Translated material
Elizabeth Sewell. Comparative characteristics of secular states and equality of religious organizations
The subject of this article is a comparative description of various constitutional models for structuring relations between the state and religious denominations. National constitutional models reflect the development of different historical traditions and political compromises and often approach the relationship between religion and the state from diametrically opposed perspectives. It is not my intention to impose the notion that the development of other countries and their constitutional provisions should mirror the development of my country and its constitution. I just hope to give a comparative description of some of the problems that arise in the context of Art. 14 of the Constitution of the Russian Federation.
The scale of possible church-state relations includes various configurations - ranging from acutely antagonistic to absolute merging of the state with a certain religious denomination. The complete separation and complete merging of the state and religion, which are at opposite ends of this scale, limits the freedom of religion. We have seen examples of such relations in the Soviet approach to the separation of state and religion and the current regime of religious rule established in Iran. Most systems in Europe and the US fall between these extremes. Thus, disputes in these states are conducted in the following area: in one part of the spectrum - cooperation and greater or lesser support of religion by the state, in the opposite - a neutral attitude or relative separation of the state and religion.
Different political compromises and approaches in different countries are also reflected in the constitutional systems of these states. To a certain extent, laws regulating relations between religious denominations and the state do not go beyond the framework of the constitution; they also provide for the long-term commitment of the state to a particular system. Naturally, disputes in this area do not die out - it is difficult to imagine that discussion in such a sensitive area as religion will ever stop - but the boundaries of the discussion are always determined by the constitutional structure of the country. For example, in France, disputes in this area may arise over how secular comprehensive schools should be and how the principle of secularity determines the permission or prohibition of students wearing headscarves - hijabs. But no one will seriously dispute the provision as to whether public schools should be secular in character and neutral in regard to religion, since the French Constitution declares France a secular republic. [1] .
Naturally, the constitution does not necessarily have to contain a provision on whether the state is secular or neutral in relation to religious organizations [2] . Freedom of religion can be protected through an equitable system of cooperation between religion and the state and in countries with tolerant state religions. This is how it works in some European countries. But based on political, state and historical considerations, some countries have chosen a secular model for protecting freedom of religion. Art. 14 of the Constitution of the Russian Federation clearly follows this model. I quote: "1. The Russian Federation is a secular state. No religion can be established as a state or obligatory one. 2. Religious associations are separated from the state and are equal before the law . "
In order to give a comparative description of Art. 14 of the Constitution of the Russian Federation, I would like to consider similar constitutional provisions in other systems. It is interesting to note that from the point of view of a comparative constitutional analysis, Art. 14 contains four different aspects: the secularity of the state, the lack of support for religion by the state, the separation of religious associations from the state, and the equality of religious associations before the law. As a rule, constitutions emphasize one of these aspects. Moreover, similar constitutional provisions of other countries can be divided into categories according to which aspect they emphasize in the first place.
Some constitutions emphasize the first aspect - the absence of an established state religion or the lack of state support for religion [3] . For example, the First Amendment to the US Constitution contains the following provision: "Congress shall not pass a law supporting or establishing a state religion . " The Australian constitution also prohibits the passage of "any law which establishes a state religion or manner of religious worship" . The Nigerian constitution prohibits the state from "proclaiming any religion as a state religion" . Art. 14 of the Constitution of the Russian Federation also states that "no religion can be established as a state or obligatory one" . These articles may be interpreted as prohibiting the establishment of a state religion, a compulsory religion, or an official state preference for a particular religion. Some scholars of constitutional traditions also understand the prohibition of establishing a state religion as a general prohibition on any manifestation of a state preference for a particular religion, especially if such a preference is based on religious beliefs or on the historical role of religion, although such an understanding is disputed.
