Lev Levinson. The first of freedoms

On April 2, 1871, the Paris Commune defined freedom of conscience in this way. Being a derivative of Christian ontology, the very essence of the existence of the New Testament world ("where the Spirit of the Lord is, there is freedom", 2 Cor. 3, 17), this freedom tore its cocoon, rebelling against clerical and dogmatic coercion, becoming freedom of thought, speech, expression of opinion, ideological and political choice.

The principle of freedom of conscience became fundamental for the new secular states, including Soviet Russia. The latter, declaring adherence to this value, subsequently, as is known, actually abandoned it, although it retained the mention of the realization of this freedom as a political goal in all its constitutions.

Comprehension of the challenges that the Russian state is facing today actualizes the appeal both to those domestic legal foundations that supporters of the church-state symphony tend to call "secular-Soviet" and to external experience. The latter is varied. It contains examples and justifications for any model. Probably, only by referring to ideologically opposite sources, one can get some balanced and more or less objective idea of ​​the understanding of freedom of conscience and a secular state by international institutions and in various countries.

In this text, it is mainly not about the experience of life, but about the legal experience. Of course, there may be opposing opinions about the value of a particular legal tradition. Moreover, the criterion for the selection of precedents and legislative provisions from American or European practice can always be recognized as biased, due to pre-prepared conclusions. I would like to avoid this. Moreover, anticipating further discussions, it is necessary to immediately indicate that the model of a secular state worked out by the US judicial system (which is not legally binding for Russia) seems to be generally more suitable for Russia than the European one, which found a generalized expression in the decisions of the Strasbourg Court. But it does not follow from this that one can neglect what Europe has worked out, much less distort the law of the European community.

This text is divided into three sections. The first, more voluminous, is devoted to the interpretation of the First Amendment to the constitution by the US Supreme Court. Despite the legal insignificance of this information for domestic law enforcers, turning to the case law of the United States is important in Russia, a state that has passed almost a century of real secularism. The decisions of the US Supreme Court are interesting not only for their brightness, literary and publicistic nature. They contain methodological tools for constitutional analysis. And the subject of interpretation - the US Constitution - in this part is not so different from the Russian one.

The second chapter also discusses court decisions - not so eloquent and detailed in terms of the plot of interest to us, but they are part of the legal system of the Russian Federation. These are decisions of the European Court of Human Rights that touch on the topic of freedom of conscience - not so much those that are aimed at protecting religiosity, but related to the problems of a secular state.

In the third chapter, it makes sense to turn again to the Russian legal retrospective. Defending religious freedom, Russia is called a multi-confessional state. This is true, but only partly. Russia is a secular state. This is a legal fact. But besides this (moving away from legal concepts) Russia is a religious space. With a rich history of once substantive and then increasingly formal religiosity, as well as expansive and then even more formal anti-religiousness, Russia naturally approached religious indifference. This should hardly be considered that asthenic syndrome of the entire social organism, from which it is required, by shaking itself, to free itself. It is unlikely that only a high level of religiosity increases the degree of passionarity. Even if we assume that this was the case, say, in the Middle Ages, then in the modern world the growth of religiosity - translated into the language of social psychology - becomes only a reflection of the success of political manipulativeness. An example of this is not so much the notorious "Islamic fundamentalism" as the former Yugoslavia, which was torn apart largely due to the use of the religious factor.

The programming carried out by the Russian Orthodox Church in relation to "ethnic Orthodox" has not yet worked due to the salutary indifference of Russians to religion. The message of the church is quite traditional. In the Social Doctrine approved by the Bishops' Council of the Russian Orthodox Church in August 2000, it is inspired too ethnographically and iconographically: "Die for the faith and the Fatherland, you will receive life and a crown in heaven." Perhaps, in the perception of those to whom it is addressed, this message is de-actualized by its traditional character. Understanding this, the church, in order to modernize the lifeless symbols, canonized as a new martyr the soldier Yevgeny Rodionov, who suffered from the "infidel Chechens" (so far, however, as a locally revered saint). For faith and fatherland... "Wahhabites", "martyrs" die with the same formula on their lips.

This context makes the discussion of the legal nature of the secular state timely.

U.S. Supreme Court on the First Amendment

" Congress shall not make laws establishing any religion or prohibiting its free exercise, restricting the freedom of speech or press, or the right of the people to peacefully assemble and petition the government to stop abuses. " Such is the content of the First Amendment, adopted in 1791, almost the same age as the American constitution.

Considering the religious part of this amendment in the context of the whole shows that the freedom to practice one's faith as a personal individual choice fits here into a series of public obligations that the people of the United States place on their representatives and on government as such. The authorities are forbidden not only to restrict freedom of religion, but also to encourage it in any way, to interfere in matters of faith in any way, singling out certain religions, confessions or giving them certain advantages.

