Editorial

The Threat to Religious Liberties and the European Institutions
 

ROGER KISKA
[Alliance Defense Fund]

Abstract:
The following article analyzes the 3 chief threats facing religious liberty today in Europe, namely: (1) hate speech legislation; (2) anti-discrimination laws; (3) attacks on parental rights. Concrete examples are given of offenses to religious freedom. Additionally, the black letter law is set out in each section with suggested action points for national governments. The Article also discusses the Lautsi v. Italy judgment of the European Court of Human Rights, explaining its importance and using it as evidence to establish the political nature of the Strasbourg based court.

Keywords: hate speech legislation, anti-discrimination laws, attacks on parental rights

(a) Introduction

It was an opportunity to address the importance of religious freedom and the emerging threats facing religious liberties in Europe during the ECPM congress held in the Romanian Parliament 23-25 June 2011. Romania, I believe, is an important and symbolic location to discuss about this theme because of a number of reasons. Romania is indeed a battleground country in international circles by both opponents and proponents of religious liberties. It is also a country which in 1989 showed the world what freedom means by ushering in democracy and rule of law. Those same freedoms are today at stake. Not at the hands of communism or dictatorship; but from a threat coming from a much more cunning and friendly figure with the European Institutions. These institutions believe that they can use Romania as a new member state still unsure of its place in Europe as a means of quickly implementing radical legislation that they would like to in the future set up in the west. In a way, it has become a cold war of social policy.

While Romania has by and large been spared this fate, other countries like Serbia and Croatia have been pressured by empty promises of easier access to European Union candidacy by radically changing their non-discrimination laws to protect „sexual orientation” at the grave risk of injuring religious liberties. Moldova is at this very moment under this same pressure. No doubt you will learn a lot about this push by the European Union against susceptible states in essence making empty threats and even emptier promises to get what they want.

So instead, I would rather discuss about the chief threats I see as facing religious liberty in Europe today. Those threats are three-fold: (1) hate-speech laws; (2) non-discrimination laws and (3) attacks on parental rights. I would also like in my time to address the ruling in Lautsi v. Italy as a key to understanding exactly where we are on the religious liberties road map at this time.

Before it is important to know what religious freedoms means to the average European. Freedom of thought, conscience and religion is guaranteed by the European Convention of Human Rights under Article 9 of the Convention.

The European Court of Human Rights has held that the right to freedom of thought, conscience and religion is one of the cornerstones of a democratic society. The Court has held that religious freedom is one of the vital elements that go to make up the identity of believers and their conception of life. Article 9 has taken the position of a substantive right under the European Convention of Human Rights.

The freedom to choose one’s faith and live it out is a protected and universal freedom under the European Convention. Discriminatory treatment of a religion for historic, ethnic or content based reasons, which has the effect of diminishing this freedom of choice, is illegal. State interference with the practice of those religious and philosophical convictions where necessity is lacking, violates Article 9 of the Convention.

What does religious freedom mean for you? Among other things, it means the right to pray anytime and anywhere. It also means that you can share your opinion and your faith freely, including references to the Bible or God. It means that no one can tell you what to believe. It means freedom to follow your own Christian conscience, even in your professional life, without fear of being persecuted or fired from your position. It means speaking openly about Christ in whatever stage of life you are…for example in your office or on university campuses. Freedom of religion includes the right to live your faith whether you are at work, in the store, in a church or in the classroom.

While this is what the black letter law says, the actual interpretation of Article 9 is in the process of entering some monumental struggles with very serious threats to our religious freedom. Let us start this discourse by talking about our right to speak and hear the truth.

(b) Freedom of Expression: „Hate Speech Laws”

The European Court of Human Rights has interpreted freedom of expression to protect not only the information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb; such are the demands of pluralism, tolerance and broad-mindedness without which there is no democratic society. A freedom which protects only ideas that are accepted by all is not a freedom. International law does not guarantee nor has it promulgated a right „not to be offended”. To this extent, intergovernmental bodies like the European Union of Council of Europe cannot seek to create new law. Instead they must shape their policy to conform to and to inform existing black letter law. And the black letter law dictates that the recent proliferation of „hate speech” laws where incitement and imminence of an objective threat are not prerequisite elements are in direct contradiction to the protection of freedom of speech.