Approximately the same, but still different, set of problems arises to the requirement of "secularism" of the state. This requirement is also included in Art. 14 of the Constitution of the Russian Federation. This requirement is contained in some other constitutions [4] : for example, the French Constitution states that "France is a single, secular, democratic and social republic" [5] . Despite the fact that the meanings of the terms overlap somewhat, it is quite clear that secularism is a broader concept than the usual ban on the establishment of a state religion. The ban on the establishment of a state religion does not allow the state to express a preference for a particular religion, while the concept of secularity expresses a clear political choice in favor of a non-religious or areligious state. It should be especially noted that such a state is not necessarily anti-religious, but its policy will be primarily determined by secular goals and the state budget will be used exclusively to achieve these goals.
The third category of constitutional provisions focuses on the idea of "separation" of religion and state. This concept is spelled out in Art. 14 p. 2 of the Russian Constitution ( "Religious associations are separated from the state..." ) and is also included in a number of constitutions of other countries [6] . Art. 20 of the Constitution of Japan, for example, contains the following provision: "No religious organization may receive privileges from the state and wield political power"; "the state and its bodies have no right to participate in religious education or to engage in any other religious activity" . Many U.S. Supreme Court decisions banning government support for any religious activity, and even calling into question the legality of government indirect financial support for religion, rely on Thomas Jefferson's "high wall of separation between church and state." The idea of secession focuses on the separation of church and state in order to avoid confusion between these institutions and becomes an even broader concept than secularism or the prohibition of establishing a state religion.
Some constitutions contain a provision directly speaking about the equality of religious associations [7] . Some constitutions, such as the French, prescribe "the equality of all citizens before the law, regardless of their origin, race or religion" [8] . The French Constitution further stipulates that the Republic "respects all opinions" [9] . The concept of the equality of all religious associations is much broader than the concept of the equality of all citizens, regardless of their religion. The equality clause obliges the state to treat citizens, and in the case of the Russian Federation [10] religious organizations , in terms of equality. This provision runs like a red thread through all other aspects, such as the ban on the establishment of a state religion, secularism and the separation of church and state, which presuppose neutrality and equal treatment on the part of the state.
So, we can draw the following brief conclusion: in accordance with international and regional agreements, constitutions do not necessarily have to contain provisions for the separation of church and state, the neutrality or secularity of the state system. The general guarantee of freedom of religion (for example, Article 128 of the Constitution of the Russian Federation) [11] is sufficient to meet the requirements that Russia has assumed in connection with the adoption of the European Convention. The core constitutional protections for freedom of religion provide an opportunity for greater cooperation between the state and religion, or the state and state religion. However, even in systems of cooperation of religion with the state or state religion, there are minimum requirements for the actions of the state and the religious majority in relation to the religious minority. The European Court of Human Rights has dealt with some of these requirements: for example, the principle of non-violence against personal beliefs, the principle of non-discrimination, the provision of reasonable access to legal personality [12] , the ability to act in accordance with one's faith within the narrow limits necessary in a democratic society [13] and the right to the autonomy of religious organizations, such as the ability to choose their own leaders [14] . You can list other ways to protect religion. Most importantly, however, even in constitutional systems that allow extensive cooperation between the state and religious organizations, the state is subject to restrictions on what actions the state itself and the religious majority can take against a religious minority.
However, some constitutional systems have taken a path other than cooperating with a religion or establishing a state religion and have limited their scope to such terms as prohibition of a state religion, secularism, separation of church and state, and equality of religious associations, each of which has special and correspondingly broader meaning. Some constitutions contain a set of these terms [15] , but, as far as I know, art. 14 of the Russian Constitution is unique among the world's constitutions, as it contains all four concepts and, thus, establishes a rather strict prohibition on cooperation between the state and religious organizations or on the preference of one religious group over another. Based on these constitutional concepts and taking into account the Russian experience and culture, the various ways of cooperation between religion and the state, permitted by the European constitutions, in accordance with the Russian Constitution in its present wording are unconstitutional.
Does this mean that the state should be hostile to religion? I would like to point out that even in exclusively secular and secular regimes, such as Russia, the state is not required to be in opposition to religion. Rather, on the contrary, the state can do a lot for the successful accommodation of religious practices and can contribute to the development of religious values in its culture. I would like to give a few examples of other government systems that adhere to a strict separation of church and state - France or the United States. It is not my intention to argue that these systems have achieved the perfect balance of promoting religion while remaining secular. However, it seems to me that it would be useful to give examples of some possible options that are not fundamentally disputed within these state systems.