The separation of the private and public from the state determined the pathos of the decisions of the US Supreme Court, which has interpreted the First Amendment over the past century and a half. This block of judicial decisions of the court, which performs the function of a constitutional court in the United States, has reached the highest semantic concentration in the last 60 years.

Conventionally, these acts can be divided into two blocks: 1) commenting on the principle of state neutrality in relation to religion; 2) evaluating the correlation of religious freedom and public interest.

1. Among the decisions belonging to the first group, some can be called indicative.

In 1947 Judge Hugo Black applied the now classic Jeffersonian definition of the First Amendment as " designed to erect a wall separating religion from the state ." This position was expressed (as a majority opinion) in the Everson decision, which challenged the constitutionality of New Jersey's law on state budget travel funding for denominational schools. The law was found to be contrary to the constitutional clause on the non-establishment of religion.

Jefferson's formula was repeatedly cited later in subsequent decisions affecting questions of the state's attitude towards cults.

In 1961, the Supreme Court ruled in Torcaso v. Watkins, outlawing a state law requiring government officials to believe in God.

The significance of this decision for puritanical and religious America is great. According to the American Religious Identification Survey, in 1991, 90% of American adults identified themselves as belonging to a particular religious group. In 2001, the number of believers in the United States decreased to 81%. According to a survey conducted by the Pew Research Council in March 2002, the number of believers in Americans was 87%, only 1% identified themselves as atheists, 2% - agnostics, 10% said they had no clear religious preferences. We did not refer to the data on the corresponding surveys of the 1960s. But there is no doubt that the numbers have not changed significantly. All 43 presidents who have ruled the United States have been Christians.

With a certain public recognition of religiosity, with its mass character, the Supreme Court separated social values ​​from power preferences in relation to their carriers. In fact, it was recognized that the public good, which, according to the electoral majority, is the belief in God, is able to hold on to the power of its own authority, without resorting to legislative props.

The United States continues to adhere to this rule with great care. Thus, under the Rules on Religious Displays for Federal Employees, approved by the White House in August 1997, an official working in a place accessible to the public must remember that his religiosity should not give the impression that the state encourages religion in general or favors certain faith.

In Allegheny v. Greater Pittsburgh (1989), the court found it a violation of the First Amendment to place a Christian image of a nativity scene on the main staircase of the district court during the Christmas holidays. The decision stated that since the religious image stood in the central place of the municipality, no one of sound mind could assume that it occupied this place without the consent and approval of these authorities. As can be seen from this example, not only laws, but also the actions of the executive branch became the subject of constitutional control.

As already noted, the problem of the secular nature of education is one of the key to determining the relationship to which the First Amendment is devoted. Thus, in the case of Abigton (1963), the court declared unconstitutional the rules that allow morning Bible reading in public schools, despite the fact that the relevant law allowed non-participation in this ceremony of a student who does not share Christian religious beliefs. The Court emphasized the element of coercion implicit in such wording of the law.

Wallace (1985) unconstitutional an Alabama law establishing a minute of silence in schools "for meditation or voluntary prayer." According to the court, although the performance of prayer was not obligatory, the law specifically singled out and thereby encouraged prayerful silence. The decision spoke of the right to freely choose "any religion or atheism": "The public interest in tolerance is broader than tolerance for Christian sects or different religions. It also covers the prohibition of intolerance towards atheists and agnostics."

Lee v. Weisman (1992) involved the participation of clergy in official graduation celebrations in primary and secondary schools, which was permitted in the state of Rhode Island. In the complained case, both a Christian priest and a rabbi were invited to speak at the school out of respect for the feelings of the Jews who studied at the school. Although the school administration gave the clergy special brochures called "Recommendations on how to conduct social events", the rabbi read selected verses from the Bible, and during the ceremony the students had to stand up. In this episode, the court saw the unacceptable inclusion of the religious in the activities of a state educational institution. The court decision stated: " The mixing of state power with religion can threaten democracy even when it does not force anyone to participate in religious rites. When the authorities express even an indirect approval of one of the religions, this inspires the exclusion of all those who do not share the beliefs that preference is given ".

Judge David Souter, in a concurring opinion, argued: "Religious insertions in Thanksgiving speeches <...> can be skipped, they are talked about by the impersonal media, and they are not directed to specific people. However, when the management of a public school, backed by the authority of public authority , signals to students that she supports a particular religion, such behavior strikes at the very core of the First Amendment."

Judge Souter's explanation partly answers the question of the inconsistency of American state-religious policy. Not only religious fragments in official speeches on Thanksgiving Day, but also the institution of chaplains, and the swearing of the oath on the Bible by the President of the United States can be presented as an obvious antithesis to the declared religious non-interference of public authorities.