Furthermore, freedom of religion is emptied of its value without freedom of expression. Freedom of religion is characterized by the fact that it is the only fundamental right which recognizes the transcendent. It is a freedom which deals with ultimate concern; the intimate and personal relationship of man with His God. At its heart, freedom of religion requires, and the law protects, the right to express one’s faith and in principle, the right to try to convince one’s neighbor of its truth.

„Hate speech” laws have a chilling effect on religious freedom when they are defined to mean that any appeal to truth, whether it be moral or spiritual, is punishable by law. European nations have a duty to remain neutral with regard to value judgments about the content of religious speech. Whereas a nation may legislate to promote conditions where competing worldviews live peaceably together; they may not legislate to guarantee that these same worldviews cannot have voices in the public square if they differ in content. Nor can governments dictate that people of faith may not publically speak what they deem to be moral truths.

The end product of this promotion of radical relativism is the incubation of an environment ripe for fundamentalism. For on the fringe of relativism lies a very attractive fringe of fundamentalism where people will go to extremes to find what they deem to be Truth with a capital „T”.

The principle of tolerance and non-discrimination was developed as a shield but is now all too often being used as a sword to defeat the fundamental freedoms of religion and expression. Tolerance is slowly becoming totalitarianism. The freedom to express moral ideas based in sacred texts, as Ake Green did in his Biblically based sermon on homosexual behavior, is being met with prison sentences. The belief in moral truths based in religious teaching, as was exposited by Rocco Buttiglione during his European Commission confirmation hearings, is being met by governments with professional ostracism.

With the adoption and application of „hate speech” laws we have re-created the notion of „heresy” and „orthodoxy”; some ideas are protected, others persecuted, and lives can be destroyed for holding the wrong ideas. Indeed rather than allowing thoughts and expression to compete evenly in the free marketplace of ideas, unpopular ideas are not debated, rather they are punished. As in the aforementioned Green and Buttiglione cases, religious notions of sexual morality or open criticism of certain religious belief systems are banned.

As the European Court of Human Rights, for example, has repeatedly held, „Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfillment.” We must never forget, for example, the lessons of 1989. It was the marriage of the fundamental freedoms of religion, expression and assembly in Poland which led to the creation of Solidarnosc. Without the legal preconditions to allow for open expression of moral and religious belief, Solidarnosc would have failed. These same lessons were most certainly learned here in Romanian in that same year. And so we must, as our host country has taught us, embrace these freedoms rather than stifle them.

Freedom of expression can be offensive. Publically, Sir Elton John recently called Christians en masse hateful lemmings because of the morality Christianity teaches. This was said, and rightfully so, without punishment. Reciprocity demands that people of faith be allowed equal opportunity to express their viewpoints. Human rights after all, are for the majority as much as they are for the minority.

We must never forget that freedom of expression makes up one of the vital elements of democracy. The pluralism in dissociable from a democratic society, which has been dearly won over the centuries, depends on it. „Hate speech” laws must therefore exempt religion-based expression and ideas.

Let us now move on onto non-discrimination laws.

(c) Non-Discrimination Requirements

The threat posed by „non-discrimination” requirements to religious associations cannot be overstated. Religious organizations exist for the very purpose of advancing and promoting their faith, prayer, evangelistic fellowship and similar activities. The right to promote these efforts and beliefs is guaranteed in international law as a fundamental right and a cornerstone of democracy. Requiring that non-adherents be permitted to lead or vote for leadership of such religious entities necessarily pre-stages their complete loss of identity and eventual ruin. Indeed, it seems absurd that any group could be coerced by government action to allow people to join their group when those people want to defeat that group’s mission and/or destroy the group itself. Such interference is a breach of international law which governs that a State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires that conflicting groups tolerate each other. Furthermore, there are numerous instances when such non-discrimination regulations have been applied to religious schools, hospitals, and charities. When government applies a religion non-discrimination law to a religious organization, it intrudes on the internal affairs of religious organizations. This governmental action violates the black letter of the law by taking away from the organization the ability to define itself as religious. And in the end, the result is the destruction of the religious group.

