The Universal Declaration of Human Rights, adopted on November 10, 1948, contains the following words in its preamble: whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. As one can see, freedom of belief or religion is one of the freedoms on which a state that fully respects modern democracies born after World War II must be based. In fact, this religious freedom, along with freedom of expression, are classified as those that allow people to be free from fear and unhappiness.
Along with religious freedom, the Declaration lists the rights that come from human dignity. But this indication is not absolute or indefinite. As a clause ordering the exercise of these rights, Art. 29 section 2 states: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Therefore, every human right (in fact, every right that is attributed to an individual) requires the establishment of a series of restrictions that coordinate their collective exercise, with the least possible conflict between rights or risk to the fundamental values of society.
But to what extent do these restrictions affect religious freedom? Is the right to religious freedom a right that should be restricted in particular way?
To answer this question, we need to define a subject and scope that includes what is legally understood by „religion”. Since the separation between political and religious society was confirmed („Give to Caesar what is Caesar’s, and to God what is God’s”) and the relationship between archaic societies changed, what we now know as „the state” has become seen as an incompetent institution not only to regulate but also to define what is religious. Religions exist independently of the state and do not require legal recognition of their existence. However, this is not the case for other human rights recognized in international texts. Hence the distinctiveness of religious freedom in relation to other rights in the area of modern democratic societies: how to limit the law protecting the human dimension born outside the state order?
One must agree that for this type of state where human rights are respected, these phenomena can be considered „religious” and therefore legally protected, in which they exist:
a) belief in the existence of a Higher Being, transcendent or not, with whom communication is possible;
b) a set of religious truths that make up the content of one’s own faith and distinguish it from other faiths;
c) a set of moral standards that express the lives of the faithful in accordance with the professed beliefs;
d) and a specific cult that institutionally encourages individuals to communicate with this Higher Being.
In short, by religion we can understand the system of one’s relationship with God in theirs external projection, which consists of a specific religion, worship and morality.
Recognizing that one is entitled to, as their’s own and inalienable right, freedom in religious matters, it is necessary to ensure at least the following:
1. Freedom to profess or not to profess a particular religion, that is, to answer in the affirmative or negative when asked about God.
2. Freedom from coercion against the state in issuing an act of faith, without imposing any kind of religiosity or non-religiosity.
3. A set of derivative rights or guarantees to live up to one’s own beliefs and practice the rites and liturgies that are part of one’s own worship.
4. Protection of religious denomination in relation to state interventionist attitudes, which are not justified in the protection of the legal system
What has been said so far allows us to conclude that in its origin and in its „inner” extension of the individual, this freedom is unlimited. Only its „manifestations” or „performances” may be permitted, according to international texts. And the Universal Declaration, from which the vast majority of states draw the limits of fundamental human rights, sets restrictions to their exercise with regard to the rights and freedoms of others and to the satisfaction of legitimate demands of morality, public order and welfare in general.
De facto, the Declaration sets boundaries to religious freedom, based on four legal criteria:
1. Protection of the right of others to exercise their public freedoms and fundamental rights
Respect for the rights of others can be found, with slight differences in terminology, in almost all international human rights documents as a restriction of expressions of one’s religion or beliefs. It should be understood as meaning only those rights which are equated with religious freedom, with strict application of the principle of normative hierarchy.
Right now, and increasingly, the free and unconditional exercise of minors’ religious, ideological and conscience freedom is recognized without hesitation. This legislative policy questions the right of parents to educate their children according to their religious beliefs. The above-mentioned justification, based on the notion of „minor’s maturity” (which is a psychological, not legal concept), resulted in considerable legal uncertainty. Access to abortion, euthanasia or treatment against or without the knowledge of parents, as well as refusal to receive education or practice worship against the will of the parents are a consequence of the fact that this line has been obliterated by certain ideological policies.
This restriction is also questioned when, when exercising a fundamental right, an individual demands that the other act or refrain from acting provided for by law. I mean the issues of conscientious objection. The religious freedom of a doctor or pharmacist may be violated when he is called upon, for example, to perform a failed medical intervention or to deliver a pill with the same effect, or to cause the death of a person who demands euthanasia.
2. Public order
That’s an undefined legal concept which, although arouses discussions in the scientific community, can be understood as an activity aimed at the physical protection of persons and property and maintaining public peace. When states were born, the justification for their existence and the „social contract” was based on the protection of life and private property.
Therefore, we can link the restriction of religious freedom in a democratic society with the protection of the security of the citizen. It is obvious that the practice of certain beliefs threatens this security: for example, religious extremism and sects. These are two different religious (or pseudo-religious) manifestations that coincide in their manifestation. In these circumstances, the guarantee of religious freedom must give way to the maintenance of public order if absolutely necessary.
3. Public health
Public health is composed of the existing health conditions in the various environments in which an individual operates. Therefore, it would be impossible to use religious freedom to disseminate doctrines or perform activities contrary to public health (e.g. drug use). And since, unfortunately, we live globally, it reveals that religious freedom, and therefore conscientious objection on religious grounds, cannot be used to refuse treatment without which there would be a public health risk (e.g., preventing an epidemic).
However, there were cases in which, after this restriction, the state unlawfully interfered with the internal life of religious communities. Spain is a good example of this: restriction of religious freedom is a permanent element (excessive in most of the imposed solutions) in all regulations governing the guarantee of public health.
4. Public morality
Finally, what remains is to examine the boundary that can generate the greatest imprecision in a democratic society. Excluding the protection of the fundamental rights of others, what is meant by public morality?
It is an undefined legal concept that should not be confused with a specific ethics, even if it would be socially dominant, unless the state had a denominational constitution. In such cases, public morality would coincide with official religious morality. But in the most advanced societies, we must not forget the Christian dualism that has shaped modern Europe. Even if a state is denominational, either because it has been expressly recognized as such in the Constitution or because it is the religion of the majority of society, it must find its own moral criteria that will serve as guiding criteria for the legitimate exercise of religious freedom by non-believers.
What is not possible, but the Universal Declaration of Human Rights leads to it, is that the state strives for the legal ordering of society regardless of any ethical value or steeped in axiological relativism. Democracy requires the existence of social values that set up the legal order and support the development of civil society.
And right on this boundary we can find the greatest legal uncertainty: where are these ethical values and where are they legitimized? The relentless debates around educational policy (usually based on political conflict rather than family guarantee) or the presence of religious signs in public life are a simple example of how states intend to change social morality in an indirect way that restricts religious freedom on many occasions.
Every law functioning in society needs restrictions that allow for its legitimacy, and at the same time guarantee that it will not be violated by the state or by a third party.
However, these restrictions should be clear and predictable. This is the case for most fundamental rights. However, the specificity of religious freedom, both in its origin and in various manifestations, makes its boundaries more fragmented and uncertain.
This has led to a threat to the civilian population, a crisis of family institutions, or the use by political ideologies of people’s values or beliefs with the intention of modifying them.
It is the duty of all of us, who devote ourselves to the scientific study of society and law, to help clarify these situations. The future of modern societies, born after the consolidation of European Christian dualism, the reception of Greek philosophy and the recovery of Roman legal thought, depends on this. We have already experienced situations in which a totalitarian state, ruthlessly repressing fundamental freedoms (especially freedom of religion), did nothing more than destroy human dignity.
Professor José Landete Casas
University of Valencia, Spain