Secular states usually grant various direct and indirect financial and other privileges to religious associations and organizations that are sponsored by religious associations. These privileges include indirect tax benefits, such as allowing believers to deduct charitable donations from the total amount of taxation; exemption of church property from taxation; exemption from taxes on the import and export of religious products and related commercial activities of religious organizations. The state can also (and should) pay sufficient compensation for property taken from a religious organization in the past by the state (or taken by the state in accordance with its powers). Such compensation can be paid in installments - sometimes even over a long period of time [16] .
In France, the government provides financial support to religious organizations, paying for the repair of places of worship built before 1905, on the grounds that they are of significant value to France as cultural monuments and should be preserved [17 ] . The state can also act as a guarantor for religious groups to borrow money for the construction of new buildings of worship [18] . Private primary and secondary schools in France receive state support if they teach children of different faiths. In the US, these schools receive government subsidies through various voucher programs in which the parents of the students decide which school to send their children to.
Religious organizations in the United States provide direct subsidies to social services in various areas. This was long before President Bush's "Charitable Choice" initiative, which allowed faith-based organizations to apply for social service subsidies, was in the spotlight. Separate groups, organized by religious organizations, received money from the state for decades. For example, in 1999, the largest religious charitable organization in the US, the Catholic Charities, received two-thirds of its budget (totaling $2.3 billion) from the US government [19] . In 1998, faith-based hospitals received more than $45 billion from government health programs and other government reserves [20] . Since the Charitable Choice initiative has been publicly announced, religious association social services have been able to channel more than 100 different types of grants to support homeless shelters, drug treatment programs, skills development programs and other social services. Faith-based groups can compete with secular programs for up to $40 million in subsidies [21] . There is no precise data on how much religious groups receive, but a review of 140 programs provided by 5 federal agencies during 2002-2003 found that out of a total of $14.5 billion in subsidies, $1.17 billion into the hands of organizations attached to religious associations.
In special cases, the standards of religious freedom not only allow, but also require secular states to provide assistance or assistance to religious groups. In areas controlled by the state - in the army, prisons or public hospitals - the protection of the religious rights of military personnel, prisoners or patients is carried out by secular states in the form of providing the opportunity for religious worship and receiving religious instruction. Even in secular and secular systems such as the US and France, priests in the army, prisons and hospitals are compensated by the state; however, the state is responsible for including priests of all denominations in the program, regardless of the nature of the religious beliefs.
I have given several examples of even strongly secular states and countries that separate church from state support religious organizations and religious beliefs. Sometimes this support is not very different from what most churches or churches of a certain status receive in countries where the state cooperates with religion. Although it is important to note some differences here. In secular states and countries that promote separation of church and state, constitutional prohibitions prevent the state from granting various kinds of privileges to a particular group solely on the basis of the group's historical or cultural role or the nature of its religion. On the contrary, there are certain systems of control to ensure that the state does not give preference and does not make a difference between religious associations, except when it is absolutely necessary. Such systems operate on the basis of objective criteria and are directly related to the nature of the assistance provided. Even so, the opportunity to compete for subsidies or aid should be given to all groups.
In conclusion, I would like to give a few more examples. Where secular states provide public assistance in the form of tax credits or grants to social services on a competitive basis, this assistance should be available to all registered groups [22] . If this form of support is limited - for example, competitive grants - it should be given on the basis of secular criteria that are directly related to certain programs run by religious organizations. For example, if grants are given to create employee development programs, they should be awarded based on the objective merit of a particular program, for example, based on how successful the program was in helping graduate students find jobs, how much the program uses modern methods, what choice of jobs it provides, etc. Whether a group belongs to a majority or minority religion, to a historical religious tradition or to a newly organized one, should not be a determining factor.
