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Freedom of Religion as a Source of Claims to Equality and Problems for Equality*

Published online by Cambridge University Press:  04 July 2014

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The earliest political and legal documents inaugurating the era of constitutionalism in the late 18th century already emphasized the principles of liberty and equality. The first one, the American Declaration of Independence of 1776, attributes the liberty and equality of human beings to the Creator, thus giving a religious explanation for its postulates. The second one, the French Declaration of the Rights of Man and Citizen of 1789, plainly states in its first article that humans are born and remain free and equal in rights, which are defined as natural rights serving the public good and thereby put in a more secular context, although the Déclaration also recognizes the presence and protection of the “Supreme Being”. Ever since, the religious and the secular explanations have been competing with and supplementing each other in ensuring the effective protection of human rights. And ever since, liberty and equality have been competing with and supplementing each other in keeping the proper balance between the interests of society and the aspirations of the individual.

Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2000

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1 Article 1 of the UDHR took up this formulation and added a reference to human dignity.

2 This dual explanation can also be found in the German Basic Law, with its comprehensive fundamental rights catalog, which was enacted by the German People in 1949 “conscious of their responsibility before God and men” (Preamble). See also the well-balanced approach taken by the Preamble to the Polish Constitution of 1997.

3 The question whether the religious freedom of some or even the majority can ever justify the denial of equality in the general sense to others, in particular to a minority or to women, is beyond the scope of this article. Cf., e.g., Raday, F., “Religion, Multiculturalism and Equality: The Israeli case” (1996) 25 Isr. Yrbk Hum. Rts. 193.Google Scholar

4 The ECtHR, however, after having found a violation of a freedom, does not consider a challenge based on Article 14 of the ECHR (equality) unless discrimination forms an important aspect of the case. Judgment of 29 April 1999, §89 (Chassagnou et al. v. France).

5 Articles 2, 18.

6 Articles 9, 14.

7 Article 2(1), 18, 26. According to §2 of General Comment no. 22(48), adopted by the Human Rights Committee on 20 July 1993, discrimination against any religion constitutes a violation of Article 18 of the ICCPR (15 HRLJ 233 [1994]). However, in a case concerning religious discrimination the Human Rights Committee recently applied only Article 26 of the ICCPR (Views on Communication No.694/1996, adopted on 3 November 1999, §10.6 [U.N. Doc. CCPR/C/67/D/694/1996)). See also Articles 26, 27, 35 of the Arabian Charter of Human Rights of 15 September 1994 (18 HRLJ 151 [1997], not yet in force), the preamble to which, however, emphasizes that the principle of equality is rooted in the Islamic Sharia and other religions of divine revelation, giving rise to doubt whether other religions can claim equal treatment.

8 Article 3(1), Articles 15, 16.

9 Articles 3(3), 4 of the BL. The German Federal Constitutional Court uses strict scrutiny in all cases of differential treatment that has a detrimental effect on the exercise of fundamental freedoms. Cf., e.g., BVerfGE 88, 87 (97); 91, 346 (363).

10 Articles 3, 19.

11 Articles l, 6.

12 Articles 19(2), 28.

13 Articles 14, 16.

14 Articles 8(2), 15.

15 Classifications based on the exercise of fundamental freedoms, including the freedom of religion, are subject to strict scrutiny by the courts under the Equal Protection Clause of the Fourteenth Amendment, which requires a compelling governmental interest and a narrow tailoring – as do suspect Classifications, such as racial ones. See Gunther, G. and Sullivan, K.M., Constitutional Law 13th ed. (Westbury, N.Y., Foundation Press, 1997) 840 et seq.Google Scholar; see also Saenz v. Roe, 67 U.S. Law Week 4291 (1999) 4294 et seq. The Free Exercise Clause of the First Amendment also prohibits discriminations against some or all religious beliefs. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

16 The Declaration of the Establishment of the State of Israel of 14 May 1948 assures complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex, and freedom of religion and conscience. Cohn, H.H., “Religious Freedom and Religious Coercion in the State of Israel”, in Kellermann, A.E., Siehr, K., Einhorn, T., eds., Israel Among the Nations: International and Comparative Law Perspectives on Israel's SOth Anniversary (London, Huwer Law International, 1998) 79Google Scholar; Maoz, A., “Religious Human Rights in the State of Israel” in Vyver, J.D. van der & Witte, J. Jr., eds., Religious Human Rights in Global Perspective (The Hague/Boston/London, Martinus Nijhoff Publishers, 1996) 349, 359ff.Google Scholar On the legal status of the Declaration, cf. Kretzmer, D., “Constitutional Law”, in Shapira, A. & DeWitt-Arar, K.C., eds., Introduction to the Law of Israel (The Hague/London/Boston, Kluwer Law International, 1995) 39Google Scholar; Maoz, loc. cit., at 357. Cf. the Israeli High Court decision of March 8, 2000 in the Katzir settlement case, declaring ethnic or religious discrimination with regard to the sále of State land to be illegal.

17 Austria: Article 14(2) of the Staatsgrundgesetz of 1867; Denmark: §70 of the Constitution; Germany: Article 140 of the BL in conjunction with Article 136(1)-(2) of the WRV; Greece: Article 13(4) of the Constitution; Portugal: Article 13(2) of the Constitution.

18 Article 2 of the UDHR; Articles 2(1), 26 of the ICCPR; Article 14 of the ECHR.

19 Quoted from Thorpe, F.N., ed., The Federal and State Constitutions, vol. VII (1909) 3812, at 3814.Google Scholar

20 The Bili for Establishing Religious Freedom, drafted by Thomas Jefferson in 1777 but passed by the Virginia legislature only in 1786, went further. It gave all men the right “to profess, and by argument to maintain, their opinions in matters of religion”, quoted from Peterson, M.D., ed., The Portable Thomas Jefferson (New York, Viking Press, 1977) 251, at 253.Google Scholar

21 Cf. Starck, C., in Mangoldt, H. von, Klein, F. and Starck, C., Das Bonner Grundgesetz, vol. 1 (4th ed., 1999), Article 4 note 90.Google Scholar

22 In western societies, prejudices against Islam, a religion professed mainly by immigrants, are especially pervasive. The U.N. Commission on Human Rights has recently expressed “deep concern that Islam is frequently and wrongly associated with human rights violations and terrorism” (Resolution 1999/82 of 30 April 1999).

