Religious Pluralism, Religious Freedom, and the Limits of Tolerance in Three Tolerant Societies Centre for Religion, Conflict and the Public Domain University of Groningen Paul Rasor October 22, 2013

Models of Religion-State Relations Strict separation Religion is seen as a private, personal matter Religious groups are free from state interference and receive no state support State is neutral with respect to religion Classic example: United States Structural pluralism •  State interacts with institutions representing diverse religious and non-religious worldviews •  State may support religious groups

State treats all equally and provides maximum autonomy Classic example: Netherlands

Models of Tolerance/Acceptance of Religious and Cultural Difference Multicultural recognition •  Groups retain their distinct practices and identities •  State subsidizes group institutions on equal basis •  Netherlands from 1970s to mid-1990s (Nederland as gids natie) •  Canada since 1980s Limited/liberal tolerance •  Non-negotiable core values •  Clear boundaries between tolerable and intolerable •  Group autonomy limited by individual rights •  Netherlands since late 1990s; “Dutch liberal intolerance” •  United States?

Religious Freedom Issues 1.  Accommodation of religious difference 2.  Religious group autonomy 3.  State funding of religious schools 4.  Religious hate speech

Issue 1: Accommodation of Religious Difference Basic questions: When must the state accommodate religious practices that deviate from cultural norms or legal requirements? When are religious groups or individuals entitled to exemptions from general laws? Tolerance models: Model of multicultural recognition tends to favor accommodations; Model of shared liberal values tends to disapprove them.

Accommodation of Religious Difference United States Sherbert v. Verner (U.S. Supreme Court, 1963). Seventh Day Adventist who refused to work on Saturdays was denied unemployment benefits. In the absence of a compelling state justification, accommodation is required if the law imposes a substantial burden on religious practice. Employment Division v. Smith (U.S. Supreme Court, 1990). Members of Native American Church were denied unemployment benefits for using peyote. Accommodationist principle abandoned; neutral laws may be enforced no matter how large a burden they impose on minority religious practice. Exemptions may be granted by legislature.

Accommodation of Religious Difference, Netherlands Equal Treatment Act (Algemene Wet Gelijke Behandling)

Section 5 [Employment] 1. It is unlawful to discriminate in or with regard to: a. advertisements for job vacancies and procedures leading to the filling of vacancies; b. job placement; c. the commencement or termination of an employment relationship ... Section 7 [Education] 1. It is unlawful to discriminate ... in providing educational or careers guidance if such acts of discrimination are committed ... c. by institutions which are active in the field of education ...

Accommodation of Religious Difference, Netherlands Equal Treatment Commission (Commissie Gelijke Behandling) (Institute for Human Rights since 1 oct 2012) Sample case under section 5 [Employment] Police department dress code banned headscarves; department wanted neutral public appearance. ETC: Dress code could not be applied to Muslim officer who had no contact with public. (CGB no. 2008-123, 23 oct 2008.)

Sample cases under section 7 [Education] Schools prohibited sports headscarves in gym class on safety grounds. ETC: In the absence of evidence that the scarves were unsafe, the school violated ETA sec. 7. (CGB no. 2011-39, 24 maart 2011; CGB no. 2011-95, 21 juni 2011.)

Issue 2: Religious Group Autonomy Must religious groups comply with antidiscrimination laws in decisions about membership, employment, and other areas? Tension between tolerance models: Multicultural recognition favors group autonomy Shared liberal values favors individual rights against the group

Do religious groups have a right to be intolerant?

Religious Group Autonomy, Netherlands Equal Treatment Act (Algemene Wet Gelijke Behandling) Section 5 [Employment] 1. It is unlawful to discriminate in [employment]. 2. Subsection (1) does not apply to the freedom of an institution founded on religious or ideological principles to impose requirements which, having regard to the institution's purpose, are necessary for the fulfillment of the duties attached to a post. Section 7 [Education] 1. It is unlawful to discriminate in [education]. 2. Subsection (1) does not affect the freedom of an educational establishment founded on religious or ideological principles to impose requirements governing admission to or participation in the education it provides which, having regard to the establishment’s purpose, are necessary for the fulfillment of its principles.

Religious Group Autonomy Cases – Netherlands Maimonides v. Brucker (Hoge Raad, 1988). Orthodox Jewish school’s admissions policy requiring Jewish identity upheld under Constitution Art. 23. [Vader] v. Stichting Katholiek Onderwijs Volendam (Gerechtshof Amsterdam, 2011). Catholic school policy prohibited clothing that covers students’ faces. Policy is permitted by ETA sec. 7(2); schools have broad discretion to adopt policies to fulfill their mission or preserve religious identity. Court’s interpretation of ETA 7(2) is different than ETC’s. Staat der Nederlanden v. Stichting Clara Wichmann (H.R. 2010) (Staatkundig Gereformeerde Partij v. The Netherlands (ECtHR, 2012). SGP prohibits women from appearing on ballot list; receives state subsidy. SGP’s religious freedom right to exclude women from ballot is outweighed by international law prohibiting discrimination. Government must ensure that SGP allows women to stand for election.