But, just as Judge Souter interpreted the differences between religious signals at school and the mention of God's name on Thanksgiving Day, each of these examples finds a constitutional explanation. Thus, the president's oath on the Bible is more of a ceremonial demonstration of the continuity of power than an emphatically Christian act. After all, the oath is taken not just on the holy book of Christians, but on the Bible of 1767 edition, which was used during the inauguration of George Washington in 1789. In addition, although it is customary to take the oath on the Bible, this is not a mandatory requirement. The freedom of conscience of a citizen elected president shall not be subject to restriction. And therefore, the constitution itself prudently allows in this case, instead of an oath (forbidden in certain denominations), a solemn declaration of the incumbent: "I solemnly swear (declare) that I will conscientiously exercise the office of President of the United States and with all my strength maintain, protect and defend the Constitution of the United States "(Art. II, sec. 1). The fact that the oath is taken by the Chief Justice of the Supreme Court also serves as a guarantee of compliance with the First Amendment.

Of course, it would be naive to consider the position of the Supreme Court strictly consistent and non-debatable. Dissenting opinions were expressed in respect of all the aforementioned judgments. And in June 2004, the media reported that the US Supreme Court ruled that the words "one people under God" should be retained in the citizen's oath of allegiance. Indeed, the court dismissed the claim of California atheist Michael Newdow, who objected to his daughter saying those words. Earlier, in March 2003, the retention of these words was confirmed by legislation approved by Congress. But although the court decision leaves the text of the oath unchanged, the evasive position of the court can hardly be seen as a final victory for the supporters of keeping the mention of God in the civil oath. The fact is that Newdow's claim was rejected by the court not on the merits of the dispute itself, but because the applicant was not the sole guardian of his 10-year-old daughter (he was never married to her mother). The girl's mother, a staunch Christian, told the court that she insisted on her daughter taking an oath mentioning God. These formalities served as a saving excuse for the court.

1. Not without reason, James Madison, the father of the "Bill of Rights", saw in the separation of religion from the state a benefit for both parties. As can be seen from the following group of decisions of the Supreme Court, the religious neutrality of the state results in the recognition and protection of the inviolability of religious communities. Non-intervention in the affairs of churches implies both non-intervention of support and non-intervention of limitation.

The case of Yoder (1972) is illustrative in this respect. Members of the Old Testament Amish community (the ultra-conservative Mennonite Church) refused to comply with the Wisconsin state law requiring children under 16 to attend public or private schools. Members of this group recognized only the receipt of primary, up to the 8th grade, education. Judge Berger, who expressed the opinion of the majority, studied the life of the community and its history in detail and concluded "that the usefulness of compulsory formal education for an additional two to three years in terms of preparing for the performance of civic duties is speculative at best." As a result, the court found it acceptable to exempt Amish children from school after completing 8th grade.

The significance of this case lies in the fact that not only beliefs are protected by the constitution, but also the actions resulting from them, even if they may be declared illegal. The Amish were declared a special community, for reasons of faith exempt from certain laws binding on other citizens. This decision, which protects the group, proceeds at the same time from the recognition of the value of personal choice, respect for the choice of conscience. The precepts of faith were recognized as the supreme law (which they are for a believer), before which external precepts must retreat, unless, of course, religious rules "contradict the vital interests of the state or state" (under these interests, the Supreme Court has always understood the interests resident of the state and states, and not their administrations). " Even an unusual or sometimes strange way of life does not deserve condemnation because of its distinctiveness," the decision in the Yoder case said, "if it does not affect the rights and interests of others ."

The assumption that the position of the court in the Amish case was dictated by the sympathy of the population for this semi-museum (in the opinion of the tourist) community, alien to aggressive proselytism, recognition of their ancient roots in the American landscape, is correct. However, the court could not be guided by such considerations when considering the 1982 Unification Church case of Rev. Sun Myung Moon. Despite being labeled a "sect" by anti-cultists and notwithstanding its "unconventionality", the court found unconstitutional a Minnesota law clearly targeting "Moonies" that required any religious community that received more than half of its funding from non-members to annually submit a detailed declaration of income, indicating their sources. According to the court, "the intimidating effect of this requirement violates the right to freedom of religion." True, this decision was made by the court by a majority of five votes to four (whereas the ratio in the Amish case was 8:1).

The approach to the problem, manifested in the above cases, was not formed immediately. In the 19th century the court proceeded from the priority of public morality over the originality of faith. Most notable were cases of religiously motivated plural marriage involving The Church of Jesus Christ of Latter-day Saints (Mormons). In the cases of Reynolds (1879), Davis (1890), the court unanimously recognized the provisions of the Criminal Code prohibiting bigamy and polygamy as consistent with the constitution. As the court pointed out, " Congress has no legal power over views and beliefs, but it has the right to stop actions that encroach on the public duty and undermine the foundations of society ."

However, since the 1940s Respect for autonomous religious choice, recognition of the inviolability of religious behavior became decisive in judicial decisions on religious disputes. It is in this spirit that a series of judgments in favor of Jehovah's Witnesses has been sustained.

