The report by Ahmed Shaheed, the UN’s Special Rapporteur on freedom of religion and belief, analyses the relationships between State and religion and their impact on freedom of religion or belief. He stresses the obligation of States to act as impartial guarantor of freedom of religion or belief to all regardless of the relationships between State and religion or belief.
Here are some extracts from the report:
States in every region are increasingly confronting the challenge of safeguarding the right of all persons to freedom of religion or belief while protecting a range of other rights. Establishing a sound body of laws and policies for protecting freedom of religion or belief often involves balancing a range of fundamental rights guaranteed by international human rights instruments, amid manifold political, economic, social and cultural pressures.
Heightened security concerns emanating from ongoing acts of violence carried out by extremists… have resulted in greater State interference with religious expression. Religious minorities, in particular, are increasingly facing laws that in effect restrict their freedom, either alone or within a community, to manifest their religion or belief in worship, observance, teaching and practice.
The ever-evolving nature of the relationships between State and religion is of significance to those seeking to promote protections for freedom of religion or belief, because the degree to which States are entangled with various religions or beliefs has far-reaching implications for their disposition and ability to guarantee human rights, especially those rights exercised by persons belonging to religious or belief minorities.
All States support, regulate or limit religion and belief to some extent. Some Governments declare official religions; other Governments give preferential treatment to one or more religions; Governments also control or restrict religious organizations and practices within their domain; and some Governments single out the manifestation of certain religions or beliefs for restrictions that are not placed on all adherents within their territory.
A 2017 study, which focused on the official religion policies and reported State practices of all 193 States Members of the United Nations, concluded that some 42 per cent of States either declared official support for one religion (21 per cent) or conferred favour onto one or more religions (21 per cent).
States with official religions, typically, support religion more strongly, but declaring an official religion does not always lead to high levels of actual support for that religion. Consequently, a close examination of the practices that Governments adopt is also essential to understanding the implications that these relationships pose for freedom of religion or belief beyond what the mere existence of an official religion implies.
Social hostilities were the lowest in States with a negative view of religion in public life, with only one State having reportedly experienced a “high level” of social hostility motivated by religion, while 44 per cent of those States with an official religion were recorded as having experienced “very high” or “high levels” of social hostilities.
International human rights treaties are reticent on the sort of relationship a State should have with religion or belief. They do, however, impose a duty upon States to be impartial guarantors of the enjoyment of freedom of religion or belief, including the right to freedom from religion, for all individuals and groups within their territory and subject to their jurisdiction. The Human Rights Committee, in paragraph 9 of its general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, states clearly that the fact that a religion is recognized as a State religion or that its followers comprise the majority of the population should not effectively impair the enjoyment of their rights under the International Covenant on Civil and Political Rights, including articles 18 and 27, or result in discrimination against non-believers or adherents to minority religions.
The Human Rights Committee notes that this duty involves both negative obligations, like refraining from perpetuating discriminatory acts, and positive duties, such as the obligation to protect against third-party infringements, including incitement to religious hatred. States are also obliged to ensure that individuals belonging to minorities are able to practise their religions or beliefs or receive public support in the same manner as adherents to a State religion.
Where a State explicitly associates itself with particular religion(s) or truth claim(s), members of unaffiliated groups invariably suffer various forms of discrimination — including direct, indirect, or both — which have a negative impact on their ability to exercise their freedom of religion or belief. A State must, therefore, ensure that the “purpose” or “effect” of its entanglement with religion does not lead to “the nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis”.
The Special Rapporteur also notes with concern the increasing trend by some States, groups and individuals, to invoke “religious liberty” concerns in order to justify differential treatment against particular individuals or groups, including women and members of the lesbian, gay, bisexual, transgender and intersex community. This trend is most often seen within the context of conscientious objection, including of government officials, regarding the provision of certain goods or services to members of the public.
It should be noted, however, that the jurisprudence of the Human Rights Committee and the regional human rights courts uphold that it is not permissible for individuals or groups to invoke “religious liberty” to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere.