Religious Group Autonomy – Canada and U.S. Trinity Western Univ. v. B.C. College of Teachers (Can. 2001) religious university with “no homosexual behavior” policy cannot be denied accreditation for teacher training program; there was no evidence that its graduates would practice discrimination as teachers.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (U.S. 2012) “ministerial exception” doctrine “ministerial exception” applies to “called” teacher at a religious school who was recognized as a “minister”; fired teacher has no claim for employment discrimination.

Dutch Equal Treatment Act (AWGB), Section 3: This Act does not apply to: a. legal relations within religious communities, …; b. the office of minister of religion (geestelijk ambt).

Issue 3: State Funding of Religious Schools Constitution of the Netherlands, Art. 23 5. The standards required of schools financed from public funds shall be regulated by Act of Parliament, with due regard, in the case of private schools, to the freedom to provide education according to religious or other belief. … 7. Private primary schools … shall be financed from public funds according to the same standards as public-authority schools. The conditions under which private secondary and pre-university education shall receive public funds shall be laid down by Act of Parliament. …

State Funding of Religious Schools Canada Constitution Act of 1867 required public funding of certain denominational schools in Ontario and Quebec; this legacy continues under the Canadian Charter. Provinces may fund religious and other private schools as long as they fund all on an equal basis, but are not required to do so.

Both Canada and the Netherlands follow the structural pluralism model of religion-state relations on this issue.

State Funding of Religious Schools - U.S. U.S. Constitution, First Amendment (1791): Establishment Clause: “Congress shall make no law respecting an establishment of religion...” Direct state funding of religious schools is not permitted. Issue: Can states provide indirect funding? Cases before 1997 applied strict separation model. Most state programs providing funds to religious schools were held to violate the Establishment Clause. Agostini v. Felton, (U.S. Supreme Court, 1997). Public funds may be used for non-religious instruction in religious schools. Most indirect state funding programs are now upheld.

Issue 4: Religious Hate Speech Core legal issue is freedom of expression. Religious hate speech affects religious freedom in practice.

Types of cases: Religiously motivated hate speech directed at other groups (often homosexuals) Hate speech directed at religious minorities

Hate Speech Laws: Canada: Criminal and civil codes; federal and provincial Netherlands: Criminal code United States: None

Canadian Hate Speech Laws Criminal code (federal) Sec. 319. Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of [an offense…].

Saskatchewan Human Rights Code Sec. 14. (1) No person shall publish or display, or cause or permit to be published or displayed, ... any statement or other representation ... (b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground [such as race, religion, etc.].

Saskatchewan v. Whatcott, Canadian Supreme Court 2013

“Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children.”

Saskatchewan v. Whatcott, Canadian Supreme Court, 2013

“Now guys like this can be Your children’s teachers.” “If Saskatchewan’s sodomites have their way, you school board will be celebrating buggery too.”

William Whatcott

Saskatchewan v. Whatcott Canadian Supreme Court, 2013 Freedom of expression promotes core democratic values: free exchange of ideas open political discourse individual self-expression Freedom of expression must be balanced against other fundamental values: equality respect for group identity the inherent dignity of all human beings Hate speech undermines these values Hate speech laws are an appropriate legislative response.

Snyder v. Phelps, U.S. Supreme Court (2011)

Westboro Baptist Church Members

Snyder v. Phelps, U.S. Supreme Court (2011) Soldier’s family sued church in tort for defamation. Judgment against church overturned by Supreme Court Church’s activity is protected by its right to freedom of speech. No balancing with other social values “As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Dissenting justice: The church’s speech made no contribution to public debate. The right to freedom of speech is not a license to engage in “verbal brutality.”

Netherlands Hate Speech Laws Dutch Criminal Code Art. 137c. (1) A person who publicly, either orally, or in writing, or by image, intentionally makes an insulting (beledigend) statement about a group of persons because of their race, religion or personal beliefs ... is liable to a term of imprisonment of a period of not more than one year or a fine of the third category. Art. 137d. (1) A person who publicly, either orally or in writing or by image, incites (aanzet) hatred of or discrimination against persons or violence against their person or property, because of their race, religion or personal beliefs ... is liable to a term of imprisonment of not more than one year or a fine of the third category.

Wilders Statements The heart of the problem is fascist Islam, the sick ideology of Allah and Mohammed as laid down in the Islamic Mein Kampf: the Qur’an. We have to stop the tsunami of Islamitization. That hits us in our heart, in our identity, in our culture. You feel that you are no longer living in your own country. A conflict is going on and we have to defend ourselves. I have had enough of Islam in the Netherlands: no more Muslim immigration. I have had enough of the worship of Allah and Mohammed in the Netherlands: no more mosques. ... Ban this fascist book. Enough is enough.