23 But see the decision of May 4, 1995 in which the Italian Constitutional Court attributed special rank to the freedom of religious conscience (Venice Commission, 69 et seq.).

24 Articles 2(1), 18 of the ICCPR; Articles 9, 14 of the ECHR; Articles 3(3), 4(1) of the BL (see also Article 140 in conjunction with Article 137(7) of the Weimar Constitution); Articles 8(2), 15 of the Swiss Constitution of 1999. The religion clauses of the First Amendment to the U.S. Constitution only protect religious beliefs and conduct rooted therein, not philosophical convictions. Wisconsin v. Yoder, 406 U.S. 205 (1971) 215–16; Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) 713–14.

25 Jellinek, G., Die Erklärung der Menschen- und Bürgerrechte, 4th ed. (1927)Google Scholar, reprinted in Schnur, R. (ed.), Zur Geschichte der Erklärung der Menschenrechte (1964) 1, 39 et seq.Google Scholar

26 A. von Campenhausen, HStR VI, §136 not 35.

27 But see Perry, Michael J., The Idea of Human Rights (New York, Oxford University Press, 1998).Google Scholar

28 According to Jewish (and Christian) concepts, the creation of man in the image of God is the basis of human rights. Elon, M., “The Values of a Jewish and Democratic State” in Kellermann, A.E. et al. , eds., Israel Among the Nations (London, Kluwer Law International, 1998) 177, 193.Google Scholar

29 See supra I.A.

30De Jure Belli ac Pacis Libri Tres”, Prolegomena, §11, quoted from Scott, James Brown, ed., The Classics of International Law (New York, Oceana Publications, reprinted 1964).Google Scholar

31 From a world politics perspective, cf. Huntington, S.P., The Clash of Civilizations and the Remaking of World Order (New York, Simon and Schuster, 1996).Google Scholar

32 ECtHR, judgment of 25 May 1993, Ser. A, Vol. 260-A, §31 (Kokkinakis v. Greece).

33 On the necessity to fight religious extremism of any kind, cf. the 1998 Report by the United Nations special Rapporteur on Religious Intolerance (§114) (U.N. Doc. E/CN.4/1998/6).

34 Cf. M. Nowak, U.N. Covenant on Civil and Political Rights – CCPR Commentary, 1993, Article 18 note 2 et seq.; Lerner, N., “Religious Human Rights under the United Nations”, in Vyver, van der and Witte, , eds., Religious Human Rights, supra n. 16, 79, at 114 et seq.Google Scholar

35 See part I.C., supra.

36 Strict scrutiny is applied to non-neutral laws that intentionally burden religion –McDaniel v. Paty, 435 U.S. 618 (1978); Larson v. Valente, 456 U.S. 228 (1982) –but not to neutral laws that incidentally burden religion (see “the peyote case”, infra, part IVA.).

37 Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

38 BVerfGE 6, 32; 80, 137; but see the dissenting opinion, ibid., at 164.

39 Its predecessor in Article 135 of the WRV guaranteed the freedom of religion only subject to the general laws. According to Article 9(2) of the ECHR and Article 18(3) of the ICCPR, only the freedom to manifest one's religion or beliefs (forum externum) can be limited by law because in a democratic society there can be no justification for limiting the freedom to have a religion or belief (forum internum).

40 But see BVerfGE 3, 225 (232 et seq.) on the theoretical possibility of unconstitutional norms in the original unamended version of the BL. According to BVerfGE 84, 90 (121), even the pouvoir constituant is bound by elementary postulates of justice, including the equal protection of the laws.

41 The Federal Constitutional Court has not, however, adopted this approach. BVerfGE 33, 23 (30 et seq.). But see Starek, supra n. 21, Article 4 notes 75 et seq.; von Campenhausen, HStR VI, §136 note 82; BVerwGE 112, 227 (231 et seq.).

42 Cf. Lester, Lord and Pannick, D., “Principles of Interpretation” in Human Rights Law and Practice (London, Butterworths, 1999) 50 et seq.Google Scholar

43 Article 15(2).

44 Judgment of 20 September 1994, §50, Series A, Vol. 295-A (Otto-Preminger Institute v. Austria); Judgment of 25 November 1996, §58, Reports No. 23 (1996-V), 1937 (Wingroue v, United Kingdom). Cf. the criticism by Harris, D.J., O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights (London, Butterworths, 1995) 364.Google Scholar The ECtHR has often emphasized the importance of the freedom of expression for a democratic society and thus of European judicial scrutiny of member states' interferences with it, e.g., in the Judgment of 23 May 1991, §57 et seq., Series A, Vol. 204 (Oberschlick v. Austria). See also Benvenisti, E., “Margin of Appreciation, Consensus, and Universal Standarde” (1999) 31 N.Y.U.J. Int'l L. & Pol. 843Google Scholar (margin of appreciation is to be allowed only when fundamental rights protection by national procedures can be trusted).

45 Judgment of 16 September 1996 (Reports No. 17 [1996-IV] 1346 [§44] [Manoussakis v. Greece]). But see Judgment of 27 June 2000, §84 (Jewish Liturgical Association Cha'are Shalom ve Tsedek v. France – not yet reported) where the majority emphasized only the margin of appreciation, referring to “the delicate relations between the State and religions”, without mentioning the necessity for European supervision.

46 European Court of Justice, ECR 1976, 1589 (case 130/75). Cf. Article 6 (2) of the Treaty on European Union; Article 10 of the Charter of Fundamental Rights of the EU of 7 December 2000 (Official Journal 2000, C 364, 1).

47 European Court of Justice, ECR 1991, 1–2925 (case C-260/89).

48 Article 48(3) (now Article 39(3)) of the EC Treaty.

49 ECR 1974, 1337 (case 41/74).

50 ECR 1988, 6159 (case 196/87).

51 Judgment of 14 March 2000 (Case C-54/99), not yet reported.

52 Cf. BVerfGE 83, 341 (353) on the necessity for courts to determine whether claims to recognition as a religion are well-founded. The U.S. Supreme Court withholds First Amendment protection only from claims that are bizarre and clearly nonreligious in motivation. Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) 715–16.

