.
Becket was co-counsel on the case with leading European human rights advocate Prof. Bill Bowring of the University of London, Birkbeck College School of Law.
Becket Law is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 18 years its attorneys have been recognized as experts in the field of church-state law. Becket recently won a 9-0 victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”
For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea at firstname.lastname@example.org or call 202.349.7224.
Washington, DC.- Today Becket filed a friend of the court brief at the European Court of Human Rights in Strasbourg, France in the Sindicatul case we blogged about here. The case is one of the most important cases for religious liberty in Europe in years. The stakes are particularly high for religious groups, because the case will decide whether employed clergy can unionize without their church’s consent.
Becket’s brief emphasizes that churches, synagogues and other religious organizations have a right to order their internal affairs without government interference. Drawing on the recent Supreme Court case of Hosanna-Tabor, the brief argues that just as the conscience of a person – how a person decides what he believes – is absolutely protected from government interference, so too should the processes by which a church decides what it believes be left to that church, not government officials. The Becket Fund’s brief argues that in fact European law and American law are converging on a consensus position of strong protection for religious autonomy.
Becket was happy to partner on the brief with Stanford Law School professor Michael McConnell and Professor Cole Durham of the International Center for Law and Religion Studies of the J. Reuben Clark Law School.
For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at email@example.com or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian and Spanish.
Becket Law is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more). ”
The Grand Chamber of the European Court of Human Rights, the final court of appeal within the European human rights system, has decided to hear a potentially groundbreaking appeal affecting the rights of religious groups in Europe to choose their own clergy. The Becket Fund had publicly urged the Grand Chamber to take up the case, Sindicatul “Pastorul cel bun” v. Romania, because of its importance for the freedom of churches and other religious organizations across Europe. In the Becket Fund’s view, the case has the potential to become a “Hosanna-Tabor for Europe,” referring to the Becket Fund’s successful church autonomy case at the United States Supreme Court earlier this year. The Grand Chamber’s decision suspends the previous ECHR decision in the case.
We blogged about the Sindicatul case here last month, when Becket Fund Deputy General Counsel Eric Rassbach spoke at a conference focused on the case at the Council of Europe in Strasbourg, France.
The stakes could not be higher for religious organizations. As the Becket Fund argued in its briefing to the United States Supreme Court, and in the presentation at the Council of Europe, these cases, whether they arise in Europe or in the United States, boil down to a simple question: Who picks the priest? Either it will be the Church, or it will be the State. And if it is the State, that means at the end of the day judges will be selecting clergy. That is not a role that judges in a modern democratic state should seek to take on. One of the most remarkable parts of the previous panel decision now suspended was that it penalized the government of Romania for leaving this internal church matter up to the Romanian Orthodox Church.
The Becket Fund looks forward to filing an intervention at the ECHR in favor of Romania and the Romanian Orthodox Church.
On June 7, 2012, Becket Fund Deputy General Counsel Eric Rassbach spoke at a conference at the Council of Europe in Strasbourg, France. Rassbach was part of a panel of legal experts including law professors and former judges of the European Court of Human Rights (“ECHR”) who were there to discuss Sindicatul “Pastorul cel bun” v. Romania, a case now pending before the ECHR. Conference attendees included around 20 ambassadors of the Council of Europe member States, representatives of different Churches in Europe, law professors, staff of the Council of Europe, lawyers, and other practitioners.
The Sindicatul case concerns a group of priests of the Romanian Orthodox Church who are seeking to form a trade union against the wishes of their bishops. The Romanian courts and the Romanian government found that the establishment of such a “rogue” union would violate the Church’s freedom of religion. The employees appealed to the ECHR, and the Third Section (a smaller panel of ECHR judges) found that the employees’ right to unionize trumped the Church’s beliefs about the duties of loyalty that a priest owes to his bishop. In March, Rassbach and Becket Fund colleague Diana Verm published an article in a Romanian law review, Revista de Drept Social, urging the ECHR’s Grand Chamber to review and reject the Third Section’s decision.
At the Council of Europe, Rassbach was asked to comment on how the United States Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission can shed light on the central questions in Sindicatul. Rassbach remarked that although Hosanna-Tabor dealt with specifically American laws in its decision in favor of church autonomy, the issue is fundamental to maintaining any pluralistic democratic society.