In the Kentwell case (1940), the Supreme Court found a violation of First Amendment rights when a member of the Jehovah's Witnesses community was convicted of disturbing the peace. On a busy street in a suburb of New Haven, where 90% of the population was Catholic, Kentwell was playing a record with lyrics he had composed that attacked Catholicism. He was also found guilty of violating a Connecticut law that required any public "distributor" of religion to be licensed by the state. The Supreme Court denied both allegations and held that the rights of the accused under the First and Fourteenth Amendments had been violated: like Congress cannot make such laws." No matter how offensive Cantwell's words were for Catholics or representatives of other faiths, he had the right to express whatever he wanted regarding other religions. Nor was he required to obtain a permit under the Connecticut procedure.

In the Barnett case (1943), the court held that it was unconstitutional for the forced saluting of schoolchildren to the flag. Judge Robert Jackson, in his opinion on behalf of the majority, justified the new position not by the First Amendment's freedom of religion provision, but by its freedom of expression provision: "Those who begin to forcibly eradicate dissent," Jackson wrote, "soon become sacrificial fanatics themselves. Forced unification of views only leads to graveyard unanimity.

At the same time, in the case of Prince (1944), the court agreed with the validity of the conviction of a mother who used child labor to distribute religious literature, regardless of the recognition that she was motivated by religious motives.

How deeply rooted the principles of religious freedom turned out to be, and at the same time how much they have always been and remain debatable, can be judged by the "peyote controversy", as well as by the stormy parliamentary and judicial controversy that has been going on in the United States since the early 1990s. around religious politics. Peyote is a mescaline cactus, the ritual use of which is practiced in the rituals of the Native American Church - a syncretic religion that combines the peyote Indian cult with elements of Christianity. Although many states did not prohibit the use of peyote for ceremonial purposes, Oregon did not recognize an exemption for religious drug use. In Smith's (1990) case, involving the prosecution of two citizens for liturgical peyote drinking, the Supreme Court did not uphold the believers, holding that the state's position was correct as providing for the "greater public interest" of fighting drugs. However, having listened to the authors of a dissenting opinion, on November 16, 1993, Congress passed the well-known Religious Freedom Restoration Act, which, in particular, fixed a special approach to religious rites if the general provisions of civil laws create obstacles for those who profess what or religion. However, in 1995 this law was largely recognized by the Supreme Court as contrary to the Constitution.

Since the 1990s, and then after September 11, 2001, conservative forces in the United States have largely taken revenge. The US Supreme Court, although regarded as the guardian of constitutional principles, is also subject to political influences in their interpretation. It is possible that tomorrow American justice may demonstrate different readings of the First Amendment on many of the issues discussed above. But each observer, referring to this or that legal experience, is free to choose the products of that sense of justice, which is closer to him.

It is likely that someone is closer to the decisions of the US courts, taken in the first half of the 19th century. Then the American courts proceeded from the fact that "Christianity is part of the common law inherited from England", regardless of whether the state supports the established church. In 1811, for example, a New York state court presided over by James Kent sentenced an atheist to prison for blasphemy, citing state law "stating that we are a Christian people and that the morality of our state is deeply rooted in Christianity." In 1838, Abner Niland, an atheist lecturer in Massachusetts, was imprisoned for two months for blasphemy. This is also, if you like, the experience of America.

Religious neutrality on the scales of Strasbourg

If the practice of the US Supreme Court in the format of this text could be described only in a very enlarged way, bypassing many important forks (omitting, for example, decisions regarding religious objection to military service), then it would be imprudent to undertake a description of the legislation of European states that requires a monographic approach. Meanwhile, without studying the national models of the member states of the Council of Europe, the European Court of Human Rights, whose positions on the issue of secularism and state attitudes towards religion will be discussed below, cannot be understood.

In short, the European Court is both France, with its more than two hundred years of secular history (the current Law of the Republic "On the Separation of Church and State" was adopted on December 9, 1905), and Greece, in whose constitution Orthodoxy is emphasized.

If we turn to Germany, then in the constitution of the Weimar Republic of 1919 it was stipulated that "the state church does not exist" and that "state support for religious societies, based on law, treaty or special legal grounds, must be terminated by the legislation of the Länder." And passing decades, in 1995 the Constitutional Court of Germany made a decision restricting the placement of religious symbols in schools as violating the principle of religious neutrality of the state (however, the Bavarian authorities declared that they would not obey this decision).