53 Cf. BVerwGE 82, 76 (78).

54 Marxism can be considered a weltanschauung that is protected by Article 4 of the BL (von Campenhausen, HStR VI, §136 note 43; Starek, supra n. 21, Article 4 note 31). The European Commission of Human Rights applied Articles 9 and 10 of the ECHR when it found no violation in a case in which the applicant had been punished for neo-Nazi activities. Decision of 13 December 1963, Yearbook of the European Convention on Human Rights 6, 424 (443 et seq.) (X. v. Austria).

55 See, e.g., the paraphrase by Morlok, M., in Dreier, H., ed., Grundgesetz, vol. I (1996)Google Scholar, Article 4 notes 42 et seq.; Starek, supra n. 21, Article 4 notes 10 et seq., 30 et seq. For a U.S. perspective, see Gunther, G. and Sullivan, K.M., Constitutional Law, 13th ed. (Westbury, N.Y., Foundation Press, 1997) 1468 et seq.Google Scholar See also the definition by Shelton, D. and Kiss, A., “A Draft Model Law on Freedom of Religion”, in Vyver, van der & Witte, J. Jr., eds., Religious Human Rights, supra n. 16, 559, at 562Google Scholar (religion means “the personal commitment to and serving of one or several beings or spiritual masters with worshipful devotion; a System or systems of belief, faith, creed or worship; the service of the divine; or to the sacred beliefs, observances and practices of traditional cultures”).

56 See Starek (supra n. 21), Article 4 notes 55 et seq. But see Muckel, S., Religiöse Freiheit und staatliche Letztentscheidung (Berlin, 1997) 151Google Scholar, and additional references cited there.

57 Cf. the Judgment of 30 June 1999 of the Swiss Federal Tribunal, EuGRZ 2000, 59 et seq.; Masuch, T., “Ist Scientology eine Religions- oder Weltanschauungsgemein-schaft?Staatswissenschaften und Staatspraxis 9 (1998), 623 et seq.Google Scholar On the situation of the “Church of Scientology” in Germany, see the Report by Mr. Abdelfattah Amor, special Rapporteur of the U.N. Commission on Human Rights, on his visit to Germany (U.N. Doc. E/CN.4/1998/6/Add.2 of 22 December 1997) §§69 et seq. See also European Commission of Human Rights, Decision of 7 April 1997 (DR 89-A, 163).

58 See, e.g., Article 3(1) of the Charter of Fundamental Rights and Freedoms of the Czech Republic; Article 3 (3) of the BL; Article 70/A of the Hungarian Constitution; Article 3 of the Italian Constitution; Article 8 (2) of the Swiss Constitution of 1999.

59 See, e.g., Article 2(1), UDHR; Article II, Convention on the Prevention and Punishment of the Crime of Genocide; Articles 1, 33, Convention Relating to the Status of Refugees of 1951; Article 14, ECHR; Articles 24(1), 26, ICCPR; Article 2(2), International Covenant on Economic, social and Cultural Rights; Article 2(1), Convention on the Rights of the Child of 1989; Article 1, American Convention on Human Rights – all reprinted in Ermacora, F., Nowak, M. & Tretter, H., eds., International Human Rights (London, Sweet and Maxwell, 1993).Google Scholar See also Article 1(3) of the U.N. Charter; Article 3 of the U.N. general Assembly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief of 25 November 1981 (Res. 36/55), and the U.N. general Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 18 December 1992 (Resolution 47/135, GAOR, 47th Session, Supplement No. 49, Vol. I, 210). Article 13 of the EC Treaty, as amended by the Treaty of Amsterdam of 1997, empowers the Community legislature to fight discrimination on account of race and religion, among others.

60 660 United Nations Treaty Series 195.

61 Before ratifying the Convention, Switzerland added a new provision to its Criminal Code (Article 26 Ibis) which makes punishable public incitement not only to racial but also to religious hatred and discrimination. Attempts by scientologists to use this provision to silence critics have so far been unsuccessful (Rassen-diskriminierung – Gerichtspraxis zu Article 261bis StGB, Zurich 1999, 9 et seq.). See also §130(2), German Criminal Code. According to Article 20(2) of the ICCPR, states party must prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

62 R. Wolfrum, The Committee on the Elimination of Racial Discrimination”, Max Planek Yearbook of United Nations Law 3 (1999) 489, 499. While the Christian minorities in Turkey are mostly also ethnic (Greek, Armenian) minorities, this does not hold true for the Copts in Egypt or the Shiites in Bahrain.

63 Sachs, HStR V, §126 note 117.

64 Cf. the jurisprudence of the Human Rights Chamber in Sarajevo concerning religious freedom and equality. Neussl, P., “Bosnia and Herzegovina Still Far From the Rule of Law” (1999) 20 Hum. Rts L. J. 290, 300 et seq.Google Scholar, and the decisions reprinted ibid., at 328 et seq.

65 This right is expressly mentioned in Article 18 of the Universal Declaration and Article 9 (1) of the ECHR, but not in Article 18 of the ICCPR. But see, supra n. 7, §5 of the general Comment no. 22 (48).

66 Article 3(1), Framework Convention for the Protection of National Minorities of 1 February 1995 (European Treaty Series No. 157). The Convention protects only “national”, not religious minorities, but it guarantees freedom of religion to the former (Article 8) and protects their religious identity from discrimination (Article 6(2)).

67 Thus, the British House of Lords held that a private school's refusal to admit a Sikh student who insisted on wearing a turban over his unshorn hair amounted to racial discrimination. Mandla v. Dowell Lee, [1983] 2 Appeal Cases 548. See also Articles 2(l)(d), 5, International Convention on the Elimination of All Forms of Racial Discrimination of 1966. The U.S. Supreme Court extended a federal statute outlawing racial discrimination to Jews and Arabs although they were considered part of the “Caucasian race”, that is, white (Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987); Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987).