Church autonomy is essential not only for the benefit of the Church, Rassbach maintained, but also for the benefit of the State. Civil officials are ill-equipped to handle affairs of church administration, and doing so implicitly disrupts State neutrality on religious matters. In addition, the internal management of the Church is a private law matter that cannot be practically balanced with greater values of civil rights.
Rassbach also pointed out that church autonomy is necessary for pluralistic democracy as Europe and America become increasingly religiously diverse. Especially under such conditions, he said, it is “untenable and unjustifiable” for the State to involve itself in the inner workings of a particular church. To ensure neutral treatment of all religious groups and individuals, the State must keep its distance from any church’s organization.
The Grand Chamber of the Court will decide during the summer whether to review the Third Section’s decision.
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.
On August 19, Becket intervened in a high-profile asylum case at the federal Fourth Circuit Court of Appeals in Richmond, Virginia. Walid Salama and his wife and child face deportation back to Egypt despite a documented history of physical attacks by both the police and Salama’s family members due to the fact that Salama was formerly Muslim and his wife is a Christian. Mr. Salama’s conversion to Catholicism makes him even more of a target. Becket filed a friend-of-the-court brief arguing that Mr. Salama should receive asylum.
“The Department of Homeland Security says it can’t tell the difference between a convert who deserves asylum and just another religious minority,” stated Becket National Litigation Director Eric Rassbach. “But Mr. Salama’s relatives sure can — they repeatedly beat Mr. Salama, tried to kidnap Mr. Salama’s wife, vandalized their car, and tried to kill their baby daughter. They consider converts to be traitors to Islam and therefore deserving of death, and the police have been complicit in Mr. Salama’s torment. If Mr. Salama is forced to return to Egypt he will not survive.”
Becket’s brief argues that the Department of Homeland Security’s decision to deny asylum and send Salama back to Egypt completely disregarded copious evidence that details the persecution of both Christians and Christian converts from Islam in Egypt, as well as Mr. Salama’s own testimony of having faced violence and death threats. The brief also points out that asylum is required where governments refuse to protect religious minorities from private violence, and that under American law, being forced to conceal one’s faith is by itself grounds for asylum.
“In this country, if the local sheriff sits on his hands while a lynch mob attacks a minority, we’d call it an outrage and a crime,” said Rassbach. “But DHS doesn’t seem to care that Mr. Salama, as a convert to Christianity, faces the same fate should he be forced to return to Egypt.”
Becket worked with pro bono co-counsel Bethany Davis Noll and Maeve O’Connor of Debevoise & Plimpton LLP to file the friend-of-the-court brief.
Becket is a non-profit public interest law firm headquartered in Washington, D.C. Becket defends religious freedom for people of all faiths. Its clients have included Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, and Zoroastrians. Becket attorneys are recognized as experts in the field of church-state law.
For more information or to arrange an interview, please contact Melinda Skea at firstname.lastname@example.org or call 202.349.7224.
The Wall Street Journal – March 1, 2010
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.
The Wall Street Journal – December 11, 2009
“Three children walk into a European state school – a Muslim, a Sikh, and an atheist. The Muslim and the Sikh are expelled because they wear religious clothing: a headscarf for the Muslim girl, and a turban for the Sikh boy. The atheist is welcomed into the school, but feels uncomfortable because her classroom has a crucifix on the wall. Whose religious freedom has been violated?”
The Guardian – July 7, 2009
“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.
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.
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.
In a number of Middle Eastern countries, conversion to a religion (other than the prevailing strain of Islam) is a crime punishable by death. In countries with such laws, Christians and other religious minority groups are forced to practice their faiths in secret or risk unthinkably severe reprisal.
Tragically, those who manage to escape such authoritarian regimes and reach America aren’t guaranteed safety, thanks to an immigration bureaucracy that frequently overlooks the needs of asylum petitioners.
One such case, dealing with the flight of a Christian family from Iran, was argued and won by Becket. Having fled to the United States in 1999, the family sought the right to remain in America. In 2000, their petition was denied, followed by a second denial in 2003.
In hearings before the relevant immigration authority, Becket demonstrated that the family would be unable to openly practice their Christian faith in Iran and would likely be subject to religiously-motivated persecution. In keeping with U.S. laws and the requirements of the United Nations Convention Against Torture, the Iranian family was allowed to remain in the United States, where they may freely practice their religion in peace.
Thanks to the work of Becket lawyers, these immigrants have now been liberated from the looming threat of deportation and execution in Iran. However, we must keep their identities a secret because of the risk of reprisals.