A comparative research on the legal protection of non-believers in the European Union

About: Silvia Baldassarre, Codice europeo della libertà di non credere. Normativa e giurisprudenza sui diritti dei non credenti nell’Unione Europea, Nessun Dogma, Iura, Roma, 2020 (Preface by F. Margiotta Broglio, afterword by M. Croce)

1. Background

The Codice europeo della libertà di non credere deals with a still little-explored area of research: the legal protection of non-belief, in its individual and collective dimensions, in the member states of the European Union.

This is a topic of pressing relevance in today’s “liquid society” in which the religious phenomenon is rapidly and continuously transforming.

Including atheist groups among religious minorities might seem paradoxical to some. In fact, in the West, a long cultural-historical tradition has engendered and passed down the belief of a mutual exclusion-negation between the phenomena of atheism and religiosity, thus of their clear semantic opposition. The rigid dichotomy was essentially configured on the antithesis between the two poles, positive and negative, ascribed to the religious and atheistic phenomena; the concept of lack, of deprivation, inherent in the deprivative alpha of the term atheist, together with the ambiguity and polysemy of the term “negative”, understood in its meanings of both “non-affirmative” and “unpleasant, harmful”, have contributed to the stigmatisation and persecution over the centuries of non-believers as capable of questioning absolute truths and ruling powers. The term “atheism” thus bears a “heavy emotional inheritance”, which at least until the 20th century discounted the assimilation of unbelief to a “materialist” doctrine devoid of morality.

One of the distinctive features of contemporary atheism is found not only in its negative character, as a-theism, but especially in its positive-constructive aspect, as a free and autonomous life choice.

Thus, the notion of atheism as a mere denial of religion turns out to be refutable: the deprivative alpha of “atheism,” as the etymology suggests, excludes divinity but does not exclude a “spirituality without God,” the ability to construct horizons of meaning and values that are equally legitimate and worthy of equal consideration. A further distinguishing feature of contemporary atheism is its manifestation not only and no longer in a purely individual dimension, but in various and growing organized forms that strive to assert a secular view of life and to obtain the protection of substantive rights, to see their ethos accorded an ontological status equal to that of dogmatic religions.

2. Context: the rising polyphony of the new religious landscape

After the tragedies of the “short century”, the great plurality of factors-which make today’s era a “chameleon-like” period-has eroded many certainties related to value universes. In the past, they were often handed down “as an inheritance” from previous generations and constituted anchors to which humanity has clung for centuries. Globalization, massive migration flows and the capillary spread of the information communication system are blurring geographical and cultural boundaries.

The religious landscape has become very complex and continues to expand. Alongside “traditional” religious beliefs, new forms of spirituality, processes of deconversion, phenomena such as “believing without belonging”, “belonging without believing”, and “multiple religious affiliations” are spreading.

Cosmogonies, philosophical and religious, which in the past were identity factors of cultures and geographic areas, now meet each other, amalgamate in new forms and bring together worlds, real and ideal, once far apart; sometimes such cosmogonies clash, radicalize, interpenetrate and mutually transform each other, sometimes they are subjected to critical revision. Increased access to education at all levels in countries characterized by an intense development of social relations helped foster the growth of critical spirit, autonomy of judgment, the ability to choose, to act by renouncing the quiet conformity of a heterodirected life.

Regarding the phenomenon of nonbelief (into which fall  ̶  without any claim to exhaustiveness  ̶  sceptical, agnostic, atheist, indifferentist, rationalist, and humanist beliefs), although it is difficult to quantify, numerous sociological surveys have recorded a growing trend of nonbelievers in the world. According to the Pew Research Center (2017), they account for about 16% of the world’s population.

It is also necessary to distinguish between those affiliated with philosophical and non-denominational organizations  ̶  whose numbers vary widely among associations from a few hundred to several thousand  ̶  and so-called “nones” (religiously unaffiliated: atheists, agnostics, and people who do not identify with a particular religion in surveys and censuses); “nones” are much more numerous than affiliates and represent a large percentage of both the world population and the European population. The quantitative gap is based on several reasons: some do not feel the need to affiliate, or do not want to disclose their beliefs/convictions on religious matters, considering them strictly private and personal; others may fear a possible social stigma resulting from affiliation.

3. Theism/atheism: equal legal treatment?

In 1950, the European Convention on Human Rights, like the Universal Declaration of Human Rights (Art. 18) and the Charter of Fundamental Rights of the European Union (Art. 10) before it, intended to protect through Art. 9, in an all-inclusive manner, freedom of thought, conscience and religion. If the lexical option adopted by the English version of the article, “religion or belief,” may cast doubts on the broad interpretation of the provision, the French version, “religion ou conviction”, clearly directs toward a reading of the religious phenomenon inclusive of the theistic, atheistic and non-theistic axiological universes.