Many Americans found this position difficult to accept. Some speak out in support of President Bush's "Charity Choice" program only until they learn that grants can also be given to groups that are non-traditional in the US, such as Muslims or Buddhists. Despite this, the government and the courts have made it quite clear that criteria such as the nature of a religious belief or the length of time a religion has existed in a country in a secular state cannot influence the allocation of government subsidies.
In secular states and states that adhere to a policy of separation of church and state, state subsidies cannot be used for exclusively religious activities - holding services, religious education, preaching activities or salaries to priests. For example, recipients of social service subsidies, say, the employee development program that I mentioned above, cannot use the allocated amount to educate participating groups in the program's religious beliefs. A religious organization's professional development program or a government-subsidized hospital may engage in religious activities if privately financed, insofar as participation in religious activities is entirely voluntary and there is clear evidence that the activity is being carried out. outside of a government funded program [23] . Indeed, grants to religious schools, both in the United States and in France, are given on the condition that the actions of the recipients of these grants are voluntary. There is no government coercion in transferring these subsidies through the taxation system to support religious activities. In secular countries and countries that affirm the separation of church and state, the state must explain its actions with secular goals and carry out these actions in such a way as to avoid excessive interpenetration of the state and religious organizations.
I have tried to give a comparative description of the individual constitutional requirements that exist in secular states and states that affirm the separation of church and state, and contrast these requirements with the conditions that exist in countries where governments work closely with religious organizations. I have also given examples of how these polities are not necessarily anti-religious, as is commonly assumed. However, I also tried to clarify the point that in secular countries and states that approve the separation of church and state, there are certain parameters according to which subsidies and other assistance are distributed among religious organizations. As a final thought, I would like to note one more aspect that a comparative characteristic can shed light on - the reason for the value of secular systems of government and systems that affirm the separation of church and state.
The nature of the systems that separate church and state is designed to prevent church and state from becoming too interpenetrating. This is a significant factor for those who fear that the mainstream religion will have too much control over the actions of the state. One of the sources of secularism in France is precisely this anti-clerical attitude. However, this reason is not the only argument in favor of the separation of church and state. Such a system of government allows minorities to fully participate in public life and bring benefits to people, and also protects these groups from discrimination and a ban on participation in public life. In addition, such a system of government provides good protection for the religion of the majority. The leaders of the Church of Sweden, formerly the state, understood this principle and became the main force in the struggle for the separation of the Church of Sweden from the state in 2000. They realized that too close ties between church and state harm the majority church itself.
Unfortunately, it is not possible to fully discuss all the arguments in favor of the separation of religions from the state in order to protect the majority or traditional religions themselves in the framework of the article, but I would like to at least list some of them. The state-supported status of religion entails the following consequences:
1) dependence on the state, which hinders the development of religion and limits its independence;
2) distortion of the mission of the church, when the decisions of the group about what goals to pursue and how to prioritize depend on whether the state will subsidize these goals and priorities;
3) excessive regulation: the more assistance the state provides to religious groups, the more it controls the activities and beliefs of the group;
4) a waste of resources: religious groups that work closely with the state find that they spend more time working with the state than working with those they are called to help;
5) autonomy considerations: the state may use financial leverage to influence the policies, leadership or beliefs of religious organizations and pressure them to support public policy.
In general, constitutionally defined secular and secular systems of government can grant significant privileges to both minority and majority religions. Secular states do not have to be hostile to religion. On the contrary, they can contribute to the development of religious values and be a leading force in giving support to religions and revealing the potential power, strength and independence of religious organizations.
[1] Constitution of the French Republic, Art. 1: "France is an indivisible, secular, social, democratic Republic. It ensures equality before the law of all citizens without distinction of origin, race or religion. It respects all faiths."
