Dezbateri constituționale

The place of religion in the Romanian public space:
Constitutional (dis)continuities and uncertainties
 

IULIANA CONOVICI
[The University of Bucharest]

Abstract:
This article includes a reassessment of the Romanian constitutional definition of the place of religion in the public sphere, from 1866 to the 2003. We seek to understand how and to what extent constitutional texts include the defining elements for the public understanding and definition of the place of religion in the public sphere in Romania, and what place they occupy the constitutional arrangements of the Romanian State.

Keywords: Constitution; Church autonomy; State control; freedom of religion; Communism; post-Communism

In the post-communist Roma­nian public space, Church-State relations took a long time to be shaped in a coherent and complete legal definition. Not until 2006 were the Romanian public institutions able to adopt and promulgate a Law on the general status of denominations. Meanwhile, a new Constitution had been adopted (1991) and considerably revised (2003), but its provisions concerning the status religion remaining largely unchanged.¹

In this paper, we shall address the legal definition of Church-State relations in the Romanian public sphere through the lenses of its Constitutions. Constitutions are fundamental laws, and are conceived to address and (possibly) legally bring solution to the main political problems of their time, in an arrangement aiming to satisfy the highest possible number of political and social actors. We seek to verify to what extent constitutional provisions on religion and the State were constructed and understood as defining elements for the public understanding and definition of the place of religion in the public sphere in Romania. Do they still perform the same function to this day, or has their situation changed? The matter will be addressed in historical and comparative perspective. Insights from other constitutional traditions may also prove useful.

Established Churches: rights, recognition, and State control

The first Constitution of the Kingdom of Romania, adopted in 1866² included clear provisions concerning the status of religions. Like its 1831 Belgian model (art. 14)³, the Romanian constitution proclaimed (art. 5, 21) the right to freedom of conscience and the free exercise of religion, inasmuch as these came not in violation „public order or public morals”.

Other provisions were specific to the Romanian situation. The „Eastern Orthodox religion” is the „dominant religion of the Romanian State” (art. 21). In a bid for the Orthodox Church’s autocephaly, the latter is declared „independent from any foreign [Episcopal] see”, but should preserve the faith (“dogmatic unity”) of the „Ecumenical Church of the East” (i.e. the Church of Constantinople). Its dominance was confirmed by the rules of succession to the Romanian throne: the Constitution made it mandatory for the ruling dynasty to raise their children in the Orthodox confession (art. 82), a provision that would remain unchanged throughout the entire history of the Romanian Kingdom.

The Romanian State set its own rules for the dominant confession (art. 21). A unified Synod would administer the „spiritual, canonical and disciplinary affairs of the Romanian Orthodox Church”, according to its tradition and to a special law. The unification of the Orthodox Church would be the expression of a unified State, and its claim to autonomy set the stage for Romania’s bid for independence from the Ottoman Empire and emancipation from the influence of Russia. But the State was to be the deciding factor in the organisation of the Orthodox Church: it would even set the rules for the election of Orthodox metropolitans and bishops, and on the authority of the unified Holy Synod. The Church would hence be forced into a weak negotiating position.

The 1866 text followed its Belgian counterpart with respect to the question of the civil status (though the Belgian Constitution, art. 16 only mentioned marriages). The civil registration of births, marriages and deaths had already been proclaimed by the Civil Code in 1865. The Constitution made it (art. 22) mandatory to obtain civil registration before any form of religious „benediction”. Curiously, it required that a form of religious ceremony be mandatory for marriages⁴. The obligation would be dropped in 1923, but taken up again and expanded in the 1938 Constitution (art. 20)

Art. 76.2 of the 1866 Constitution also established that the Orthodox metropolitans and bishops were to be ex officio members of the Senate, and later Constitutions would extend this privilege to heads of several minority religions. The principle was to be abandoned with the advent of the Communist regime, and would never be reinstated after 1989.

The 1923 Constitution⁵, adopted after the unification of Transylvania, Bessarabia and Bucovina with the Kingdom of Romania, following the First World War preserved several of the main principles enshrined in the 1866 text, but it had to take into account the dramatic change in the religious structure of the Romanian population.