68 Cf. 6th paragraph in the preamble to the International Convention on the Elimination of All Forms of Racial Discrimination of 1966. The Committee on the Elimination of Racial Discrimination stated in §2 of its general Recommendation XTV on Article 1(1) of the Convention, adopted at its 42d session in 1993 (U.N. Doc. A/48/18) that differential treatment did not constitute (direct) discrimination if the criteria used, judged against the objectives and purposes of the Convention, were legitimate, which is inconceivable outside the affirmative action context. Governments were given more leeway in the area of unintentional indirect discrimination to justify the disparate impact of a facially neutral act upon a group distinguished by race. See also Washington v. Dauis, 426 U.S. 229 (1976).

69 However, the Human Rights Committee considers differential treatment of religione with regard to the public funding of schools as compatible with Article 26 of the ICCPR if it is based on reasonable and objective criteria. Supra n. 7, Views on Communication No. 694/1996.

70 Human Rights Committee, supra n. 69, §10.4.

71 42 U.S. Code §2000e-l(a) completely exempts religious organizations from prohibition against discrimination in employment on the basis of religion. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1983).

72 On the situation in Israel, cf. Raday, supra n.3, 226 et seq.

73 While §22 of the New Zealand Human Rights Act 1993 prohibits discrimination in employment on the grounds of sex, §28(1) allows organized religions to limit positions to one sex if their doctrines or rules or established customs so require. Rishworth, P., “Coming Conflicts over Freedom of Religion” in Huscroft, G. and Rishworth, P., eds., Rights and Freedoms (Wellington, Brookers, 1995), 225, 246.Google Scholar

74 Bob Jones University v. U.S., 461 U.S. 574 (1983) 602 et seq.

75 ECtHR, judgment of 23 June 1993, Ser. A, Vol. 255-C (Hoffmann v. Austria). The government must not base interferences with fundamental rights on popular prejudices. Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) 234 (Brennan, J. dissenting); Palmore v. Sidoti, 466 U.S. 429 (1984) (concerning racial prejudices).

76 Cf. the comprehensive definition by Shelton and Kiss, supra n.55, at 562: Discrimination on the basis of religion or belief “means any distinction, exclusion, restriction, preference, omission or other difference of treatment based on religion or belief, which has the purpose or effect of nullifying or impairing, directly or indirectly, intentionally or unintentionally, the recognition, equal enjoyment or exercise of human rights and fundamental freedoms in civil, political, economic, social or cultural life.”

77 In Germany, Muslim students may wear headscarves at school. Starek, supra n. 21, Article 4 note 96. For the situation in France and Turkey, see infra part III.C.(2).

78 429 United Nations Treaty Series 94.

79 The U.S. Constitution has also from the beginning expressly allowed office-holders, including the President, to give an affirmation, instead of swearing an oath, that they will faithfully execute their office (Article II, sec. 1; Article VI, sec. 3), thus showing respect for religious prohibitions of oaths. In Germany, under Articles 33(3) and 4(1) of the BL, the State must permit office-holders who reftise to swear oaths for religious reasons to give an affirmation instead (BVerfGE 79, 69, 75 et seq.).

80 Most states did not recognize an unqualiSed freedom of religion until well into the 19th century. Abraham, Henry J. and Perry, Barbara A., Freedom and the Court: Civil Rights and Liberties in the United States, 7th ed. (New York, NY, Oxford Univ. Press, 1998) 224.Google Scholar

81 Torasco v. Watkins, 367 U.S. 488 (1961). The ECtHR recently held that requiring a religious oath of office from an elected member of parliament violates Article 9 of the ECHR. Judgment of 18 February 1999 (Buscarini v. San Marino).

82 See, e.g., Article 4 of the Constitution of Norway of 1814 (King must profess Evangelical-Lutheran religion); §4 of the Swedish Act on Succession to the Throne (exclusion of non-Lutherans). Chapter II, §2 of the Act of Settlement of 1701 excludes Catholics and persons marrying a Catholic from the succession to the British throne, while §3 obliges the heir to the throne to become a member of the Church of England. The constitutions of most Islamic states require the head of State to be a Muslim.

83 When the Human Rights Committee considered the periodic report of Norway under Article 40 of the ICCPR at its 67th Session in 1999, it did not recommend a revision of Article 4 but only of Article 2 of the Constitution, concerning religious education of children, in view of Article 18 of the Covenant.

84 Cf. BVerfGE 39, 334. The ECtHR accepted this during the Cold War (Judgments of 28 August 1986 [Glasenapp v. Germany, Ser. A, Vol. 104; Kosiek v. Germany, Ser. A, Vol. 105]) but found a violation of the ECHR after it had ended (Judgment of 26 September 1995 [Vogt v. Germany, Ser. A, Vol. 323]).

85 Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) 159–60.

86 Steinberger, H., Konzeption und Grenzen freiheitlicher Demokratie (Heidelberg, Springer, 1974).CrossRefGoogle Scholar

87 W. Cremer and T. Kelm, Mitgliedschaft in sog., “Neuen Religions- und Weltanschauungsgemeinschaften” und Zugang zum öffentlichen Dienst, Neue Juristische Wochenschrift 1997, 832 et seq. On the situation of so-called sects and psycho-groups in Germany, see the comprehensive final report of a parliamentary commission of inquiry of 29 May 1998 (Endbericht der Enquete-Kommission “Sogenannte Sekten und Psychogruppen”, Deutscher Bundestag, 13. Wahlperiode, Drucksache 13/10950).

88 A much publicized case in which the education minister of the State of Baden-Wuerttemberg rejected an applicant for public school service because she insisted on wearing a headscarf is currently working its way up through the court system. See Kästner, K.-H., “Religiös akzentuierte Kleidung des Lehrpersonals staatlicher Schulen” in Festschrift für Martin Heckel (1999) 359 et seq.Google Scholar See also German Federal Administrative Court, Neue Zeitschrift fur Verwaltungsrecht (1988) 937Google Scholar (teacher wearing Bhagwan outfit).

89 Swiss Federal Court, Judgment of 12 November 1997 (BGE 123 I 296). The court wrongly equated the teacher's headscarf with the official display of a crucifix.