Laws that prohibit discrimination of persons on the basis of religion should specifically exempt all religion-based organizations, ministries, and activities. An example of a comprehensive exemption follows: „The prohibition of discrimination does not apply to: (1) the conduct of a religious organization, (2) the religiously motivated conduct of any organization, and (3) the religiously motivated conduct of an individual who is acting according to the dictates of his or her sincerely held religious beliefs.” Furthermore, laws that prohibit discrimination of persons on the basis of religion should specifically exempt all religion-based organizations, ministries, and activities.

We must also be very weary of non-discrimination laws in the scope of employment and provision of goods and services. The United Kingdom has proven that the implementation of such laws is a recipe for oppression of the Christian worldview. Recently in the United Kingdom, bed and breakfast owners have been successfully sued for refusing to rent one of the rooms in their home to a same-sex couple because of their religious convictions. In another instance, a foster family was denied the right to take in a foster child because they opposed homosexual behavior. Most Catholic adoption agencies which have sincerely held onto their Christian ethos have also shut down to business because of their refusal to have to place infants with same-sex couples.

And just in May, the European Court of Human Rights took up the companion cases of Liliane Ladele, a Christian registrar fired for asking to be excused from performing same-sex partnership ceremonies because of her faith, and Gary McFarlane, a Christian counselor terminated for gross misconduct for refusing to counsel same-sex couples regarding sexual relations problems. The outcomes of these companion cases will have a radical effect on the legal landscape regarding the interpretation of non-discrimination laws and conscientious objection for Christians in Europe.

Speaking of landmark cases, let us turn to Lautsi v. Italy, perhaps the most controversial religious freedoms cases in recent memory.

(d) Lautsi v. Italy

From a practitioners’ perspective, I cannot think of a case more divisive than Lautsi v. Italy. Let me start with a procedural overview for those not familiar with the history of the case.

The case was brought by Soile Lautsi, a Finish-born Italian, who brought the case within Italy to have crosses removed from the public school where her two children attended. The Constitutional Court of Italy determined that it did not have jurisdiction over the case, stating that the subject matter of the case was administrative rather than constitutional. An Italian administrative court thereafter upheld Italy’s policy concerning the placement of crosses in public schools. Unsatisfied, Mrs. Lautsi took her case to the Second Chamber of the European Court of Human Rights.

It should also be noted that the first attempt to have the crosses removed was in a meeting of Mrs. Lautsi’s school board where a democratic vote was held and the idea overwhelmingly voted down. It should also be noted that her husband brought this motion. I note this only to emphasize how political this case really was as the choice of Mrs. Lautsi instead of her husband as the applicant before the European Court was not an accident. Mrs. Lautsi being foreign born and the mother made a far more sympathetic plaintiff then did her husband.

The European court held unanimously on November 3, 2009 that Italy breached Protocol 1, Article 2 of the European Convention of Human Rights because, the court claimed, the presence of the crosses acted to indoctrinate children into the Catholic faith. The judgment also held that Mrs. Lautsi’ religious freedom under Article 9 was violated as she had a right to raise her children absent of any religious faith. As a result of the ruling, Italy filed and was granted an appeal before the Grand Chamber of the European Court.

The Grand Chamber is basically a super Supreme Court and answers appeals of the highest importance and sets the law for Europe on how to interpret the European Convention. ADF acted as a third party on behalf of 33 Members of European Parliament from 11 EU Member States.