On the other hand - Orthodox Bulgaria, Catholic Poland. Art. 10 of the Law on Religions of the Republic of Bulgaria of December 20, 2002 states: " The traditional religion in the Republic of Bulgaria is Eastern Orthodoxy. It plays an important role in the history of the Bulgarian state and is of relevance to the life of the state. Its spokesman and representative is the self-governing Bulgarian Orthodox Church, which, under the name of the Patriarchy, is the legal successor of the Bulgarian Exarchate and a member of the One, Holy, Catholic and Apostolic Church. It is led by the Holy Synod, represented by the Bulgarian Patriarch, who is also the Metropolitan of Sofia. " The Constitutional Court of Bulgaria considered this law to be in conformity with the constitution, rejecting the complaints of public organizations.

The European Court is doomed to act, given this diversity and without interfering in what each state is inclined to defend as an internal matter, not related to the jurisdiction of the conventional bodies. Therefore, it is easier for Strasbourg judges to protect religious minorities from discrimination (and even then not always with reservations) than secular principles and a free attitude to religion as such. An example is several decisions against Greece, taken in favor of members of the communities of Jehovah's Witnesses: in the case of Kokkinakis (1993), in the case of Manoussakis (1996).

In the legal bases of the bodies of the Council of Europe (PACE, Cabinet of Ministers) and the CSCE/OSCE there is not a single document dedicated to the approval or protection of secular principles. The most that can be found are references to tolerance, such as the one contained in the Final Document of the 1986 Vienna Meeting of representatives of the CSCE participating states, which speaks of taking measures "to ensure real equality between believers and non-believers."

In the main act uniting the legal space of Europe - the Convention for the Protection of Human Rights and Fundamental Freedoms - Art. 9. Its paragraph 1 guarantees every person the right to freedom of thought, conscience and religion, including freedom to change his religion or belief and freedom to profess his religion or belief, either individually or in community with others, in public or private, in worship, teaching and performing religious and ritual rites.

Comparison of this text with Art. 28 of the Russian constitution reveals one interesting feature: the Constitution of the Russian Federation provides, in addition to those listed, also the right of everyone not to profess any religion. There are no such words in the Convention, although, of course, the freedom to hold beliefs implies the freedom of agnostics and atheists. But the divergence is deeper. Art. 28 of the Constitution of the Russian Federation confirms the right to freely choose, have and disseminate religious ** and other beliefs and act in accordance with them. In Art. Article 9 of the Convention (as well as the International Covenant on Civil and Political Rights) speaks of the freedom to hold opinions, either individually or in community with others, in public or private, in worship, teaching and the performance of religious and ritual rites. It is obvious that the component of active anti-religious actions (which should be guaranteed in a secular state), which is distinct in the Constitution of the Russian Federation, is "erased", invisible in the Convention and is hardly expected by it.

At the same time, under Art. 9 of the Convention, of course, falls within the right to freedom of conscience as the right to profess other, non-religious, but religion-related beliefs, not only individually, but also jointly with others, including in public order and through education.

Appeals of the European Court to Art. 9 of the Convention are extremely rare, and the existing ones, as already mentioned, were adopted mainly in cases of violations of the right of religious minorities to confess their faith: cases on numerous complaints from members of the Jehovah's Witnesses communities, the case of Bessarabian Metropolis v. Moldova (2001). If the case concerned issues related to religion, the court preferred to approach them from the standpoint of other articles protecting the right to a fair trial (Article 6), respect for private and family life (Article 8), freedom of expression (Article 10) , property (Article 1 of Protocol No. 1), as well as prohibiting discrimination (Article 14). Such caution in operating Art. 9 is conditioned by the presence of paragraph 2, according to which freedom to profess a religion or to hold beliefs is subject only to restrictions prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. In fact, the reservations in paragraph 2 almost completely destroy the positive content of the article, making paragraph 1 completely manageable paragraph 2.

Of course, it would be a mistake to assert that the European Court has been completely unable to go beyond the topic of religious discrimination in cases concerning state-church relations. So, for example, back in 1975 in the case of "Errosmit v. United Kingdom" the European Commission on Human Rights determined that within the framework of Art. 9 not only religious but also non-religious beliefs are protected. In this case, pacifism was recognized as such a belief, despite its lack of connection with any religion (Pat Errosmit was convicted of distributing leaflets among the soldiers that called for them to leave the army).

Several significant decisions of the European Court are devoted to the problems of a secular state and socio-religious (private-religious) conflicts. As noted above, the relevant practice is not extensive and, moreover, rarely relies on the provisions of the Convention that protect freedom of conscience proper.

In the case of Darby v. Sweden (1990), considered with reference not to Art. 9, and on Art. 1 of Protocol No. 1 and Art. 14, a violation was found in connection with the mandatory collection of church tax collected by the state in favor of the Lutheran church. But only the fact that the citizens of Sweden had the right to exemption from such a tax was recognized as a violation, and a foreign citizen, a member of this church, living in Sweden, did not use such a right.

The annals of the Commission on Human Rights also contain decisions nos. 9781/82, 11581/85, according to which the state cannot force any person to provide financial support to the state church through tax payments or otherwise. These highly informative materials require further study.