De kern van het probleem is de fascistische islam, de zieke ideologie van Allah en Mohammed zoals neergelegd in de islamitische Mein Kampf: de Koran. We moeten de tsunami van de islamisering stoppen. Die raakt ons in ons hart, in onze identiteit, in onze cultuur. Je voelt dat je niet meer in je eigen land leeft. Er is een strijd gaande en we moeten ons verdedigen. 'Ik heb genoeg van de islam in Nederland: geen moslimimmigrant er meer bij. Ik heb genoeg van de aanbidding van Allah en Mohammed in Nederland: geen moskee er meer bij. Ik heb genoeg van de Koran in Nederland: verbied dat fascistische boek. Genoeg is genoeg.

Image from Fitna

Image from Fitna

Rechtbank Amsterdam 23 juni 2011, LJN BQ9001 (zaak Wilders) Charge under art 137c (group defamation): Statements insulted Islam but not Muslims as a “group of persons” Follows Hoge Raad interpretation in 2009 case

Charges under art 137d (incitement to hatred or discrimination): Several statements came right to the edge of what is acceptable speech Wilders spoke as a politician in context of public debate

Limitations on Freedom of Expression Recognized by Supreme Court and ECtHR Recognized by ECHR Art. 10(2) and international antidiscrimination laws

Tentative Conclusions Models of Religion-State Relations Strict Separation Structural Pluralism

Models of Tolerance/Acceptance of Difference Multicultural Recognition Limited/Liberal Tolerance

Older Tolerance Models Majority tolerance of minorities Values of dominant group are seen as normal; others are disapproved but tolerated Dutch Republic of 16th and 17th centuries

Principled acceptance Moral sovereignty of all groups; state guarantees equality Verzuiling (pillarization) from 1917 to 1960s

Pragmatic tolerance, gedogen (“turn a blind eye”) Deviant or illegal practices are condoned Dutch society of 1960s and 1970s

U.S., Canada and Netherlands Religious Affiliation (percentages)

U.S.

Can Neth (2010/1 (2011) (2009) 2)

CHRISTIAN

73.0

67.3

44.0

Catholic

22.0

40.0

27.0

Protestant

48.0

21.1

17.0

Orthodox

1.0

1.7

__

Other

2.0

4.5

2.7

NONCHRISTIAN

7.4

7.7

8.3

Muslim

2.6

3.2

5.5

Jewish

1.8

1.0

0.2

Hindu

0.6

1.5

1.3

Buddhist

1.0

1.1

1.0

Other

1.4

2.0

0.1

NONE

19.6

23.9

44.0

U.S., Canada and Netherlands Religious Affiliation (percentages) 60 50 Catholic

40

Protestant Other Chr

30

Muslim 20

Jewish Other Non-Chr

10

None

0 US 2010/12

Can 2011

Neth 2009

Constitution of the Netherlands (1983) Art. 1: All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted. Art. 6: Everyone shall have the right to profess freely his religion or belief (levensovertuiging), either individually or in community with others, subject to (behoudens) his responsibility under the law.

Canadian Charter of Rights and Freedoms (1982) Sec.2: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression. ... Sec. 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Sec. 27: This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

United States Constitution (1989) First Amendment (1791): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ... Fourteenth Amendment (1868): Sec. 1. No state shall … deny to any person within its jurisdiction the equal protection of the laws.

U.S. Religious Affiliation - Trends (percentages)

1975 2007 CHRISTIAN 90.0

78.5

2030 72.0

Catholic

26.0

23.9

30.0

Protestant

64.0

51.3

42.0

NON-CHR

NONE

3.0

4.8

11.0

Muslim

__

0.6

2.0

Jewish

2.0

1.7

1.0

Other

1.0

2.5

8.0

7.0

16.1

17.0

1971 2006 2031 CHRISTIAN 91.0

74.8

64.8

Catholic

46.0

42.5

36.6

Protestant

45.0

27.6

21.3

Orthodox

1.7

2.3

Other Chr

3.0

4.6

NON-CHR

5.0

7.7

14.3

Muslim

__

2.7

6.8

Jewish

1.0

1.1

1.0

Hindu

__

1.2

2.4

Buddhist

__

1.1

1.0

Other

4.0

0.4

0.4

NONE

4.0

17.5

20.9

Canada Religious Affiliation Trends (percentages)

Netherlands Religious Affiliation Trends (percentages) 1970 2009 2030 CHRISTIAN 74.9

46.7

Catholic

40.7

27.0

Protestant

34.2

17.0

Other Christian NON0.8 CHRISTIAN

8.1

Muslim

5.5

Jewish

0.2

Other NONE

2.7

25.0

0.8 44.0

2.4

7.8