On March 18, 2011 the judgment of the Grand Chamber came down. To give you an idea of the scope of the shift in the Court’s thinking it is best to provide the numbers in how the judges voted. In the 2009 judgment by the Second Section of the Court, with 7 sitting judges, it voted 7 to 0 that there were violations of Protocol 1, Article 2 on Education and 7-0 that Article 9 on freedom of thought, conscience and religion was violated. On March 18, the Grand Chamber on the same facts and same law, sitting as 17 judges, ruled 15 judges to 2 that no violation of the education protocol occurred and 17 judges to 0 that Article 9 need not even be examined. The end result is that Italy would continue to be allowed to have crosses displayed in public schools.

Several points about the judgment and how it reflects current trends in European jurisprudence. First, I think that no one can argue that this case was not purely politicized from day one. Nor can anyone say that the Court is not susceptible to public and political pressure. With such a powerful backlash against the decision it was not surprising that the original judgment was overruled. What was shocking for me was how overwhelmingly the court changed its opinion going from finding a unanimous violation to then almost unanimously finding no violation. Again, this was on the same facts and the same law. So basically, such a shift means one of two things: (a) that the judges of the second section were completely incompetent and completely misunderstood the law or (b) that both judgments were political in nature.

Second, to refute the calls from the secular left at the European level, the Lautsi judgment does not reflect the rise of the Christian right in Europe. This is obvious from the fact that probably even those of us in this room cannot agree as to whether the court was right or wrong in its judgment. The fact is the European Court has been pushing very strongly towards freedom from religion as opposed to freedom of religion for many years now. Examples abound such as the Folgero and Others v. Norway case involving opt-outs of religious education; the Valsamis case involving a Jehovah’s Witness child suspended from school for not attending a military parade against his religious conscience; and the Konrad case which held that Christian parents could not home educate because it could set up parallel societies of what the court implied to be „normal” people and „fundamentalists”. If anything, Lautsi represents a backlash to these types of decisions where religious freedom has been taken as a second class right. Lautsi is a recalibration of the religious freedoms meter towards the status quo.

Third, despite the divergent beliefs among Christian over the decision, one thing is important to recall. That a judgment against Italy at the Grand Chamber would have been a „grand” disaster. A look at the American model is a great example where the removal of school prayer and religious symbols from schools quickly led to even children not being allowed to have Bibles in some public schools and children being refused to have their own school prayer at recess time. It is a slippery slope and the judgment would have had far reaching consequences of removing Christianity from the public square.

Number four, while I do not believe Lautsi stands for the uprising of a religious right, I think it does show how a collaborative effort among Christians appealing to the loss of our religious liberties exemplifies that united together we can push the ball forward for religious freedom. This has also been very true on the issue of persecution of Christians and discrimination against Christians which are matters that have risen to prominence in the last year.

Finally, with regard to emerging religious freedoms threats, let us turn to Europe’s attack on parental rights.

(e) Parental Rights

One facet of religious freedoms people do not often see so readily because it is categorized more frequently with family rights, is the attack on parental rights. However, when analyzed closely, this attack is amongst the most dangerous because it strikes at parents rights to raise their own children according to their own religious and moral convictions. What is really at stake in this fight, are the hearts and minds of our youngest and most vulnerable. Ideologies from the left who wage this war see that if they can convert the next generation without interference from parents, then they will have won the battle over social policy. Several countries stand out to this extent.

First I would like to talk about Germany which has had major problems over recent years with parental rights issues. Germany is an interesting case study because the country as a whole is held up by many for its rule of law and good reputation. However, many parents have experienced the dark side of German politics. In Germany, state education is mandatory for all children under the age of 16. This means that these children must attend either private or public schools with no exceptions. The German government also made mandatory „sexual education” classes. The content of these classes differs in each of the different provinces of Germany.

In Salzkotten, the education board has chosen a particularly radical „sexual education” programme which is mandatory for all children between the ages of 9 and 10. This means that there are no exceptions to attending and the content is the same whether the child attends a private Christian school or a state public school. The classes are three days long and they surround an interactive sexual education play which basically teaches children that if something feels good then you should try it.

