BACKGROUNDER | "A PRECIOUS ASSET": THE RIGHT TO FREEDOM OF RELIGION OR BELIEF (FORB)

By Dr. Heiner Bielefeldt

Freedom of religion or belief is a “precious asset”. This way of referring to the fundamental right, which first occurred in the historic Kokkinakis case (1993)^[1], has become standard usage in judgements of the European Court of Human Rights. The Court has indicated that religious freedom, apart from its obvious significance for the followers of various religions, is indispensable for shaping respectful coexistence in a modern democracy. It is neither a luxury nor a privilege. To quote the Court, freedom of religion or belief is “one of the foundations of a democratic society”.^[2]

Notwithstanding the European Court of Human Rights’ appreciation of the importance of the right, freedom of religion or belief has once again become a contested issue, not least in Europe. In recent years, new questions have arisen. While some of them concern practical issues about how best to implement this human right, other questions betray a certain skepticism concerning the ongoing relevance of freedom of religion or belief in a modern secular society. Does freedom of religion or belief privilege certain religious worldviews? What is its scope, and where are its limits? Do we actually need a human right that specifically deals with issues of religion and belief? Would it not be sufficient to guarantee everyone’s freedom to express their various opinions, standpoints and convictions, including religious ones? What is the relationship of this right with other human rights? What is the role of freedom of religion or belief within broader anti-discrimination agendas? These are far-reaching questions.

Freedom of religion or belief enjoys the elevated status of an inalienable human right. It is enshrined in international and regional human rights instruments. It also fully incorporates all the principles which jointly define other human rights: universalism, freedom and equality. The main purpose of human rights is to institutionalise respect for everyone’s human dignity. In the face of widespread misunderstandings of the right, it is worth emphasizing that freedom of religion or belief does not protect religions or belief systems in themselves, nor is it the direct projection of religious views or values into the framework of human rights. Instead, qua its nature as a human right, freedom of religion or belief protects human beings against all forms of coercion, intimidation and discrimination, in the vast area of their religious or belief-related convictions and practices. Right holders are human beings, as individuals and in community with others. This consistent focus on human beings – their dignity, freedom and equality – constitutes the common denominator which connects freedom of religion or belief to all other human rights.

Within the broader network of human rights, freedom of religion or belief at the same time has a unique role to play. It gives recognition to a crucial dimension of our humanness, namely, the fact that we human beings adopt and cherish profound, identity-shaping convictions, which can permeate all aspects of our lives, in private as well as in public. To quote the 1981 UN Declaration on the Elimination of All Forms of Intolerance, “religion or belief, for anyone who professes either, is one of the fundamental elements of his conception of life”. In spite of overlaps with freedom of opinion and expression, freedom of religion or belief thus has its own distinct characteristics. This makes it an indispensable human right and warrants a critical defence of the right against contemporary tendencies to marginalise and trivialise it. Moreover, freedom of religion or belief protects a broad variety of practical manifestations of people’s existential convictions, such as the freedom to worship together with others, to display one’s religious identity visibly, to observe religious rules, to educate one’s own children in conformity with one’s convictions, to build an infrastructure ranging from kindergartens to graveyards and many other practices. Without appreciating the specific role of freedom of religion or belief, human rights would fail to do justice to the human condition; indeed, they would cease to be fully humane.

The fact that the various human rights share the same general purpose, namely, to protect the dignity of all human beings, does not preclude occasional conflicts arising from the exercise of the different rights. Dealing with tensions arising between different human rights is actually a normal part of human rights practice. It would therefore be a grave misunderstanding to see religious freedom as an obstacle to broader human rights agendas, for example in the area of non-discrimination. Not only is freedom of religion or belief indispensable for an appropriate understanding of human rights in general, it also contributes to an adequately complex understanding of non-discrimination agendas. If it sometimes adds an element of “complication”, the main reason is that human beings are actually “complicated” beings. As humans, we have manifold needs, wishes, vulnerabilities, identities and creative options. The possibility of cherishing existential convictions which permeate our innermost being and shape our perceptions and priorities is part of what makes us human. Just as human rights would be unthinkable without religious freedom, non-discrimination agendas would be incomplete without accommodating the significance of religious views and practices.

Freedom of religion or belief, furthermore, plays an important role in the ongoing debates about the secular nature of the modern state. Secularity has become a defining feature of modern democracies. To a large extent, it also characterizes modern society. Upon a closer view, however, it turns out that the term secularity harbours very different meanings. Maintaining the secular nature of a constitution can represent the ongoing task of keeping the public space open for religious and non-religious diversity in society. Yet secularity can also be a proxy for post-religious and anti-religious worldviews, which may permeate public institutions and public life. The line between these open and restrictive forms of secularity may be thin, and no one knows where exactly it runs; yet it does exist. Respect for freedom of religion or belief provides a solid basis for cherishing an open and inclusive understanding of secular democratic constitutions. It furthermore reminds us that secularity can only make sense when it is in the service of respect for people’s freedom in private and in public. This is an important task.

The realisation of freedom of religion or belief in our increasingly pluralistic modern societies has become a difficult task. Given the inexhaustible diversity of belief systems, religious and moral convictions, and individual and communitarian practices, freedom of religion or belief has become subject to many far-reaching questions which warrant a thorough public debate. At any rate, people continue to search for an ultimate meaning in life, to cherish their existential convictions, to worship together with others and to raise their children in conformity with the values they hold in high esteem. Living together in a pluralistic and democratic society requires a culture of respect, which would not flourish without freedom of religion or belief. The right to freedom of religion or belief certainly continues to be “one of the foundations of a democratic society”, as the European Court of Human Rights reminds us. Indeed, it is a precious asset.

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