Greater Romania was a multi-confessional, multi-religious country. It had important religious minorities in all its new provinces. Therefore, the constitutional text registers a number of non-discrimination provisions (art. 5, 7, 8, 28, 29, 119). Freedom of conscience was deemed „absolute” by art. 22. This Constitution remained the one that emphasised the most clearly the importance and centrality of rights and freedoms. It also stated that religious, ethnic and linguistic differences were not to be an obstacle to the acquiring and exercise of civil and political rights (art 7). Indeed, the international recognition of Greater Romania had been obtained under the condition of the regularisation of the legal status of Romanian Jews⁶.

The Romanian Army was based on conscription, and military service was mandatory „for every Romanian, without distinction of ethnic origin, language of religion” (art. 119). The possibility of conscientious objection was not even taken into account. Otherwise, the Romanian State guaranteed (art. 22) the „freedom and protection” of all religions, as long as these respected the law, public order and public morals. (art. 22, par. 2). 

The significant change in the public status of religions came with the following provisions of art. 22. Acknowledging the importance of the major Churches of the ethnic Romanian population, the Romanian Orthodox and the Greek-Catholic Church were declared „Romanian Churches”. The two were to be privileged with respect to the others: the Orthodox Church was still deemed a dominant Church „in”, but no longer „of” the Romanian State, and its dominant status was directly correlated to the fact that it was „the religion of the great majority of Romanians”. The Greek-Catholic Church was granted „priority” over other denominations, though the text did not make it clear what that would entail. The general status of the various denominations would be settled by law (art. 22, par. 8). The situation of smaller or the new denominations would also be concerned by prescriptions concerning the association rights, which did not include „the right to create legal persons”, a provision that would allow the Romanian State to try to block the creation of new religious associations⁷.

The Romanian State re-asserted its desire to control and even reform the administration of the Orthodox Church, which was undergoing a second process of unification. The preference of the State for the Transylvanian model of Church administration, with its mixed clerical and laymen’s governing bodies is set forth in art. 22, par. 6 of the Constitution. The later 1925 Law for the organisation and functioning of the Romanian Orthodox Church, announced in art. 22 par. 7, would confirm this choice. Par. 7 of this article would also explicitly state that the Church would be self-governing, but „under State control”. The Romanian Orthodox Church would still be treated, constitutionally, as a State church – which it was.

Art. 72 of the Constitution decided that, because of their „high status in the State and Church”, Greek-Catholic metropolitans and bishops were also to be senators, as well as the heads of all religious denominations „representing” more than 200,000 adepts (one per denomination), and the „higher religious representative” of the Muslim community would also benefit from the same status⁸.

In 1938, the new, authoritarian Constitution⁹ of King Carol II preserved the main elements of pre-existing Church-State relations, but the nature of the regime itself had changed. Non-discrimination was limited to equality before the law (art. 5) and to the duties that „all Romanians” had towards the State, namely „to consider the Motherland as the highest grounding of their purpose in life, to sacrifice themselves for the defence of its integrity, its independence and its dignity” (art. 4). This amounted to a mutation of the new political regime into a form of secular religion.

Rights were to be correlated with duties (art. 5) and limited by political considerations. A right to conscientious objection was explicitly disavowed (art. 5, par. 2), a clause that illustrated the fundamental suspicion of the Romanian State towards the new Protestant and Evangelical denominations whose members refused military and other forms of public service. Freedom of conscience and free exercise of all religions were guaranteed, but could be limited in the name of „Security of the State”. In fact, this small addition amounted to an invalidation of the main principles of religious freedom, and was used by the Carol II and Antonescu regimes for persecuting a number of new denominations¹⁰.

The status of the two „Romanian” Churches remained the same. Membership of the religious hierarchy in the Senate (art. 64) followed the 1923 text, but named the Patriarch and omitted the head of the Muslim community¹¹. But political associations on religious grounds were banned (art. 8, par. 3). The clerical personnel of all denominations was forbidden to engage in political „propaganda”, under any circumstances (art. 8, par. 1-2). This provision was directed first and foremost towards the Romanian Orthodox clergy, hundreds of which had been members or sympathised at that time with the extreme right Movement of St. Michael the Archangel, as the Iron Guard ideology combined anti-Semitism, authoritarianism, political nationalism and voluntarism with a distinctive Christian (Orthodox) flavour. Secondarily, it also had an impact on supporters of other political parties.