90 Accord, from an Austrian perspective, Kucsko-Stadlmayer, G., “Die Rechtsprechung des osterreichischen Verfassungsgerichtshofs auf dem Gebiet der Glaubensfreiheit”, EuGRZ (1999) 505, 507.Google Scholar But see ECtHR, Decision of 15 February 2001 (Dahlab v. Switzerland).

91 See Morlok, M., in Dreier, H., ed., Grundgesetz, Kommentar, vol. I (1996)Google Scholar, Article 4 note 40. Cf. also Starek, supra n. 21, who considers the negative freedom of religion as the counterpart of the positive freedom of weltanschauung, non-religiousness being a weltanschauung (Article 4, note 22).

92 On the display of the crucifix cf. BVerfGE 35, 366 (courthouse); 93, 1 (classrooms); Swiss Federal Tribunal, BGE 116 Ia 252 (classrooms). In Austria, according to a 1962 treaty with the Holy See, a Christian cross must be displayed in every public school classroom, provided that the majority of students is Christian. Kucsko-Stadlmayer, supra n. 90, 510, 522. The U.S. Supreme Court held unconstitutional under the Establishment Clause a State statute requiring the posting of the Ten Commandments in public school classrooms. Stone v. Graham, 449 U.S. 39 (1980). On school prayer cf. BVerfGE 52, 223; Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 120 S.Ct. 2266 (2000).

93 In Germany, this is considered permissible. Cf. Federal Constitutional Court [Panel], Bayerische Verwaltungsblátter 1998, 79; Federal Administrative Court, EuGRZ 1999, 497. On the issue of “compelled speech” and religious objections thereto, see Wooley v. Maynard, 430 U.S. 705 (1977).

94 But see the dissenting opinion in the crucifix case decision by the German Federal Constitutional Court. BVerfGE 93, 1 (25, 31 et seq.).

95 The German Federal Constitutional Court has considered the freedom of religion a special fundamental right that supersedes the more general freedom of expression. BVerfGE 32, 98 (107). If this means that religious speech is less open to regulation by the legislature than secular speech the result cannot be reconciled with the prohibition of discrimination on religious grounds. The U.S. Supreme Court has applied the First Amendment's freedom of speech to religious expression, Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995), but the protection provided by the freedom of religion would go no further.

96 But see the problematic decision of the Swiss Federal Court upholding a general prohibition on demonstrations in the vicinity of the Einsiedeln monastery, even with regard to demonstrations directly protesting alleged cruelty to animals at a farm run by the monastery (BGE 124 I 267).

97 Sec. 7(2), Law on Public Holidays, State of Baden-Wuerttemberg.

98 But see Federal Administrative Court, Neue Juristische Wochenschrift 1999, 805; DiLoreto v. Downey Unified School Distrkt Bd. of Education, 196 F.3d 958 (9th Cir. 1999) (First Amendment does not bar public school from excluding religious messages from athletic field fence that is open to commercial advertising).

99 Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995).

100 Cf. Rosen-Zvi, A., “Family and Inheritance Law” in Shapira, and DeWitt-Arar, , Law oflsrael, supra n. 16, 75 et seq.Google Scholar

101 Conrad, D., “Rule of Law and Constitutional Problems of personal Laws in India” in Saberwal, S. and Sievers, H., eds., Rules, Laws, Constitutions (Thousand Oaks, Calif., Sage, 1998) 209 et seq.Google Scholar

102 The prohibition on interreligious marriages imposed by Jewish law will not be recognized in Germany for reasons of public policy if an Israeli citizen wants to marry a German in Germany. BGHZ 56, 180 (190 et seq.).

103 Raday, “Religion, Multiculturalism and Equality”, supra n. 3, 214 et seq.

104 Cf. BVerfGE 95, 267(317) (conceming individual repercussions of differential treatment of non-religious associations).

105 This is the case in Germany (Articles 4(2), 19(3) of the BL), within the ECHR System (Articles 9(1) (“in community with others”) and 34 of the ECHR), and probably also on the universal level of the ICCPR (see Nowak, supra n. 34, Article 18 note 7, and Article 2 First OP note 3).

106 According to Article 140 of the BL in conjunction with Article 139 of the WRV, in Germany Sundays are public holidays. From a U.S. perspective, see McGowan v. Maryland, 366 U.S. 420 (1961).

107 In Hungary, where public and Christian holidays coincide, all employees have the right of leave to celebrate religious holidays which are not public holidays. Hungarian Constitutional Court, decision of 27 February 1993 (Venice Commission, 60 et seq.). In Switzerland, public school students are given days off to enable them to celebrate minority religious holidays (BGE 114 Ia 129; 117 Ia 311). The European Commission of Human Rights held that neither Article 9 of the ECHR alone nor taken together with Article 14 necessarily gave a Muslim teacher the right to leave on Fridays so as to be able to attend prayer at a mosque (DR 22, 27).

108 In Braunfeld v. Brown, 366 U.S. 599 (1961), the U.S. Supreme Court held that a State could enact a Sunday shop closing law without granting exceptions to Orthodox Jews who, for religious reasons, must also keep their shops closed on Saturdays.

109 The South African Constitutional Court, however, in its decision of 6 October 1997 upheld a statute prohibiting the sale of wine on Sundays, Good Friday and Christmas Day (Venice Commission, 105 et seq.).

110 Federal Constitutional Court, EuGRZ 2002, 92, 96. But see the ECtHR's 10–7 decision of 27 June 2000 (Jewish Liturgical Association Cha'are Shalom ve Tsedek v. France, not yet reported).

111 In Germany, this right is derived solely from the freedom of religion (Article 4 of the BL; see also Article 140 of the BL in conjunction with Article 137(2) of the WRV), without any reference to the freedom of association (Article 9 of the BL) (BVerfGE 83, 341 [354ff.]).

112 Accordingly, in a Declaration annexed to the Amsterdam Treaty on the European Union of 1997, the EU promises to respect and not to prejudice the status under national law not only of churches and religious associations or communities in the member states, but also of philosophical and non-confessional organisations (Official Journal 1997, C 340, 133).