Of significant note is the frequency at which States’ adherence to faith-based claims affect their capacity to protect the human rights of women. The voluminous religious-based reservations entered by States parties to the Convention on the Elimination of All Forms of Discrimination against Women are one case in point. The breadth of impositions on women’s rights justified by States in the name of religion, including those which limit their full participation in political, social and economic life, perpetuate an environment that enables harmful practices against women and prevents society from achieving gender equality. This includes the denial of access to reproductive health services and refusals to provide adequate legal and policy safeguards against domestic violence manifested in the form of marital rape and so-called “honour crimes”.
The Special Rapporteur would like to reiterate that freedom of religion or belief can never be used to justify violations of the rights of women and girls, and that it can no longer be taboo to demand that women’s rights take priority over intolerant beliefs used to justify gender discrimination. It would be contrary to both women’s human rights as well as freedom of religion or belief provisions to allow one set of rights (i.e. women’s rights) to be undermined on the basis of claims made in defence of the right to freedom of religion or belief.
Criticism of religion, religious leaders or doctrine, which is often an exercise of freedom of expression, is not a violation of freedom of religion or belief.
According to article 18 (3) of the Covenant, which must be strictly interpreted, all limitations on freedom of religion or belief must be prescribed by law and they must be necessary and directly related to pursue a legitimate aim: the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others”. These restrictions must also be proportionate to the realization of the legitimate aim and, therefore, the least restrictive among all the adequate measures available.
Conclusions and recommendations
All States, regardless of their relationship with religion, face challenges in the field of human rights. However, aspects of two such relationships discussed in the present report appear highly incompatible with the range of States’ obligations to uphold freedom of religion or belief. These include those of “religious States” and those with a negative view of religion’s role in public life. The extent to which States support an official religion, the degree to which they enforce that religion and the extent to which they control, regulate and restrict the religion pose significant implications for States’ disposition to promote and protect freedom of religion or belief. On the other hand, States with a negative view of religion tend to impose restrictions on all religion, including those held by the majority of persons under their jurisdiction. Ironically, even though they represent polar opposite models in terms of support for the role of religion in public life, States that “heavenly enforce” and those that “heavily restrict” religion are both motivated to establish a monopoly for their ideologies and, as such, often require force and generally involve discrimination against those that do not share their views.
States that enforce its official religion have very high levels of restrictions on freedom of religion or belief and often discriminate against persons belonging to religious minorities, women, lesbian, gay, bisexual, transgender and intersex persons, converts or apostates and non-believers. States with a negative view of religion have equally high levels of restrictions on freedom of religion or belief for any individual manifesting another belief contrary to State atheism. In both cases, the nexus of other interdependent and mutually reinforcing rights is invariably violated too, such as freedoms of opinion, expression, peaceful assembly and association. Thus, in these models, even persons belonging to the numerically majority religion may be subject to repression and persecution.
78. States that have preferences towards religion(s) frequently engage in practices that unduly restrict people’s freedom of religion or belief, in particular religious or belief minorities who may be singled out and discriminated against, as a result of a de facto or de jure “hierarchy of religions”. Those that are preferred by the State generally have a historical presence in the country and the preferential recognition accorded to them may be motivated by a desire to include also religious minorities in nation-building. However, this is often accompanied by discrimination against newer religions, including burdensome requirements for registration, along with denial of recognition, or attempts to maintain interreligious harmony through laws that proscribe religious offence or in other ways privilege the religious collective over individual rights.
States that have no identification to religion, being numerically the largest of the three categories, encompass a broad range and diversity of States. The hallmark of this category of States is the stance of treating all religious communities on an equal basis, although they range from those that are more positively inclined towards the role of religion in society to those who seek to privatize religious practice. While many States in this model are predisposed to respect freedom of religion or belief, there are also many challenges, including that of management of conflicts between different human rights. Where there is a high degree of convergence between social values and religious practices, there are fewer clashes between religious freedom and other human rights. However, where there is a plurality of social values, difference-blind policies might de facto create a hierarchy of rights where laws of general effect impose disproportionate burdens on religious minorities, unless there is reasonable accommodation.
While these three broad categories serve a useful analytical function, there are also important distinctions. States with “mild” forms of establishment, i.e. where the attachment is symbolic and shorn of any policy or legal significance, seem to have more in common with some versions of the non-identification model, especially where there are strong commitments to equality and non-discrimination, while at the same time recognizing the positive role that religions and beliefs play in society. Likewise, those in the non-identification category, especially those that privilege doctrinal secularism over religious concerns, and pursue difference-blind policies, risk violating its obligations to respect the freedom of religion or belief of persons belong to religious minorities.
