NEUTRAL AND THEREFORE NOT SECULAR – THE PRACTICAL IMPORTANCE OF FREEDOM OF RELIGION FOR THE JEWISH COMMUNITY
One of the pre-eminent characteristics of fundamental freedoms is the protection of a (religious) minority from the views of a dominant majority. Freedom of religion is of fundamental importance to the Jewish community to fulfill all aspects of Jewish religious life.
The right to religious freedom is enshrined in the constitutional order of European states and in Human Rights treaties. The expression of this freedom manifests itself in Judaism not only in faith and prayer, but also and especially in the fulfilment of religious commandments or prohibitions. This is what the European Convention on Human Rights (ECHR) defines as
the right to freedom of religion which includes freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Religious conduct, as the practical application and maintenance of commandments and regulations, are thus enshrined in the ECHR.
SECULAR OR NEUTRAL
Taking the Netherlands as an example, the Dutch state has – certainly since the constitutional amendment of 1848 – never endorsed one particular religion, but has considered every religion to be equivalent. Consequently, the government should have no opinion about the way in which people wish to carry out their religious practice. That is the essence of freedom of religion.
Just as the government is not religious, neither should the government be ‘not religious’. The government should be neutral, not secular. Neutral between religions, but also between religion and no religion.
In order to guarantee the functioning of a religious community, two key concepts are required: Freedom of religion and the separation of church and state. Freedom of religion and the separation of church and state have a specific interpretation that seeks to strike a balance between church and state and between believers and non-believers. Hence, this approach can be a blueprint for other countries.
A FUNDAMENTAL RIGHT ANCHORED IN CONSTITUTIONS AND IN TREATIES
Article 9 of the ECHR recognizes the right to freedom of thought, conscience and religion for everyone. This provision also includes the freedom to change one’s religion and belief and the freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
Freedom of religion is, however, not absolute. The ECHR also stipulates that this freedom can be limited by law, whereby the restriction must be necessary in a democratic society in the interest of, among other things, public order.
Hence, any limitation of the exercise of this right must be based on valid reasons related to state interest and not merely on other private interests or desires. On the other hand, this means that there might be different rights on a same level of appreciation resulting in conflicts between fundamental rights.
Whether a limitation is valid depends on several elements: whether there is a legal basis; whether the objectives pursued by the government with the restriction permitted are legitimate; whether the restrictions are necessary in a democratic society, meaning that there is a “pressing social need” that justifies the restriction; whether the restriction is proportionate in relation to the desired objective, and finally whether there are no alternatives less onerous to the freedom of religion, the so-called subsidiarity principle.
The European Court of Human Rights added that the government must be neutral and impartial towards religion and towards religious communities . Neutral, and therefore not secular.
Furthermore, the requirement that the restriction can only be imposed ‘by law’ means that it is not up to the discretion of the executive power, but up to the legislative power in the formal sense to impose such a restriction.
The importance to be attached to the protection of freedom of religion was described by the ECHR as follows: “As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society’ within the meaning of the Convention.
This is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism, inseparable from a democratic society, which has been dearly won over the centuries, depends on it.”
Hence, the curtailment of a religious conduct is an exception, and therefore has to be interpreted narrowly. Moreover, the burden of proof for the necessity for this curtailment lies with the government, not with the religious community facing such curtailment.
PUBLIC ACCOUNTABILITY FOR PURELY RELIGIOUSLY MOTIVATED CONDUCT
Should a religious community have to account to the government for conduct purely motivated by religion?
From a secular perspective, the basis for religious norms, namely that they are commandments decreed by divine authority and therefore not measured by means of a rational assessment. Whenever these norms do not coincide with the existing secular consensus, conflicts arise.
It is not in spite of this fact that religious commandments require special protection, but especially because of this fact.
In 2018, the Dutch parliament dealt with an initiative by the Party for the Animals seeking to ban religious slaughter. One of the argument brought forward at the time by a liberal MP was that ‘it should not matter to the animal to which religion the slaughterer adhered’.
To the non-religious, this argument is alluring. Why should an animal about to be slaughtered be concerned with the beliefs of the slaughterer?
However, this reasoning excludes the element of religious freedom, in light of which this argument is no more than a hollow phrase. It matters to which religion the slaughterer adheres to, because when an animal is slaughtered in a way that deviates from industrial slaughter is based on a religious practice protected by freedom of religion and if the right of religious believers to perform their religious practices is not recognized, freedom of religion is moot.
COMPLY OR EXPLAIN DOES NOT APPLY
In European corporate governance the principle, “comply or explain” is a widely used regulatory approach used to induce accountability through combining voluntary compliance with a certain rule and a legal obligation to declare compliance with or explain deviations from said code.
In other words, under this system those who do not adhere to the rule in question have to explain divergent behavior in an acceptable way.
Attempts to apply this principle in the context of religious practices are deeply misguided. In the case of religious conduct, protected by freedom of religion, the ‘comply or explain’ principle clearly does not apply and attempts to use this approach by analogy undermine religious freedom.
UNDER PRESSURE
Regrettably, this spirit of toleration seems to be on the want today as freedom of religion comes increasingly under pressure, not (yet) with regard to confession or forms of prayer, but rather in terms of restrictions to religious practice and teaching.
This is the result of a hastening process of secularization. Although religion still plays a very important role for many people, a growing majority of the population is no longer connected to any religious denomination.