Separation, persecution and expulsion from public life

After World War II, the first Constitution of the Popular Republic of Romania¹², like its predecessors, proclaimed equality before the law (art. 16) and non-discrimination with respect to electoral rights (art. 18), freedom of conscience and – for the first time in these terms –  „religious freedom” (art. 27, par. 1). Yet this text has fewer guarantees of the free exercise of religion even than the 1938 Constitution. The text is more vehement than its predecessors in making it a conditional right: religious denominations are „free to organise themselves and function freely” only „if their ritual and practices are not contrary to the Constitution, to public security or public morals” [my italics – I.C.]. The negative conditional strongly emphasised the suspicion and even hostility cast on any and all religious denominations. Indeed, in the same year, the Communist regime would destroy the Greek-Catholic Church, by „dissolving” it into the Orthodox Church, according to the existing Soviet practise, and would seek to eliminate religion from most aspects of public life.

The 1948 Constitution is the last to mention the Romanian Orthodox Church, „autocephalous and united” (art. 27, par. 4). It was a leftover from previous Constitutions, and appeared out of place in this new constitutional framework, for the State did not profess any other distinctive constitutional commitment towards it.

Art. 27 eliminated the entire system of religious and confessional education, hence restricted to a handful of State-controlled theological institutions for the education of the future clergy (par. 3). All religious denominations were heavily hit. The institution of the Senate had disappeared, and with it the constitutional right of representation of religious denominations in the legislative bodies of the Romanian State. Religious ceremonies were no longer taken into consideration. The sole allusion to them is in art. 26, par. 3, stating that „only civil status documents by State authorities are valid”. The corresponding religious ceremonies were no longer to be discussed explicitly.

A constitutional reform in 1952 brought with it a few changes in the treatment of religion¹³. The new text included a guarantee of the freedom of conscience and free exercise of religion (which is here also identified as an individual rather than a collective right), but „religious freedom” is no longer mentioned. The conditional clause for the free organisation of religious denominations was completely omitted, for the first time in the constitutional history of Romania, but the omission was formal.

Art. 84 emphasised the importance of the ban on confessional education. Before it, it intercalated a new formula, inspired from the 1936 Soviet Constitution (art. 124) stating that „[T]he school is separated from the Church” (art. 84.3), pointing to the elimination of religious education classes from public schools¹⁴. It is the first Romanian Constitution to mention a (limited) principle of separation of Church and State. The Communist regime was committed to disrupt the transmission of religious traditions and memory in a systematic manner. It thus advocated, constitutionally, a severe secularising policy.

In 1952, a Ministry of Religious Denominations is for the first time mentioned by name in the text of the Romanian Constitution (art. 50). Though it had been an organism of State control and interference in the affairs of various religious denominations since its creation in the 1830s, the institution acquired a particularly sinister reputation during the Communist regime as an organism of public repression of religion and as an instrument of the Securitate.

These provisions should be correlated with other coercive constitutional principles. Thus, while acknowledging the existence of a „private-capitalist segment” of the economy, including the „households of the kulaks” (“gospodăriile chiabureşti”) and the private commercial and industrial enterprises, the text announces a „consistent” policy of „limitation and elimination” of this segment (art. 11). As the Church and many monasteries were landowners, they would also be legally qualified as „chiaburi” (kulaks) and would fall under the State’s policy of destruction of the private sector¹⁵.

The State had also decided to „render inoperative and repress the enemies of the people”, seemingly as a part of its task of ensuring the „internal security” of its citizens (art. 17 e) ). The limitation attached to the clause of non-discrimination (including on religious grounds and professional status) with respect to electoral rights (art. 94 on the election of deputies to the Great National Assembly) should also be connected to this explicit repressive policy of the regime. Art. 94 stated that the „mentally deranged” and judicially „condemned persons” would be excluded from electoral rights (art. 94). These repressive policies would hit the Churches and their members very hard indeed. Many priests, pastors, laymen, and bishops were constantly harassed, arrested, subjected to constant surveillance and persecutions, and many died in prison or in enforced confinement because of the hardships and ill treatments they endured¹⁶.

A new Constitution in 1965¹⁷, meant to establish the Socialist Republic of Romania, globally granted and guaranteed „equal rights” and banned the limitation of their exercise on grounds of nationality, gender, or religion (art. 17). It is the most laconic of all Romanian Constitutions on religious issues. It formally guarantees freedom of conscience to Romanian citizens, understood as freedom to „profess or not any religious belief” (art. 30. par. 2)¹⁸. Free exercise, freedom of organisation of religious denominations and the provisions on the separation of Church and School, with the ban on confessional schools reproduce the 1952 text (art. 30).