113 Article 140 of the BL in conjunction with Article 137(7) of the WRV.

114 Article 140 of the BL in conjunction with Article 137(4) of the WRV.

115 Article 140 of the BL in conjunction with Article 137(5) of the WRV. Regardless of their status as public law corporations, religious associations do not form part of the public administration but remain separate from the State (Article 140 of the BL in conjunction with Article 137(1) of the WRV).

116 Article 140 of the BL in conjunction with Article 137(6) of the WRV.

117 Hammer, G., “Steuer- und Gebuhrenbefreiungen der Kirchen” in Listi, J. and Pirson, D., eds., Handbuch des Staatskirchenrechts, vol. 1, 2d ed. (1994), 1065 et seq.Google Scholar See BVerfGE 19, 129(133 et seq.) (tax preferences are compatible with principle of equality).

118 H. Weber, “Grundrechtsbindung der Kirchen und Religionsgemeinschaften” in Listi & Pirson, supra n. 117, 573 et seq. The State must, however, protect church members by law from encroachments by their church, taking into account the latter's freedom of religion and autonomy (see Article 140 of the BL in conjunction with Article 137(3)(1) of the WRV).

119 Article 140 of the BL in conjunction with Article 138(2) of the WRV. See Hollerbach, HStR VI, §139 notes 64 et seq.; Karl-Hermann Kastner, “Die Verfassungsgarantie des kirchlichen Vermögens” in Listi and Pirson, supra n. 117, 891 et seq.

120 Article 140 of the BL in conjunction with Article 138(1) of the WRV. Cf. J. Isensee, “Staatsleistungen an die Kirchen und Religionsgemeinschaften” in Listi and Pirson, supra n. 117, 1009, 1043 et seq.

121 Article 140 of the BL in conjunction with Article 137(3) of the WRV.

122 Secs. 21 et seq.

123 Several Swiss cantons require churches to be organized according to democratic principles. Hungerbühler, A. and Féraud, M., “Die Rechtsprechung des Schweizerischen Bundesgerichts im Bereich der Bekenntnisfreiheit”, EuGRZ 1999, 536, 540.Google Scholar

124 BVerfGE 70, 138. The European Commission of Human Rights rejected the physician's application as inadmissible (Decision of 6 September 1989, DR 62, 151). But see the decision of 12 June 1996 of the Spanish Constitutional Court, holding that an employee whose job was not directly related to the ideology of the church could not be laid off for disrespectful remarks while on duty (Venice Commission, 110 et seq.).

125 Hollerbach, HStR VI, §139 notes 46 et seq.

126 Id., notes 68 et seq.

127 Pursuant to Article 140 of the BL in conjunction with Article 137(5) of the WRV, religious associations have remained public law corporations insofar as they had that status before 1919 (this covers primarily the Catholic church, Protestant churches and Jewish congregations). Other religious associations will be granted like rights upon application, if their constitution and number of members offer an assurance of their permanency. Even though there are no other explicit requirements the application of the Jehovah's Witnesses was declined because their members were not allowed to participate in elections for religious reasons, which was taken as a sign of disloyalty to the democratic State, even though the Basic Law does not impose an electoral duty. BVerwGE 105, 117; decision vacated and remanded by the Federal Constitutional Court (BVerfGE 102, 370).

128 See Article 1 of the ECHR; Article 2(1) of the ICCPR.

129 The European Commission of Human Rights has accepted that Article 9 of the ECHR imposes a duty on the government to protect religious associations from libel when it reaches an intensity likely to jeopardize the freedom of religion. DR 21, 109, 111 (Church of Scientology v. Sweden). The ECtHR has held that it is the responsibility of the State to ensure the peaceful enjoyment of the right guaranteed under Article 9 of the ECHR, that in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them, and that the right under Article 9 can form a sufficient basis to restrict the freedom of expression pursuant to Article 10(2) of the ECHR. Judgment of 20 September 1994, §47 [Ser. A, Vol. 295-A, Otto-Preminger Institut v. Austria]).

130 Otto-Preminger Institut case, supra n. 129, §47. But see also BVerfGE 99, 185 (State must protect individual against being falsely called a member of Scientology by a private association).

131 See, e.g., Article 13(2) of the Greek Constitution. In Kokkinakis, supra n. 32, the ECtHR, after having established a violation of Article 9 of the ECHR, found it unnecessary to consider a violation of Article 14 taken together with Article 9 of the ECHR, although the applicant asserted that the prohibition was enforced selectively to protect the dominant Orthodox religion only.

132 BVerwGE 82, 76; 90, 112.

133 There were only two prosecutions for blasphemy in the 20th century. Religious groups that are also ethnic groups are protected as such by statute. Feldman, D., Civil Liberties and Human Rights in England and Wales (Oxford, Oxford Univ. Press, 1993) 697 n. 65Google Scholar, mentions Jews and Sikhs.

134 R. v. Chief Metropolitan Magistrate, ex parte Choudhury [1991] QB 429. On the corresponding legal situation in Ireland cf. Article 40(6)(1a) of the Irish Constitution, and Kelly, J.M., The Irish Constitution, 3d ed. by Hogan, G. & Whyte, G. (Dublin, Butterworth Ireland, 1994) 944.Google Scholar

135 Feldman, supra n. 133, 685 et seq.; Barnett, H., Constitutional and Administrative Law, 2d ed. (London, Cavendish, 1998) 708 et seq.Google Scholar

136 §166 of the German Criminal Code makes punishable the libelling of any religious or philosophical belief if it is likely to disturb public peace. The Italian Constitutional Court has considered unconstitutional the more intensive protection of the Catholic religion in comparison with other religione (Decision of 18 October 1995 [Venice Commission, 68 et seq.]; Judgment no. 329 of 14 November 1997, EuGRZ 1998, 662 [German translation]). In Pakistan, however, the criminal law gives special protection to Islam (cf. the blasphemy laws in the Annex of U.N. Doc. E/CN.4/1999/NGO/31 of 29 January 1999). Under Article 19 of the Constitution of Pakistan, freedom of expression is subject to reasonable restrictions imposed by law in the interest of the glory of Islam.