I represent 10 Christian parents from Salzkotten who told the state that they would not allow there 9 and 10 year old children to be so sexualized at such a young age. They said that such teaching compromised their ability as Christian parents to teach their children proper Christian morals and that they wanted to teach their own children their own Christian sexual morals. As a result of the parents refusal to have their children attend the radical sexual education play, the German government fined the 10 parents more than 1000 Euro each (that is more than 2000 euro per family). The parents refused to pay the fines saying that to fine them for exercising their most basic parental rights and right to religious freedom was a clear violation of the European Convention of Human Rights. As a result of their refusal to pay, all 10 parents were sentenced to spend more than 40 days in jail. When they were released the government again tried to make them have their children attend the classes and again fined them. At this time, most of the 10 parents are either serving or have served their second jail sentences for standing up for their children’s well-being.

The cases are currently before the European Court of Human Rights in Strasbourg. I have recently filed several briefs for the families to classify the cases as an emergency because of the German government’s insistence in jailing these courageous parents.

In Nuremburg, Germany I have had another shocking case involving a young girl named Melissa Busekross. Melissa was 15 years old at the time and had been attending state schools her entire life. She was a good student in all of her classes except with one teacher. With that teacher she failed two classes. The school asked that she be held back an entire year and her parents thought this was not fair as she should not suffer because of one bad teacher. So the parents decided that they would educate her at home because she would progress and learn much faster if they focused on her individual needs. They also did not like the disruptive and unchristian environment in her school. The school board’s reaction to this decision was swift and ugly. The school took the matter to court and the court ordered that 15 year old Melissa be taken by police force to the Nuremberg mental hospital and kept there for several months. At 7:00 in the morning with no warning police surrounded Melissa’s house and took her into custody like a common criminal as her parents watched helplessly. Melissa made several failed attempts to escape but to no use. They had diagnosed her with what they called „school-phobia„ or the fear of going to school.

The story does not end in Germany. I have a similar case in Sweden involving a loving family who also wanted to home educate their six year old son Domenic. The difference between this case and the Melissa Busekros case is that at this time home education was legal in Sweden and young Domenic met all the criteria to be allowed to home school.

Domenic’s father is a micro-engineer and Swedish. His mother is from India. The family had a life long dream of moving to India for them to do missionary work with Indian orphanages where Domenic’s father Christer would teach them about economics and help them to live more efficiently. This would also have been a huge benefit for Domenic because he would be close to his mother’s family and get to see an entirely different side of the world than most any other child his age would.

Domenic’s parents thus went to the local principal and explained their plans to leave to India. They asked if the school could provide textbooks for Domenic because it was important that their son learn both a Swedish and an Indian education in case they ever moved back to Sweden. The principal not only refused this very reasonable request he called the local school authority and reported that the parents’ refused to have their son learning any education whatsoever. When the parents were already on the airplane in Stockholm ready to fly to India the police came on board the plane with a child welfare officer and took Domenic from his parents. In essence the state kidnapped Domenic who was also a lawful citizen of India and gave him to a foster family. It has been more than a year and a half that his parents have tried everything in their power to get back custody of their son. The response of Sweden has been to give them even less time with their son and to try and terminate their parental rights all together. And even worse, the more media attention the case gets and the more embarrassed the Swedish child services get the more problems they cause for this poor family.

There are many, many more examples but just to give you an idea of how Western Europe has been poisoned by this mentality I will give you just one more example from Spain. The Zapatero led government in Spain initiated a new controversial curriculum for all students known as „Education for Citizenship”. There is almost no quality control over the subject which is implemented differently in the different regions of Spain. In some regions the textbooks for the classes promote homosexual behaviour and other forms of deviant sexual behaviour with graphic cartoons. In other regions, the textbooks promote communism. And yet in other regions, the textbooks use cartoons which make fun of Jesus Christ or of the Roman Catholic church in the most inappropriate ways.