This reading is supported by European jurisprudence that is particularly attentive to an extensive declination of the paradigm of freedom of thought, conscience and religion. In Kokkinakis v. Greece (1993, § 31), the European Court of Human Rights affirmed that freedom of thought, conscience and religion (Art. 9 ECHR) is one of the foundations of a “democratic society” and it represents both one of the most vital elements that go to make up the identity of believers and their conception of life, and “a valuable asset for atheists, agnostics, sceptics and the disinterested”. Reiterating these general principles, in Buscarini et al. v. San Marino (1999, § 34) the ECHR clarified that freedom of religion implies the freedom to have or not to have religious beliefs, to practice or not to practice a religion.

Despite the incompetence of the European Union in religious matters, a European paradigm for regulating the religious phenomenon is gradually emerging through supranational sources and jurisprudence. A fundamental point of this paradigm can be seen in Article 17 of the Treaty on the Functioning of the European Union, which places churches, religious associations or communities and philosophical and non-denominational organizations on the same footing. This article, by recognizing the identity and specific contribution of these actors, imposes for the first time a legal obligation on the EU to conduct an open, transparent and regular dialogue with them.

However, Article 17 TFEU has critical issues that cannot be analyzed here. This article seems to draw a compromise between the federalist orientation of the Union and the typical tendency of states to preserve sovereignty. This compromise emerges from the wording of the article, which on the one hand obliges the Union to engage in dialogue with the aforementioned subjects, while on the other hand committing it to respect and not undermine (this last statement is reserved for churches and religious associations, but not philosophical organizations) the status that these subjects enjoy in national legal systems. Article 17 TFEU could, therefore, foster supranational recognition of the national criteria  ̶  sometimes arbitrary or discretionary  ̶  by which member states select religious groups eligible for special and beneficial statuses.

The “European Code of Freedom of Non-Belief” also highlights the asymmetry in legal treatment between religious and nonreligious groups; the latter are, in many legal systems with few exceptions, treated worse than religious groups. A few examples should be mentioned among the legal systems that provide for equal legal treatment between religious and nonreligious groups:

In Belgium, organized secularism  ̶  Communauté philosophique non confessionnelle  ̶  enjoys equal status with the six recognized denominations; according to Article 181 Const. the salaries and pensions of philosophical delegates, like those of ministers of recognized denominations, are paid by the State.

In the Netherlands, religious denominations and philosophical and non-denominational associations are likewise associations under private law; they enjoy the same legal treatment, and since 1983 (when the law on the resolution of financial relations between the state and the church came into force) they no longer benefit from direct state funding, so they derive their livelihood primarily from collections and donations from the faithful. Here, as in Belgium, philosophical associations can also carry out lay moral assistance in separate communities.

In Germany, Article 137 of the Weimar Constitution, incorporated along with other provisions on religious matters into the Basic Law of 1949, guarantees equal legal status to religious denominations and philosophical and non-denominational associations. Lower Saxony has a treaty with the atheist federation that allows the latter, among other things, to tax members (on a par with confessions recognized as corporations under public law), and the right to establish courses in schools.

In Austria, the “Atheist Religious Society” (ARG, so named to emphasize atheism’s connection to religion), having reached the minimum number of affiliates required by law (300 members according to the ‘98 law), petitioned the government in December 2019 for recognition (see W. Apfalter, Is an Atheist religion in Austria legally possible?, in Journal of Law, Religion and State (JLRS), v. 8, no. 1, 2020, p. 93 ff.)

There are legal systems that extend to atheist sentiment the criminal protection accorded to religious sentiment, among them: the Netherlands, Luxembourg, Germany.

The brief focus on some European legal systems shows the possibility of a concrete equalization, in dignity and treatment, of the atheist and theist phenomena. This development is encouraged by European sources and jurisprudence and is more consistent with an increasingly secularized religious landscape. The “Code” is divided into thematic cores aimed at analysing the degree of substantiality in protecting the rights of non-believers. This provides insight into whether the protection of freedom of conscience in different states can be considered a compass for religious policy. The chosen areas  ̶ including religious and ethical teaching in public schools, the display of religious symbols in public space, spiritual assistance in segregated communities, the right to change religious affiliation in denominational registers, freedom of atheist propaganda, voluntary termination of pregnancy, the right to a dignified end of life, the criminal protection of religious sentiment, the legal status of philosophical and non-denominational denominations spiritual assistance in separated communities and associations, and the regulation of same-sex couples  ̶  represent a test for measuring the secular nature of States’ legal systems and religious policy.

Silvia Baldassarre, University of Florence

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