Curiously, the sacred is also mentioned in the 1965 text, as an attribute of the citizens’ duty to defend the „Motherland” (art. 41). By using this hieratic language, the Constitution thus proclaimed the regime’s national-communist turn: a quasi-religious devotion towards the country and the regime are required. Notably, the 1991 and 2003 Constitution would reproduce this peculiar flavour, by sacralising „loyalty to the country” (art. 50/54). „The Motherland” and „the country” are thus anthropomorphised¹⁹ and thus taken into an extra-juridical realm²⁰.

A return of religion to the public space?

In 1991, the first Constitution of the post-Communist state intended to signify a change of regime, though some suggested that this remained, at least in 1991, only nominal²¹. Changes in the field of religious freedom and the status of denominations were not deprived of ambiguity.

On the one hand, the 1991 Constitution placed religion amongst the elements of identity to be respected, protected and even supported by the State (art. 4.2, 6, 7, 29, 32.7, 39.2.a), but also to be guarded against (art. 29.1, 2 and 4, 30.7)²². The one clear non-discrimination clause where religion is explicitly mentioned is connected to one attribute of citizenship – that of having Romania as a „motherland”.

Art. 29, the main article dealing with religious issues, is a mix of continuity and innovation. For the first time, freedom of conscience is directly associated with freedom of thought and freedom of opinion. The article names the types of freedoms generally associated with individual beliefs: freedom of conscience (par. 2), freedom of „religious belief” (par. 1) – which cannot be restricted, and the right of tutors to educate children according to their own beliefs, as well as freedom of worship (implicit in the others, and par. 4).

In the 1990s, the opening of the religious „market” in Romania led to the multiplication of religious manifestations of previously marginal(ised) or newer religious movements, and the Greek-Catholic Church re-emerged as well and reclaimed its place in the Romanian public space. These rapid changes had prompted Orthodox Church officials to request the establishment of a constitutional ban on religious proselytising²³. And indeed, a further pluralisation of the religious structure of the population appeared daunting not just to the Orthodox Church, but also to the Romanian state. The authors of the 1991 text (and of its 2003 successor) appeared to have considered religious belief as highly susceptible of creating public disorder by generating inter-religious conflict. While most Romanian Constitutions, except the 1965 text required religious denominations to respect „public order and public morals”, the 1991 Constitution appears to be dominated by the fear of religious conflict. It counts no less than four paragraphs meant to prevent inter-religious strife (art. 29.1, 2, 4 and art. 30.7), and the cautiousness would later be „exported” into the text of the Law no. 489/2006 on religious freedom and the general status of denominations that otherwise advocated a deprivatised model of Church-State relations. It is also the first Constitution that appears to explicitly define religion as a security concern – no longer an ideological threat, but – potentially – a social one.

Apart from this, the Constitution deems religious denominations „free” and states that these may be organised „according to their statutes”, and also to the law (art. 29. 3). This article may well have been a form of public acquiescence to the Orthodox Church’s decision to unilaterally withdraw all the State institutions’ rights to interfere in internal Church affairs²⁴, but it is articulated in the traditional vocabulary 1948 Decree-Law on the general status of denominations that had been constructed in order to articulate State control over religious denominations. These are explicitly declared autonomous with respect to the State, and the latter expresses its intention to support them, amongst other things by facilitating access to religious assistance in public institutions (art. 29.5).

Whereas pre-Communist Constitutions had emphasised the Romanian Orthodox Church’s independence from external jurisdictions, in 1991 the concept of autonomy of religions from the State is for the first time enshrined in a Romanian constitutional text (though it had been present in Laws dealing with the Orthodox Church and/or the general status of denominations for some time). This autonomy, coupled with the „freedom” of religious denominations mentioned above would be the main principles of Church-State relations in the post-Communist period, though, in the Constitution, the term had preserved its semantic ambiguity. The principle of separation of Church and State would no longer be explicitly mentioned in the constitutional text. As it was, the constitutional text is flexible enough to accommodate a wide variety of systems of Church-State relations, as the successive negotiation of Law projects on the general status of denominations would demonstrate.

On the other hand, the 1991 Constitution did not revive any of the previous honorific or status-related titles the Romanian Orthodox Church and/or the Greek-Catholic Church that had shaped the multi-layered, preferential system of Church-State relations of the pre-Communist period. It rather preferred its immediate predecessor’s solution: the text names no dominant, national or Romanian Church – no Church is mentioned at all. However, informal distinctions between denominations, due to long-term practices have been tacitly perpetuated, leading to the complex legal and informal system of differential treatment of the various denominations²⁵.