However, when considering the complaint of students about participation in religious lessons (CJ, JJ and EJ v. Poland, 1995), the principle of secularization was not protected by the court. The complaint concerned the failure of the school authorities to organize the schedule in such a way that students who do not want to join religious lessons are not forced to wait for them to end, standing at the door of the classroom. The applicant argued that such a situation compels students to participate in the teaching of religion. However, the Commission, and then the court, concluded that in the circumstances "there is no strong enough pressure to justify the conclusion that students are forced to change their religious beliefs under pressure."

On the other hand, in the Buscarini v. San Marino (1999) decision, the court, when considering whether the obligatory oath of parliamentarians on the Bible constituted impermissible coercion, concluded that although such an oath did not constitute a religious requirement, it the establishment is invalid. According to the decision, "the fact that the applicants were obliged to take an oath on the Gospels means that two people's deputies were forced to take an oath of allegiance to a certain religion, which is contrary to Article 9 of the Convention."

A number of court decisions taken on disputes about the violation of Art. 10 of the Convention, concerns the position of states in conflicts between secular freedom and the traditionalist religious majority. Only one of them was adopted in favor of a minority opposed to official or semi-official religion and ideology. This is the decision in the Open Door and Dublin Midwives; v. Ireland (1992), which found that the Supreme Court of Ireland's ruling prohibiting the applicant agencies and their staff from counseling pregnant women about abortions was an obstacle to the free flow of information and violated Article 10 of the Convention.

On November 25, 1996, after almost seven years of proceedings in Wingrove v. the United Kingdom, the European Court found no violation of Art. 10. Nigel Wingrove, writer and filmmaker, has appealed against the British authorities' ban on certification and screening of his video "Visions of Ecstasy", a "blasphemous" interpretation of the mystical insights of Saint Teresa of Avila. The persecution of the artist for "blasphemy" did not raise objections from the court. Rudolf Bernhardt, then President of the Court, even considered it necessary to add his own “concurring opinion” to the decision, where he signed his adherence to censorship: “ Prior control and classification of video films are useful in this sensitive area, where numerous dangers arise, especially for young people and the rights of others ." Another judge, Louis Edmond Pettiti, cited the testimony of an eyewitness: "The Director of the Film Classification Office said that the Office would take exactly the same position on a film that was disrespectful to Mohammed or Buddha." Judge Pettiti further explained: " In the same way, the refusal would be justified if, instead of the ecstasy of Saint Teresa, the film showed, for example, the anti-clerical Voltaire entering into an intimate relationship with some prince or king. In such a case, the decision of the European Court of Justice would be similar to the decision in Wingrove ."

In the case of Otto-Preminger v. Austria (1997), the confiscation of Werner Schroeter's film The Temple of Love was contested by the authorities. In this case, as in the case of Wingrove, the court gave preference to the religious feelings of the majority, the expression of which was recognized as the appeal of the Innsbruck diocese of the Roman Catholic Church about the undesirability of showing the film. Guided by paragraph 2 of Art. 10 of the Convention on the possibility of restricting freedom of expression in order to protect the rights of others, the court considered it impossible "to ignore the fact that the Roman Catholic faith is the religion of the vast majority of Tyroleans". According to the court, " by seizing the film, the Austrian authorities acted in the interests of ensuring religious peace in the region and in order to prevent individuals from feeling that their religious beliefs were the object of unreasonable and offensive attacks. "

It is significant that the passive, compliant position of the court in cases involving clerical or moral pressure on minorities (in these cases, cultural minorities) is mirrored in decisions concerning restrictions imposed by the authorities on religious behavior that conflicts with various kinds of official prescriptions.

In the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976), families complained about the introduction of compulsory sexual education. The court did not find in the actions of the state educational institutions a violation of the right of parents to educate children in accordance with their religious views, which, as the parents believed, was hindered by sexual education. The court decided that a public school could not be guided by church doctrine.

In this case, as in a number of similar ones, the difference in the assessment of the problem of religious refusal to fulfill statutory obligations by the European Court and the US Supreme Court is indicative: if the latter in the Yoder case found it possible to agree with the decision of the parents on the complete refusal on religious grounds to receive secondary education , then in the case of Kyedsen and others, the believers were not given the right to protect their children even from contraceptive classes. It seems that such a difference is explained by the recognition by the US Supreme Court of the absolute autonomy of religious societies, which is not characteristic of the European Court due to its dependence on national institutions.

In Kalach v. Turkey (1997), the European Court held that the administrative dismissal of a military lawyer related to his alleged involvement in a "fundamentalist sect" did not violate freedom of religion. The Court agreed with the Government's assertions that the applicant's actions "violated military discipline and the principle of separation of church and state", which in fact meant that the court recognized the possibility of a ban on the profession on religious grounds.

