Freedom of conscience and religion? Maybe yes maybe no.

There is a need for historical, sociological and anthropological knowledge that lawyers may not possess. Without it, no sound and effective regulation of the relations between law and religion can be achieved.

Silvio Ferrari, Who needs Freedom of religion?

Eleni M. Palioura, Lawyer (Athens Bar Association)

    In Law and Religion bibliography a question arises whether or not freedom of religion is a “certain” right which fulfills its purpose in a secular contemporary society. The scope of this article isn’t the analysis of the context of the dialogue on this topic, but is limited to the brief overview of the current situation of the position of religious denomination in the state, which is an exceptional situation due to the coronavirus pandemic which has affected the implementation of international human rights around the world.

    While examining freedom of religion in Europe in accordance with its limitations during these months, one should start with the right guaranteed in paragraph 1 of Article 10 (Charter of Fundamental Rights, Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.) which corresponds to the content of Article 9 ECHR in accordance with Article 52 par.3 of the Charter. So, the limitations of freedom of religion in Europe in their general context should follow the par. 2 of Article 9 ECHR which clearly shows that: Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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. Is that enough to intemperate the current situation? No. Principle of proportionality as guaranteed and analyzed by Law and Religion legislation and case-law, should take a new form which one can claim that includes political issues, but actually in my view it responds to the contemporary implementation of freedom of religion: Principle of proportionality between church and state relations.  

    First of all, we have to start from the right to religious autonomy as a part of the right to religious freedom, which contains the claim of religious denominations - which legally exist in a secular state- to organize their internal issues according to their specific legal system. Religious autonomy is based on two different aspects: the collective and the individual. In this context regarding the question "who needs religious freedom during a pandemic?", there is one answer which responds to the claim that the state of course regulates and has the right to regulate religious freedom according to its perspective, but at the same time it needs to deal with the fact that freedom of religious conscience is actually violated in case of any regulation which totally ignores the core of the collective aspect of religious autonomy. And the answer is: the minimum protection of religious freedom and religious autonomy both collective and individual under any circumstances. But what is the minimum protection of religious freedom? A matter of understanding the concept of self-organization by a religious community itself or a matter of a secular courts interpretation or perhaps both? I believe both but I’m in favor of emphasizing the first. Of course modern society is made up of many different religious groups and entities. These groups have equal rights in the field of the freedom of exercising their religious duties. But there is also a legal limitation within both the individual and group autonomy. This legal limitation is exactly the state law and in addition the interpretation of the content of the existence of a religious group within the secular legislation. However such an interpretation could be placed within a religious community with a complete legal system such as canon law.  

    Now I’m going to use the example of Greek legal system. Why I choose Greece? That’s because Greece has a peculiarity in its state and church relations which is not similar to the other European systems of such relations. So Greece is a state in which, unlike most of Europe, the main religious community is the Orthodox Christian which is -to use the correct terminology- the privileged. In other words, we have a neutral state with a privileged religion which means that the state and church relations are very closed in both political and legal context, without of course violating religious equality. During the pandemic, measures taken by the Greek state for the Church of Greece have an affection on its core of worship. Interesting questions arising from this fact on the public dialogue on the position of Churches in the public sphere. Religious autonomy is not the same as self-creation so one can not claim that he has the right to force a religious denomination to change its internal legal system in order to develop his personality in the context of this denomination according to his will and perspective. The same rule should be followed proportional in any regulation that has an affection on worship, but always taking into account that “Religious freedom cannot be used as a cloak for any person with a contagious or infectious disease to spread such disease because of his religion” (Supreme Court of Florida, Division B, Moore v. Draper, March 21, 1952).

    In conclusion: Freedom of conscience and religion? Maybe yes maybe no. One can see a solution on the right to religious expression. Freedom of expression is at the core of a democratic state, because without this right, the freedom of development of one's personality is not fulfilled in a society that provides access to information and pluralism of ideas. We can see a direct relationship between the right of expression and the right to religious freedom, and in particular, there is a legal connection between the right of expression and the autonomy of religious communities and their members. So, again: Freedom of conscience and religion? Of course yes in any circumstances, with the legal and canonical (in case of the Orthodox Church) interpretation of the right to collective religious autonomy and also with an emphasis on the right to religious expression, which at this point is actually the expression of the self-organization of a religious denomination in the public sphere.