The Jewish roots of Christianity are well established and form the basis of Judeo-Christian values. A connection between secularism and Judaism can also be ascertained on the basis of shared values, but this connection becomes more tenuous in the total absence of a defined supreme being, jointly worshipped by adherents and requiring the performance of spiritually motivated religious acts.
In the past, the idea of mission as an organized effort to spread Christianity was based on the premise that salvation had to be brought to the otherwise or non-believers. The moral coercive force exercised by secularists today bears resemblance, at least involuntarily, to the coercive force exercised on those professing a minority religion by religious majorities. Then, as now, Jews belong to this minority.
Another element that puts religious freedom under pressure is the reaction to the growing numbers of Muslims. Where Judaism has always been a minority religion and it has always developed in that sense, the followers of Islam come from countries where their religion is not state religion, then at least majority religion. In a society where this is not at all the case, where religion is at all is on its way back, this requires a major adjustment that might be slowly taking place Since adherents to Islam in the country are often migrants, the public perception has gained ground that they express themselves in their personal life in ways considered to be hindering their integration, which is regarded in the country as problematic.
In particular, arguments seeking to ban religious slaughter have gained ground in recent years at least partly motivated by the fact that this is a religious practice in Islam.
RELIGIOUS OBLIGATIONS CHARACTERISTIC FOR JUDAISM
Without making an exhaustive comparison of religions, it can be noted that Judaism, at least in relation to most other religions, has a large amount of religiously determined behaviours and attaches a large importance to them.
Whereas these are essential in the Jewish religion, Christianity calls these religious obligations “the works of the law,” and holds the view that after Jesus they no longer bring salvation.
In contrast, the non-compulsory nature of a way of life is even stronger from a hedonistic secularist perspective.
In 2018, the European Union Fundamental Rights Agency commissioned a survey of the experiences and perceptions of antisemitism in seventeen EU member states. Respondents were also asked about their own experiences of Judaism.
The survey shows that the extent to which Judaism is perceived is measured by the degree to which people adhere to Jewish prescriptions: Celebrating the Passover Seder-evening, fasting on Yom Kippur, lighting candles for the Sabbath and eating only kosher-certified meat at home.
Producing kosher-certified meat which follows the prescribed method of slaughtering is an example of religiously determined behavior, recognized by the European Court of Human Rights as an expression of religion protected by Article 9 of the ECHR , and in the Jewish context the protection of practice and observance is necessary to the fulfilment of this right.
More and more often, we hear the opinion that there is no longer any need to regard freedom of religion as a separate fundamental right. There is freedom of expression, freedom of association and assembly, so with those three freedom rights there is also sufficient protection for religion. This is a misconception for several reasons:
1. As long as not everyone believes the same thing or until the situation has arisen where nobody believes anymore, there is a need to guarantee the freedom of religion.
2. The confession of religion is substantially more than a group of people coming together and expressing an opinion.
3. Confessing to religion also entails religiously prescribed practice; to do something or to refrain from something.
4. Just as the government cannot completely silence freedom of expression, it cannot completely limit these behaviors either. The government cannot make religious behavior, as part of the practice of religion, completely impossible.
THE CONCEPT OF INDIVIDUALIZATION
The relationship between the religious and non-religious in the West is becoming increasingly unequal. The concept of the theme ‘religious’ has a close relation to the concept of ‘collective’, whilst the concept of ‘non-religious’ places emphasis on the individual. In the slipstream of Enlightenment liberalism, the balance continues to tilt in favor of individualism.
As the religious become a minority, it becomes more difficult to make a case to the non-religious majority of the advantages of a religious life. Behind this process, there are several factors, which reinforce one another.
We have already mentioned individualism, as well as a ‘comply or explain’ outlook on religious practices seen as deviant behavior from the secular norm. Likewise, decreasing respect for institutions is another factor.
Religions, in the form of their collective confession, almost stand or fall by the concept of institutions. Beliefs are rooted in the past, and on this basis institutions operate on religious and by definition irrational grounds.
Post-modern hedonistic persons, who design their lives around rationality, individualism and self-reliance, will tend to regard the past as merely a ballast.
THE STATE IS NOT SECULAR, THE STATE IS NEUTRAL
Religious practice has an intrinsic value and the consequence of these self-reinforcing developments is the need for a more extensive protection for religion and religious practice.
The fact that the number of religious people is declining does not mean that there is less need to protect them — on the contrary.
Without wanting to proselytize, religion can have something to offer to people today.
Since 2005, the European Court of Human Rights has repeatedly ruled, in the context of a summary of general principles set out by the Court at the start of a ruling, that the state has a duty to safeguard religious harmony and tolerance.
In light of the weakening position of religion in society, the state has a duty to safeguard harmony and tolerance between religion and secularism, and not to take secularism as the benchmark. After all, the state is not necessarily meant to be secular. The state is neutral.
The pressure of this process of secularization on religious freedom particularly affects Judaism, with its obligatory religious conduct, more than any other traditionally existing religion.
The already small Jewish community must not be treated as collateral damage of the approach of secularists to religion in general and Islam in particular.
Research shows that non-Jewish Dutch consumers eat matzes with butter and brown sugar . If the right to religious freedom evaporates for religious Jews in the Netherlands, then only that will remain of four hundred years of Jewish presence.
Religious Jews must not become a relic of yesteryear, a footnote in the present and a quantité négligeable in the future.
Ruben Vis is General Director of the NIK – Organization of Jewish Communities in the Netherlands.
