Sindicatul “Pastorul cel bun” v. Romania

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.

New Zealand Kosher Ban

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.

Jasvir Singh v. France, Bikramjit Singh v. France

“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.

Islamic Council of Victoria v. Catch the Fire Ministries, Inc.

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.

Ake Green

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.

Photo Credit: Sonja Palm 

Juma Mosque Congregation of Baku v. Azerbaijan

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.

Lina Joy v. Majlis Agama Islam Wilayah Persekutuan

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.