Both the European Commission and the European Court of Justice have addressed the issue of wearing the hijab in educational settings. In two complaints against Turkey, examined in 1993, the applicants alleged that they were forced to be photographed in accordance with the rules for wearing clothes, that is, without headscarves. The commission noted that, " although the rules for photographing for diplomas are not directly related to university disciplinary rules, nevertheless, they are an integral part of university rules adopted with the aim of maintaining the "republican" and therefore "secular" character of the university " . In the opinion of the Commission, “ by deciding to study at a secular university, the student thereby agrees with the university rules. The latter, in order to ensure the coexistence of different faiths, may provide for restrictions in place and form on the freedom of students to practice their religion. This especially applies to countries where the majority of the population professes a particular religion Unrestricted display of the rites and symbols of a religion may be perceived as pressure by students who do not practice that religion or who profess another religion When imposing disciplinary rules regarding the wearing of students by students, secular universities may provide for measures to that some religious fundamentalist movements do not disturb the public order in a higher educational institution and do not encroach on the beliefs of others ". The Commission concluded that "in view of the requirements for a system of secular university education, the fact that rules were introduced for students to wear clothes, as well as the fact that the administration refused to provide students with such a service as issuing a diploma until these rules are observed, are not in themselves interference with the exercise of freedom of religion or freedom of conscience" (Karaduman v. Turkey judgment, 1990).

This approach appears to be segregated. A person's religion is a part of his personality, like skin color or native language. The restriction of civil rights, in particular, the right to education on the basis of adherence to certain religious precepts, inseparable, according to the believer, from himself, not only contradicts the fundamental rights developed by Europe (which can be generally called the right to self-identity), but also represents, in fact, , similar to the ritual requirements for Christians in the Roman Empire to take an oath of civil allegiance. It is obvious how politically motivated these decisions are, however, quite numerous. Thus, in Dahlab v. Turkey (2001), the applicant, a public primary school teacher, argued that the ban on wearing the headscarf while working was a violation of her freedom of religion. In declaring this complaint inadmissible, the court recognized " the extreme difficulty in assessing the impact of such an apparently external sign as wearing a headscarf on the freedom of conscience and religion of young children. Thus, the applicant gives lessons to children aged 4 to 8 years, when they ask themselves a lot issues and are more easily influenced than older children. Under these conditions, can it be said indiscriminately that the Quran-mandated headscarf for women has no effect on them in terms of proselytism? It is equally difficult to reconcile the wearing of the "Islamic headscarf" with the education of tolerance, respect for other people and, most importantly, the teaching of the principles of equality and non-discrimination, which in a democratic society every teacher is obliged to instill in his students. ".

The decisions of the European Court of Human Rights concerning freedom of conscience, together - with some exceptions - a rather gloomy picture - the triumph of ethno-confessionalism and double standards - both depending on the violating states (what is allowed by Great Britain, Austria and Turkey, is not allowed to Ireland and Greece), and depending on what - Christian or Muslim - violators and victims in question.

Hence the duality of the court's position even in cases where decisions are made in favor of applicants subjected to religious discrimination. So, despite the fact that the decision in the case "Kokkinakis v. Greece" recognized the state as a violator, the court actually agreed with the practice of preventive restrictions in relation to the so-called sects. As follows from the decision, the participating States have the right to check whether the activities of any movements or associations that are allegedly pursuing their religious goals do not cause harm to society. The main argument of the court was not the unlawfulness of the very responsibility for proselytism, provided for by the laws of Greece, but the recognition by the Greek government that, according to domestic law, the religious community of Jehovah's Witnesses falls under the definition of a "known religion" (the status division of confessions into known and newly formed ones is enshrined in Greek law) . Thus, the court did not so much protect religious freedom as it caught the Greek authorities in a contradiction.

Russia. Secularism as a right

But there is actually Russian experience, with which it is also not a sin to relate.

The legal registration of the state as secular was initiated by the Provisional Government. On March 7, 1917, it abolished the religious form of the oath for non-believers, and on July 14 issued a decree "On freedom of conscience." The resolution stated that "the enjoyment of civil and political rights does not depend on belonging to a religion, and no one can be persecuted and limited in any rights for convictions in matters of faith."

The Decree of the Council of People's Commissars of January 23, 1918 "On the Separation of Church from State and School from Church" forbade " to issue any local laws or regulations that would restrict or restrict the freedom of conscience or establish any advantages or privileges for on the basis of the religious affiliation of the citizens .

Clause 10 determined: " All ecclesiastical and religious societies are subject to the general provisions on private societies and unions and do not enjoy any benefits and subsidies either from the state or from its local autonomous and self-governing institutions. " This clause, in fact, ruled out the need for special religious legislation (which nevertheless appeared in 1929), and general norms governing the activities of public associations extended to religious organizations. This was repeated later in the Weimar constitution.

