Is establishment consistent with religious freedom?

AuthorAhdar, Rex

Introduction I. Clarifying the Critical Concepts A. "Establishment" B. "Religious Freedom" II. The Incompatibility Position III. The Compatibility Position A. Generally B. International Stance C. European Case Law under the ECHR IV. Answering the Objections A. The Alienation Charge B. The Inequality Charge C. The Neutrality Mirage Are religious freedom and religious establishment mutually exclusive? This question evokes a classic dichotomy that is at the heart of many legal systems, notably that of the United States--the separation of church and state. The prevailing view appears to be that these notions are indeed mutually exclusive and that nations that single out a specific religion and accord it a privileged position inevitably discriminate against adherents of other faiths.

The authors argue, however, that a weak form of establishment is in fact consistent with religious freedom. Examining case law and legislation in countries such as England, Canada, Australia, and South Africa, they maintain that a state that explicitly acknowledges a religion without coercing or compelling religious practice or observance is compatible with religious freedom. Moreover, the authors suggest that religious establishment is inescapable insofar as all liberal democracies have an establishment.

La liberte de culte et l'establishment religieux sont-ils mutuellement exclusifs ? La question evoque une dichotomie classique au coeur de nombre d'ordres juridiques, en particulier celui des Etats-Unis, qui consacre la separation entre Eglise et Etat. Le point de vue dominant semble etre a l'effet que ces notions sont en effet exclusives et que les nations qui isolent et accordent un statut privilegie a une religion particuliere ne peuvent que discriminer contre les fideles de confessions differentes.

Les auteurs soutiennent pour leur part qu'une forme modeste d'establishment est en realite compatible avec la liberte de culte. S'appuyant sur un examen de la jurisprudence et de la legislation en vigueur dans des pays comme l'Angleterre, le Canada, l'Australie et l'Afrique du Sud, ils soutiennent qu'un Etat peut reconnaitre une foi particuliere, sans pour autant y compromettre la liberte de culte, a condition que la pratique on I'observance de cette foi ne soit ni forcee ou requise. Ils suggerent de plus que l'establishment religieux est inevitable, dans la mesure ou toutes les democraties liberales en ont un.


Can a state have an establishment of religion and religious liberty? Or is freedom of religion necessarily a condition that can exist only in the absence of an established church or faith? The prevailing view appears to be the latter: a nation that singles out a church for special privileges or accords it a unique status is, broadly speaking, being unfair. (1) It is, so the argument often goes, unjustly discriminating against adherents of other faiths, including those of no religion. Those who do not belong to the established faith may feel marginalized, perhaps even demeaned.

In this article we seek to challenge the prevailing view. We argue that establishment (at least in its contemporary, milder form) is not antithetical to religious freedom. As a matter of principle, religious liberty properly understood can coexist with religious establishment. In terms of current law, it is interesting to note that the relevant international conventions and the case law of the European Convention on Human Rights (2) do not see the two as inconsistent. This reflects, we believe, the correct appreciation of the theoretical problem.

Much of the criticism of establishment today derives from the voluminous American First Amendment jurisprudence on non-establishment. This case law--which, as many United States scholars concede, is highly controversial and confused (3)--should not dictate the answer to the question we address.

Establishment is, in fact, consistent with religious freedom. Establishment, we shall explain, is inescapable, and thus if religious liberty is to be realized at all it is always under the auspices of a state orthodoxy on religious matters. Even if a state does not have an established church, it will have an established position on religion. A secular, liberal state is not "neutral". It tolerates religions on its own terms. Religious liberty is always exercised in the shadow of establishments, whether conventionally religious or not.

In Part I we define the key concepts at issue, providing a thorough account of both "establishment" and "religious liberty". In Part II we examine the incompatibility position, namely, that the concepts of religious freedom and establishment are inherently at odds with one another. The compatibility position, which sees no inherent dissonance between the two concepts, is then outlined in Part HI. In Part IV we address the principal objections to the compatibility defence--the alienation and inequality charges--and explain the practical impossibility of absolute neutrality.

  1. Clarifying the Critical Concepts

    1. "Establishment"

      "Establishment" is an ambiguous term, "a word of no certain meaning", (4) never "a legal term of art"; (5) a concept that is "vague, imprecise and ever-changing". (6) There are several overlapping meanings. In a judgment discussing section 116 of the Commonwealth of Australia Constitution Act 1900, (7) Gibbs J. identified four distinct senses in which a religion could be established by law:

      The widest of these meanings is simply to protect by law ... Secondly, and this is the most usual modern sense, the word means to confer on a religion or a religious body the position of a state religion or a state church ... Thirdly, when used in relation to the establishment principle ... the word means to support a church in the observance of its ordinances and doctrines ... [T]he establishment principle can be held by churches that are unconnected with the state, and are supported by voluntary contributions alone.... A fourth possible meaning of the word "establish" is simply to found or set up a new church or religion, but that is obviously not the meaning used in s. 116. (8) This section will consider the first three senses of establishment in detail, beginning with a familiar exemplar of an established church--the Church of England ("the Church")--before moving further afield.

      In England the legal incidents of establishment are often thought of primarily with reference to the interpenetration of state and religious institutions, reflected in three aspects. (9) First is the position of the sovereign as head of state and Supreme Governor of the Church of England. (10) Second, there is state involvement in church procedures, be it the requirement of parliamentary approval for church legislation, (11) or the Crown's role in senior ecclesiastical appointments. (12) Third, there is church involvement in state processes, such as the coronation of a new monarch (13) and the representation of senior bishops in the House of Lords. (14) To these constitutional dimensions should be added the status of ecclesiastical law as part of Britain's common law, and the position of church courts.

      Judges have been careful, however, to distinguish the Church of England from the state. (15) Recently, in Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank, (16) the House of Lords held that the Parochial Church Council of the Church of England was not a "public authority" under the Human Rights Act 1998. (17) Lord Hope of Craighead stated that the Church of England

      plainly has nothing whatever to do with the process of either central or local government. It is not accountable to the general public for what it does. It receives no public funding, apart from occasional grants from English Heritage for the preservation of its historic buildings. In that respect it is in a position which is no different from that of any private individual.... ... The state has not surrendered or delegated any of its functions or powers to the Church. None of the functions that the Church of England performs would have to be performed in its place by the state if the Church were to abdicate its responsibility ... The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government. (18) Lord Rodger of Earlsferry stated that

      The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local ... This is true even though the Church of England has certain important links with the state. Those links, which do not include any funding of the Church by the government, give the Church a unique position but they do not mean that it is a department of state ... In so far as the ties are intended to assist the Church, it is to accomplish the Church's own mission, not the aims and objectives of the government of the United Kingdom. (19) Nevertheless, by virtue of its role as a national church, citizens have a number of legal entitlements against the Church of England that they do not have against other religious bodies. The Church of England is the only religious body legally bound to provide ministry to the whole population (anyone living within parish boundaries), and not just to its own members, as evidenced by the duties in canon law to baptize, marry, and bury parishioners. (20)

      The chaplaincy responsibility of the Anglican Church is also reflected in a small number of technical provisions affording it preferential treatment in order to pursue its national ministry in education and prisons. (21) These duties are cited by some modern defenders of establishment in response to the claim that the Anglican Church's status should be diminished, notwithstanding declining attendance at services and the increasing pluralism and secularism of British society. Its supporters argue that the Church of England has a...

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