137 Decision of 5 March 1991 (Choudhury v. U.K.), 12 HRLJ 172 (1991).

138 Cf. the Conclusions of the European Council of Helsinki (10/11 December 1999), §12 which confirms Turkey's status as a candidate for future accession. See also the statement to this effect by the German Federal Chancellor in the Federal Diet of 16 December 1999, emphasizing that the EU is not a club of the Christian Occident but a community of values which does not exclude states from membership merely on religious grounds (Internationale Politik 2/2000, 110, 113).

139 Cf. especially the Fifteenth Amendment of 1998 to the Constitution of 1973 (held “in abeyance” since 12 October 1999, following the military coup) which inserted into the Constitution Article 2B on the supremacy of the Quran and Sunnah. Voting rights have been linked to religious affiliation in that non-Muslims are only allowed to vote and be elected with regard to a limited number of reserved seats in the national and provincial assemblies (Articles 51, 106), which amounts to religious apartheid.

140 Raday, “Religion, Multiculturalism and Equality”, supra n. 3, 210 et seq.

141 Evans, M.D., Religious Liberty and International Law in Europe (New York, Cambridge Univ. Press, 1997), 17 et seq.CrossRefGoogle Scholar For a (milder) modern equivalent, see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute).

142 Article 3 of the Greek Constitution. The ECtHR found that, according to the Greek conception, the Orthodox Church represented de jure and de facto the religion of the state itself. Kokkinakis case (Judgment of 25 May 1993, Ser. A, Vol. 260-A), §14.

143 Cf., e.g., the Kokkinakis case, supra n. 142, concerning proselytism; the Manoussakis case, Judgment of 26 September 1996, Reports No. 17 [1996-IV], 1346, concerning the operation of non-orthodox places of worship, in which the ECtHR found violations of Article 9 of the ECHR; and the Georgiadis case, Judgment of 29 May 1997, Reports No. 38 [1997-III], 949, concerning the exemption of ministers from military service, in which the Court found a violation of Article 6(1) of the ECHR (right to a fair hearing with regard to claim for compensation for unlawful detention). On the difficulties of the Roman Catholic Church, cf. Judgment of 16 December 1997, Canea Catholic Churchv. Greece [Reports No. 60 (1997-VHI), 2843], finding discrimination with regard to the Church's right of access to the courts [Article 6(1) of the ECHR] taken together with Article 14 of the ECHR. On the difficulties of the Protestant Pentecostal Church, cf. Judgment of 24 February 1998 (Larissis v. Greece) concerning proselytism by military officers. On the difficulties of the (Turkish) Muslim minority in Thrace, cf. Judgment of 14 December 1999, Serif v. Greece, finding the punishment of a challenger to the government-appointed mufti to be a violation of Article 9 of the ECHR.

144 Article 4(1), (2).

145 The term refers to any religion whose doctrine and worship are clear and not concealed. Council of State, decision of 3 July 1975 (Venice Commission, 57).

146 Article 13(3) of the Greek Constitution.

147 Council of State, decision of 26 May 1998 (Venice Commission, 47).

148 Royal Commission on the Reform of the House of Lords (Wakeham Commission), A House for the Puture (Cm 4534, January 2000), Chapter 15, pp. 150 et seq.

149 Article 1 of the Constitution of 1958 prescribes laicism as a fiindamental element of the French Republic which must guarantee the equality of all citizens irrespective of their religion, etc., and respect all beliefs. Cf. Prélot, P.-H., “Les religions et l'égalité en droit français” (1999) 40 Les Cahiers de Droit 849.CrossRefGoogle Scholar

150 Preamble and Article 2 of the Turkish Constitution of 1982 (French translation in RUDH 1991, 154 et seq.).

151 The Establishment Clause of the First Amendment prohibits the establishment of a religion but what this means is controversial. Cf. Agostini v. Felton, 117 S.Ct. 1997 (1997), overruling Aguilar v. Felton, 473 U.S. 402 (1985); Mitchell v. Helms, 120 S.Ct. 2530 (2000).

152 Avis of 27 November 1989 (No. 346893), RUDH 1991, 152 et seq.

153 Cf. Grewe, C. and Rumpf, C., “La Cour constitutionnelle turque et sa décision relative au ‘foulard islamique’” (1991) RUDH, 121 et seq.Google Scholar The European Com-mission of Human Rights wrongly denied any interference with Article 9 of the ECHR in a case in which a Turkish State university refused to issue a degree certificate to a female student until she supplied a photo showing her without a headscarf (Decision of 3 May 1993, DR 74, 93). On the situation in Egypt, cf. Bälz, K., “Islamisches Recht, staatliche Rechtsetzung und verfassungsgerichtliche Kontrolle” (1997) 57 Zeitschrift für ausländisches öffentliches Recht und Volkerrecht 229 et seq.Google Scholar, referring to a judgment of the Constitutional Court of 18 May 1996.

154 Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995). Neither does the Establishment Clause prevent a State from lending educational materials to all private schools, including pervasively sectarian schools. Mitchell v. Helms, 120 S.Ct. 2530 (2000).

155 Heckel, M., “The Impact of Religious Rules on Public Life in Germany” in Vyver, & Witte, , Religious Human Rights, supra n. 16, 191 et seq.Google Scholar; Starek, C., “Religion and the State” in Starek, C., ed., Constitutionalism, Universalism and Democracy – A Comparative Analysis (Baden-Baden, Nomos Verlagsgesellschaft, 1999), 239 et seq.Google Scholar For a recent comprehensive survey of the relationship between State and religion in Germany, including comparative and international legal aspects, cf. the reports by Fiedler, W., Robbers, G. and Brenner, M. on “Staat und Religion” (2000) 59 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 199 et seq.Google Scholar (in German).

156 Cf. Hollerbach, HStR VI, §139 notes 24, 56.

157 In Russia, the Federal Act on Freedom of Conscience and on Religious Associations of 26 September 1997 (German translation in EuGRZ 1997, 527) also favors the Russian Orthodox Church. Cf. Jackson, V.C. & Tushnet, M., Comparative Constitutional Law (New York, Foundation Press, 1999) 1245Google Scholar et seq. In Ontario, Canada, the Roman Catholics, who are the largest minority denomination, receive preferential treatment with regard to public funding of schools, in violation of Article 26 of the ICCPR. Human Rights Committee, Views on Communication No. 694/1996, §10.6, supra n. 7.