[2] See Danish Constitution, Art. 4: "The Evangelical Lutheran Church is the state church of Denmark, and as such receives support from the state"; Greek Constitution, Art. 3(1): "1. The main religion of Greece is the Greek Orthodox Church of Christ. The Greek Orthodox Church recognizes our Lord Jesus Christ as its head and is doctrinally inseparable from the Great Church of Christ at Constantinople and any other Church of Christ adhering to the same doctrine, unquestioningly observing the holy apostles and synodal canons and holy traditions. It is autocephalous and is headed by the Holy Synod of serving bishops and the Permanent Holy Synod meeting in accordance with the prescriptions of the Church Code of Laws and the Patriarchal Book of June 29, 1850 and the Synodal Act of September 4, 1928"; Italian Constitution, art. 7: "1. The State and the Catholic Church are sovereign and independent in accordance with their own laws. 2. Relations between Church and State are governed by the Lateran Agreements. Amendments to these agreements accepted by both parties do not require the adoption of a constitutional amendment" and Art. 8: "1. All religious denominations are equal before the law. 2. Religious denominations (with the exception of Catholicism) have the right to internal self-organization in accordance with their laws, if such laws do not conflict with the legal system of Italy. 3. Their relations with the state are regulated by law on the basis of an agreement with their representatives"; Spanish Constitution, Art. 16: "1. The freedom of ideology, religion and religious activity of citizens and communities is guaranteed without any restrictions except those necessary for the maintenance of public order protected by law. 2. No one may be forced to publicly recognize his ideology, religious affiliation or creed. 3. No religion is a state religion The social forces take into account the religious beliefs of the Spanish society and maintain the necessary relations of cooperation with the Catholic Church and other denominations."
[3] Australian Constitution, art. 116: "The Commonwealth may not pass a law establishing any religion as a state religion, or prescribing the observance of any religious customs, or prohibiting freedom of religious worship, and membership of any religious denomination cannot be a determining factor for obtaining a state post in the Commonwealth"; Constitution of Belarus, Art. 16, item 1; Ethiopian Constitution, Art. 11, item 2; German Basic Law, Art. 140, which includes the Weimar Constitution, Art. 137, para. 1; Constitution of Ghana, Art. 56; Constitution of Ireland, Art. 44, para. 2 (prohibition on the "encouragement" of any religion); Constitution of Liberia, Art. 14; Constitution of Lithuania, art. 43, item 7; Constitution of Nigeria, Art. 10; Constitution of South Korea, Art. 20, item 2; Spanish Constitution, Art. 16, item 3; Constitution of Uganda, Art. 7; US Constitution, First Amendment.
[4] Constitution of Angola, Art. 8, item 1; Constitution of Azerbaijan, art. 7, item 1; Constitution of Cameroon, preamble, No. 5, paragraph 14; Constitution of the Congo, Art. 178, paragraph 5; Ethiopian Constitution, Art. 11, item 1; Constitution of the French Republic, art. 1; Constitution of India, Preamble, Clause 1; Constitution of Côte d'Ivoire, art. 2; Constitution of Kazakhstan, Art. 1; Constitution of Kyrgyzstan, art. 1; Constitution of Madagascar, art. 1, item 1; Constitution of Mali, preamble, paragraph 2; Constitution of Mozambique, art. 9, item 1; Constitution of Namibia, Art. 1, item 1; Constitution of the Russian Federation, art. 14, item 1; Constitution of Senegal, art. 1; Constitution of Tajikistan, art. 1; Turkish Constitution, Art. 2; Constitution of Turkmenistan, Art. 1.
[5] Constitution of the French Republic, Art. 1.
[6] Constitution of Azerbaijan, art. 18, item 1; Bulgarian Constitution, art. 13, item 2; Constitution of Cameroon, preamble, ╖ 5, paragraph 14 ("neutrality and independence of the state"); Croatian Constitution, art. 41, item 1; Ethiopian Constitution, Art. 11, item 3; Constitution of Kyrgyzstan, art. 8, item 3; Constitution of Hungary, Art. 60, item 3; Constitution of Liberia, Art. 14; Mexican Constitution, Art. 130; Constitution of Peru, art. 50 ("independent and autonomous" systems); Philippine Constitution, Art. II, item 6; Polish Constitution, art. 82, paragraph 2; Portuguese Constitution, Art. 41, item 4; Slovenian Constitution, art. 7, item 1; Constitution of South Korea, Art. 20, item 2; Constitution of Japan, Art. 20, pp. 1, 3 ("No religious organization may receive privileges from the state and may not exert any political influence"; "The state and its bodies may not participate in religious education or engage in any other religious activity").