International human rights law imposes a duty on States to be impartial guarantors of the enjoyment to freedom of religion or belief of all individuals and groups within their territory and those subject to their jurisdiction. Moreover, there is no hierarchy of human rights and where freedom of religion clashes with the right to non-discrimination and equality, or laws of general effect, the focus should be on ensuring that all human rights are protected, including through reasonable accommodation. Amid rising diversity, it appears axiomatic that the role of the State as an impartial guarantor of the rights of all is mostly likely to be fulfilled when the State adopts a posture of cooperation and accommodation without identification. Indeed, it is difficult to conceive of an application of the concept of State Religion that in practice does not have discriminatory effects on the variety of “others” that are created.
While many States express commitments to guaranteeing freedom of religion or belief, some of the protections are narrower than those specified in article 18 of the International Covenant on Civil and Political Rights or include limitations that are inconsistent with international law. Some States do not provide any legal guarantees or indeed ban certain religious communities or subject them to burdensome registration processes, which deny them legal personality. The Special Rapporteur recommends that States’ legal framework must be aligned with the guarantees of freedom of religion or belief specified in international human rights law as a universal human right.
Anti-blasphemy laws, which frequently serve to uphold State-sponsored religion or truth claims (existing even in States that do not formally identify with one religion) stifle the enjoyment of freedom of religion or belief, and the ability to engage in a healthy dialogue about religion. They are also used to target political dissidents, humanists, non-believers or any religious thinker who expresses different theological views than the State-sponsored religion. As also called for in several recent international action plans, such anti-blasphemy laws must be repealed as a matter of priority and are incompatible with the Covenant.
The State must recognize that, although there are associational rights, freedom of religion or belief is a right that resides with the individual and not with a group per se. Therefore, anti-conversion laws are inconsistent with the international human rights framework and amounts to an illegal interference with an unqualified right to freedom of thought, conscience, religion or belief.
The right of parents to provide a moral and religious education, consistent with their religious worldviews and in accordance with the evolving capacities of the child, must be fully respected. In this regard, the Special Rapporteur would like to highlight the useful guidance provided in the Final Document of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination and the Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools.
When offering a privileged legal status position for certain religious or belief groups, such a specific status should be accorded in strict conformity with the principle of non-discrimination and should fully respect the right to freedom of religion or belief of all human beings. Privileged positions accorded to religious or belief groups should never be politicized for purposes of identity politics, as this may have detrimental effects on the situation of individuals from minority communities.
States are reminded of their obligation to provide protection to refugees and migrants, regardless of their specific religion or belief. The pretext that refugees and migrants would erode the traditional religious make-up of a country amounts to a “territorialization” of religion, which violates the spirit and the letter of the universal right to freedom of religion or belief. States should also reform family law and personal status law provisions that may amount to de jure or de facto discrimination against persons belonging to religious or belief minorities, for example in inheritance and custody matters. States should establish a policy of public symbolic actions by which they send a clear message that religious or belief minorities are part of the larger society. An example of such symbolic presence is the participation of political representatives in ceremonies held by minorities.
Respect for freedom of religion or belief is closely related to the degree of tolerance and respect for diversity within a society. The Special Rapporteur would like to reiterate the recommendations made by his predecessors on encouraging States to facilitate interfaith communication and to invest in both religious literacy and religious freedom literacy.
Finally, the Special Rapporteur would like to reiterate commitment IV of the “Faith for Rights” framework, which warns against the use of the notion of “State religion” to discriminate against any individual or group as well as against the use of “doctrinal secularism”, which risks reducing the space for religious or belief pluralism in practice. He stresses that States must satisfy a range of obligations, including to adopt measures that guarantee structural equality and to fully realize freedom of religion or belief. In the light of these obligations, the Special Rapporteur echoes the importance of adopting a model for the relationship between State and religion that is in harmony with the concept of “respectful distancing” — i.e. political and legal, but not social, disentanglement from religion — which rests on a “deep grounding of secularity based on human rights”. Such a model ensures “that the State does not resort to religious exclusivity or bias in culture, identity, schooling, or even symbolism for short-term ends and for vested interests, but will continually strive to create spaces of inclusiveness for all as an active and ongoing endeavour”.