50000 parents in Spain filed formal complaints with the government saying that they wanted to at least have the option to have their children removed from this offensive class. The Spanish government said no. Two thousand parents brought lawsuits against the Spanish government in order for them to be allowed to remove their children from the classes. The Spanish government still said no. We now co-counsel a case with Spanish allies with 305 parents at the European Court of Human Rights demanding that Strasbourg intervene and allow these parents to be allowed to exercise their natural parental rights and protect their children from these offensive classes.

The law is very clear on the issue of what rights parents have in raising their children. The United Nations Convention on the Rights of the Child clearly states that among the most important rights of the child, besides the right to life, are precisely the right to parental love and the right to education. The Convention also explicitly states that parents, being the ones who love their children most, are those most called upon to decide on the education of their children. This guarantee requires that the State respect the right of parents to educate their children according to their own religious or philosophical beliefs (beliefs which would include pedagogical beliefs). This right has also been codified by Article 18(4) of the International Covenant on Civil and Political Rights, Article 5(1)(b) of the Convention Against Discrimination in Education, Protocol 1, Article 2 of the European Convention of Human Rights, Article 26(3) of the Universal Declaration of Human Rights, and Article 13 of the International Covenant on Economic, Social and Cultural Rights.

Article 2 of the First Protocol of the European Convention of Human Rights explicitly specifies that the state shall respect the right of parents to ensure education and teaching in conformity with their own religious convictions. The scope of this clause is broad and encompasses all methods of knowledge transmission and every type of educational structure including, moreover, those outside the school system. The rights of parents to educate their children according to their own religious beliefs and desires as to what may be in their child’s best interest must be safeguarded in order to provide the possibility of pluralism in education, this being essential for the preservation of a democratic society.

Again, I reiterate, governments cannot discriminate against people, including parents, simply because of their Christian convictions. A decision in a home education case several years ago named Konrad v. Germany, really captured just how institutionalized this prejudice against Christian belief is. The Court, ruling the case inadmissible, deemed that home education for Christians had the potential effect of setting up „parallel societies”. If we really unpack what the court meant by parallel societies, it is clear that they meant that home education among Christians in Germany would set up conflicting elements of society: one „normal” and the other „fundamentalist” and therefore abnormal. When looking at language like this, the fact that good Christian parents are being put in jail to protect their children and that governments like that of Zapatero are working so hard to deny opt-outs from classes aimed at social engineering, it cannot be denied that this threat to religious liberty is at its zenith.

(f) Conclusion

In conclusion, I have given you a lot of information to think about here regarding the current threats against Christians and about our options for victory and need to organize.

Undoubtedly, our opponents are organized and fierce. As such, we must be even more organized and fiercer. As participants in this conference we have a golden opportunity to develop a cohesive and cooperative strategy for religious freedom in Europe and internationally.

No single individual or organization can win this battle alone just like our opponents did not conquer all of the ground they did individually. This is a battle that cannot be lost and this is a battle that will undoubtedly define our generation. As we all well know, in order to win these battles, we will require a team effort. And so I urge all of us here to use this time effectively, both inside of these meetings and out, to set a cohesive strategy for victory.

We must strive to see laws that affirm religious liberty; protect life from conception to natural death; defend the family; and preserve marriage as being between one woman and one man. We must reclaim what we have lost; protect what we have; and shape a future where Christian religious freedom will be protected and affirmed! So my closing question to you is: you now have the challenge before you… How will you respond?

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ROGER KISKA – is legal counsel for the Alliance Defense Fund, a legal association dedicated to the protection of religious freedom through the law. The Alliance Defense Fund is accredited with the United Nations, Organization for Security and Co-Operation in Europe, the European Parliament and the Fundamental Rights Agency. Kiska received his law degree from Ave Maria School of Law and his Masters Degree in Theology at Vanderbilt University. He is among the leading religious liberties lawyers in Europe with the majority of his practice being before the European Court of Human Rights.

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