[7] Constitution of Albania, art. 10(3): "The State recognizes the equality of all religious groups"; Constitution of Kenya, Art. 9: "The State is obliged to treat all religions in terms of equality"; Slovenian Constitution, art. 7: "Religious groups have equal rights; they can freely carry out their activities"; Constitution of Tibet, art. 10: "All religious denominations are equal before the law"; Constitution of Vietnam, Art. 70: "All religions are equal before the law."
[8] Constitution of the French Republic, art. 1 (my emphasis is E.S.); see also: Constitution of Angola, Art. 18; Austrian Constitution, art.7 (1); Constitution of Azerbaijan, art. 25; Constitution of Bangladesh, Art. 27; Constitution of Bosnia and Herzegovina, art. 4; Bulgarian Constitution, art. 6; Constitution of Cambodia, art. 31; Constitution of Cape Verde, Art. 1; Constitution of the Congo, Art. eleven; Croatian Constitution, art. 14; Estonian Constitution, Art. 12; Constitution of Georgia, art. 14; German Basic Law, Art. 3; Italian Constitution, art. 3; Constitution of Kazakhstan, Art. 14; Constitution of the Netherlands, Art. 1; Constitution of Slovakia, art. 12; Turkish Constitution, Art. 10; Constitution of Turkmenistan, Art. 17.
[9] See sn. 8.
[10] For example, the Constitution of the Russian Federation, art. 6 (2): "Every citizen of the Russian Federation has all the rights and freedoms on its territory and bears equal obligations stipulated by the Constitution of the Russian Federation"; Art. 17(2): "Fundamental human rights and freedoms are inalienable and belong to everyone from birth"; Art. 28: "Everyone is guaranteed freedom of conscience, freedom of religion, including the right to profess, individually or in community with others, any religion or none, to freely choose, have and disseminate religious and other beliefs and act in accordance with them."
[11] Constitution of the Russian Federation, art. 28: "Everyone is guaranteed freedom of conscience, freedom of religion, including the right to profess, individually or in community with others, any religion or none, to freely choose, have and disseminate religious and other beliefs and act in accordance with them."
[12] Metropolitan Church of Bessarabia and others v. Moldova (European Court of Human Rights. 2001. December 13. Case no. 45701/99).
[13] Kokkinakis v. Greece (European Court of Human Rights (Series A). 1993. Case No. 260).
[14] Hasan and Chaush v. Bulgaria, (European Court of Human Rights, 2000, October 26, case no. 30985/96); Serif v. Greece (European Court of Human Rights. 1999. 14 December. Case no. 38178/97).
[15] See: Constitution of the French Republic, Art. 1; Constitution of South Korea, Art. 20.
[16] For example, the main share of the budgets of some of the major churches in Germany still falls on state compensation for church lands taken from churches during the time of Napoleon.
[17] Haarscher G. Freedom of Religion in Context // 2002 BYU L. Rev. 269. P. 273-74.
[18] Basdevant-Gaudemet. State and Church in France. In Gerhard Robbers, ed. State and Church in the European Union. P. 139.
[19] Compassionate Conservatism Takes a Bow // Economist. 2001. 3 Febuary.
[20] Guidance to Faith-Based and Community Organizations on Partnering with the Federal Government .
[21] Faith-Based Initiative // The Rise of the Religious Right in the Republican Party .
[22] In the United States, the equivalent of registering a religious organization is achieving tax-exempt charitable religious organization status as prescribed by Art. 501(c)(3). It is assumed that the achievement of this status is available to all associations that meet the minimum legal requirements for registration. If such organizations take advantage of tax benefits in accordance with the status of the organization prescribed by Art. 501(c)(3), they are subject to criminal penalties and forfeiture of benefits if found to have attempted to avoid tax liability and are not charitable or religious organizations.