At the same time, the same decree included, as is known, discriminatory provisions on depriving churches of the rights of a legal entity, the right to own property, the prohibition of coercion or punishment by religious societies on their members (which is gross interference in the internal affairs of churches), other repressive norms .

The question, however, is whether the politicized attitude towards Soviet legislation on cults as repressive in general is justified? Isn't a differentiated approach to the principles worked out in relation to religions from 1918 to 1929 more appropriate? Their sober assessment could be determined by the distinction between aggressive atheistic discriminatory provisions and practices associated with them and the rigid requirements of secularism based on the unconditional separation of church from state and school from church.

Deprivation of property of religious societies and other above-mentioned reprisals of the decree of January 23, 1918, deprivation of clergymen of voting rights by the first Soviet constitution (which, however, was abolished by the constitution of 1936), a ban on religious activity without registration, the admissibility of holding general meetings of communities only with permission of the executive committee, the right of the authorities to interfere in the personnel policy of religious societies ("the right to challenge" members of the executive body), many other restrictions contained in the law "On Religious Associations" of April 8, 1929 (which remained in force until 1990), the prevention of missionary activity (amendment to the constitution adopted by the XIV Congress of Soviets on religious propaganda) - all this is now condemned and buried. Priests and believers subjected to persecution have been rehabilitated.

But these restrictive norms should not overshadow the progressive institutions of that time, not only acceptable, but also desirable in a secular state, which is based on the principle of freedom of conscience. The religious component was withdrawn from state and other public relations, from schools and the army, the church was deprived of benefits and state subsidies. By the order of the People's Commissariat for Education of July 11, 1927, for the first time, the priority of the cultural rights of citizens in relation to the rights of religious organizations was determined (the duty of parishes to allow excursions and individuals to examine church relics "for scientific purposes" during off-duty hours).

The Soviet government adopted secular legislation and consistently put it into practice, but at the same time it renounced freedom of conscience (although the concept itself is still present in Lenin's decree). The state religion was replaced by the state ideology, which is incompatible with ideological freedom. The position “everyone can profess any religion or not profess any” began to be considered basic in relation to religion, everything came down to religion and believers, and not to the problem of personal freedom. Obviously, the anti-religious and totalitarian content of Soviet legal relations in this area is not relevant for the current Russian situation - this should not be forgotten only as a warning. But besides all these obsolete (although still cherished by someone) prohibitions and prohibitions, the core was different. And the new Soviet and Russian legislation on religions adopted in 1990 serves as proof of its viability. Not only special laws - the union "On Freedom of Conscience and Religious Organizations" and the Russian "On Freedom of Religion" - but all the regulation of legal relations related to religion, on the whole, corresponds to the principles of separation of religious from state and public, principles brought to Russia by the February Revolution and finally took shape in the 1920s. The cornerstone of the Law of the RSFSR of October 25, 1990 "On Freedom of Religion" was the following provision: " No religion or religious association shall enjoy any advantage or be subject to any restrictions over others. The state is neutral in matters of freedom of religion and belief, that is, it does not take the side of any religion or worldview ."

We should also not forget the fundamental document for Russian constitutionalism - the Declaration of the Rights and Freedoms of Man and Citizen, adopted by the Supreme Council of the RSFSR on November 22, 1991. The Declaration, which remains legally valid to this day, guarantees the freedom of religious and atheistic activity : profess any religion or profess no religion, choose, have and disseminate religious or atheistic beliefs and act in accordance with them, subject to the observance of the law ." From this, in particular, it follows that atheistic education (i.e., not non-religious, but precisely anti-religious) has equal rights with religious education, and if optional religious education is recognized as acceptable in public schools (which, strictly speaking, is doubtful), then so the facultative atheistic, i.e. teaching atheism as a subject. Preferential (over teaching religion) legal grounds for teaching atheism are explained by the fact that religious associations are separated from the state, but not public ones, which include atheistic organizations.

The current Federal Law of September 26, 1997 "On Freedom of Conscience and on Religious Associations", a war for which the opponents of religious equality waged - and won - for several years, contains leaven that is detrimental to freedom of conscience. But even this law, subjected to harsh human rights and constitutional criticism, does not deviate from the basic characteristics of a secular state. One of the main signs of this is the inadmissibility of financing any religious organization or religious activity from state or municipal budgets.

It is obvious that there is a desire to replace the meaning of constitutional principles, to radically change this law, which is transitional from the point of view of the “Orthodox community”. The already cited Social Doctrine of the Russian Orthodox Church says: " The principle of secularism of the state cannot be understood as meaning the radical displacement of religion from all spheres of the life of the people, the exclusion of religious associations from participating in solving socially significant problems ." These tasks include culture, education, public administration, defense, and security. The Church does not mind entering there, and it is not her fault. The guilt of the state, which is ready to open the door and drag the Patriarchy behind it, seeking to receive something sanctifying and justifying in it.**