Art. 29. 6, dealing with the right of parents or tutors to educate their children according to their own beliefs is to be correlated with art. 32.7, whereby the State „guarantees the freedom of religious education, according to the specific requirements of every denomination” and proclaims that „[i]n public schools, religious education is organised and guaranteed by law”. The constitutional principle of the Communist state is here reversed: religious education is back in public schools, and the text seems to suggest confessional religious education. State support for religious assistance would also be a first in the constitutional text, and its inclusion in the Constitution was probably meant to signify a break with the Communist past.

Access to religious education and religious assistance in public institutions in the constitutional text had been one of the proposals of the Romanian Orthodox Church to the Constituant Assembly²⁶, together with an invocatio Dei, with a religious formula for swearing in dignitaries, and the re-establishment of interwar provisions on the membership of religious leaders in the Senate. The last had been flatly refused: their number was deemed too high. God himself is only called upon to assist the President of Romania at his swearing in²⁷. But even this marginal evocation of the Divinity was a novelty.

Concluding remarks

Constitutions have been the loci of definition Church-State relations for the successive Romanian political regimes. The analysis of the mix of inertial linguistic mimetism and practical innovation in the successive Constitutional texts provides us with an interesting cross-section of the main issues concerning Church-State relations in every constitutional „period”.

In pre-Communist Romania, the main concern of the State had been to achieve the unification and uniformisation of the Romanian Orthodox Church. This passed through a clearly asserted State control over the internal administration of the Orthodox Church²⁸, despite the latter’s efforts to preserve some degree of self-government. At the same time, the State made efforts to accommodate (more or less begrudgingly) the growing plurality of the country’s religious structure.

A comparison of the constitutional texts reveals the fact that it was not State control over the activities of religious denominations that best defined Church-State relations during the Communist regime, for this had been inherited from the previous era. The advent of Communism had rather changed the character of Church-State relations from a composite pattern of benevolence and distrust towards various denominations to one of universal suspicion and to the persecution of all religions. State control was aggravated by State oppression, and, though some denominations fared better than others, none was exempt from its ideological anti-religious drive. The Constitutions of the period signify a will to eliminate religion from the public sphere and, though the texts do not make the direct association, to force it into decline.

The fall of Communism made the Romanian state recant its persecutor status and grant religion access to several areas of the public space. It also allowed for the development of a new notion of autonomy of religions from the State itself – a State that would no longer impose its decisions in their internal affairs. However, the 1991 (revised 2003) Constitution did not provide the clear principles according to which Church-State relations are to be organised, as it had done in previous texts. This may be attributed to the lack of a consensus on their very nature, a problem that has only been decided only in the 2006 Law no. 486 on religious freedom and the general status of denominations.

Remarkably, the 2003 revision of the Constitution did not change anything in the articles concerning the status of religion in the public sphere²⁹. It has been argued that „the 2003 revision may be regarded as an attempt to graft on an unchanged technical-juridical structure the elements of a potential preamble”³⁰, which however did not affect the articles dealing with religious issues. The 1991 text and its 2003 modified version have constantly come under fire for their incapacity to provide a common and symbolically powerful ground for the establishment of a new political community. Reflexions on possible reforms of the current Constitutions have included a possible return of the ecclesiastic members of the Senate³¹; others have suggested the possibility of a reference to God as a source of shared values in the public space³²; but, on the whole, the constitutional regulation of the public status of religion seems to have reached a point of normalisation.

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Online resources
Constitutions of Romania (texts accessed online in September, 2012) :
1866: Online at: http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=37755.
1923: Online at: http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=1517
1938: Online at: http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=9206
1948: Online at: http://www.rogoveanu.ro/constitutia/const1948.htm     
1952: Online at: http://www.rogoveanu.ro/constitutia/const1952.htm
1965: Online at: http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=37735
1991:Online at: http://www.cdep.ro/pls/dic/act_show?ida=1&idl=1           
2003: Online at : http://www.cdep.ro/pls/dic/site.page?id=339.
Constitution du 7 février 1831 (Belgium): http://mjp.univ-perp.fr/constit/be1831.htm
Constitution of the USSR, 1977: http://www.constitution.org/cons/ussr77.txt

IULIANA CONOVICI – Cercetător postdoctoral, Facultatea de Știinţe Politice, Universitatea din București.

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