158 Link, C., “Die gesetzlichen Regelungen der Mitwirkung der Kirchen in den Ein-richtungen des Rundfunks und Fernsehens” in Listi, J. and Pirson, D., eds., Handbuch des Staatskirchenrechts, vol. 2, 2d ed. (1995) 285, 299Google Scholar et seq.

159 Article 7(3) of the BL. But see also Article 141 of the BL. In Portugal, the Constitutional Court upheld, with its president casting the deciding vote, a law allowing only Catholic religion and moral standards to be taught in State schools, but hinted that the State might be required to offer the same accommodation to other denominations. Venice Commission, 91 et seq.

160 Heckel, M., “Religionsunterricht für Muslime?” (1999) JZ, 741Google Scholar et seq. But see the recent decision of the Federal Administrative Court, DVB1.2000, 1001.

161 general laws are those which do not specifically target either religion in general or a certain denomination (disparate treatment) but which, although neutral on their face, place a specific burden on religion or a certain denomination (disparate impact).

162 The freedom of conscience is normally expressly guaranteed in addition to the freedom of religion, so as to protect also conscientious decisions based not on religious but on secular grounds. See, e.g., Article 9, ECHR; Article 18(1), ICCPR; Article 4(1), BL; Article 53(1) of the Polish Constitution; Article 15(1) of the Swiss Constitution.

163 See, e.g., Article 4(3) of the BL; Article 99 of the Dutch Constitution; Article 9a(3) of the Austrian Constitution.

164 The ECHR and the ICCPR seem to give states party discretion whether or not to recognize conscientious objection. Cf. Article 4(3)(b) of the ECHR (but see ECtHR, Judgment of 6 April 2000, Thlimmenos v. Greece; §43); Article 8(3)(c)(ii) of the ICCPR (but see §11 of the general Comment no. 22(48), supra n. 7).

165 It is not by chance that treaty clauses for the protection of minorities often contain guarantees of religious liberty and equality, e.g., in the Treaty of Berlin of 1878 and in some of the Paris peace treaties after World War I. Evans, M.D., “Religious Liberty and Non-Discrimination” in Loenen, T. and Rodrigues, P.R., eds., Non-Discrimination Law: Comparative Perspectives (The Hague/London/Boston, Martinus Nijhoff/Kluwer Law Int'l, 1999) 119, 123Google Scholar et seq.

166 See Cohn, “Religious Freedom”, supra n. 16, 81 et seq. Mormon doctrine in the 19th century apparently obliged men to practice polygamy; the U.S. Supreme Court nonetheless upheld the government's ban on polygamy (Reynolds v. U.S., 98 U.S. 145 (1878).

167 BVerfGE 32, 98 (106 et seq.).

168 Employment Division, Dept. ofHuman Resources v. Smith, 494 U.S. 872 (1990). The Religious Freedom Restoration Act of 1993, Congress' attempt to overrule the Smith decision and compel the judiciary to employ a strict scrutiny standard, was ruled unconstitutional by the U.S. Supreme Court in City of Boerne v. Flores, 117 S. Ct. 2157 (1997). In 1994 Congress amended the American Indian Religious Freedom Act of 1978, to expressly permit the use of peyote in traditional religious ceremonies. Chartier, M., “La protection des religions autochtones en droit américain” (1999) 40 Les Cahiers de Droit 773, 788CrossRefGoogle Scholar et seq. On May 24, 2000, the Ohio Supreme Court held that under the Ohio Constitution even indirect encroachments upon religious freedom are subject to strict scrutiny. Humphrey v. Lane, 68 U.S. Law Week 1729 (2000).

169 Austrian Constitutional Court, decision of 17 December 1998 (Venice Commission, 8 et seq.). The German Federal Administrative Court wrongly denied such an interference, BVerwGE 99, 1 (7 et seq.); decision vacated and remanded by the Federal Constitutional Court (EuGRZ 2002, 97). Cf. Hassemer, W. and Hümig, D., “Die Rechtsprechung des Bundesverfassungsgerichts im Bereich der Bekenntnis-freiheit” (1999) EuGRZ 525, at 534.Google Scholar In its 10–7 decision of June 27, 2000, the ECtHR also found no interference in a similar case (Jewish Liturgical Association, supra n. 110). See also the Protocol on protection and welfare of animals annexed to the EU Treaty of Amsterdam of 1997 (OJ No.C 340, 110).

170 BVerfGE 32, 98 (106 et seq.). See also Article 9(1) of the ECHR; Article 18(1) of the ICCPR.

171 Sec. 4a(2) no. 2 of the German Act for the Protection of Animals (Tierschutzgesetz) expressly permits such exemptions but was interpreted narrowly and in a discriminatory manner by the Federal Administrative Court when it required evidence of a generally accepted religious commandment, which certain denomi-nations may not be able to furnish because they do not have a church bureaucracy (BVerwGE 99, 1). In contrast to the German approach, the Austrian Constitutional Court, supra n. 169, considered the prohibition of slaughter according to Jewish or Islamic rites an unjustifiable interference with the freedom of religion.

172 Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 141 (1987): “Where the State conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial” (emphasis omitted).

173 See supra n. 169.

174 Reynolds v. U.S., 98 U.S. 145 (1878): “Can a man excuse his [illegal] practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Wisconsin v. Yoder, 406 U.S. 205 (1972) 215–16: “[T]he very concept of ordered liberty precludes allowing every person to make his own standarde on matters of conduct in which society as a whole has important interests.” And see Employment Division, Dept. ofHuman Resources v. Smith, 110 S.Ct. 1595 (1990) 1603.

175 German Federal Administrative Court, DVBI.1994, 63. Swiss Federal Tribunal (BGE 119 Ia 178). For a conservative Christian claim to an equivalent exemption, cf. German Federal Administrative Court, DVB1.1994, 168 et seq.

176 The German Federal Constitutional Court, BVerfGE 47, 46 (76 et seq.) and the ECtHR, Judgment of 7 December 1976, Ser. A, Vol. 4 (Kjeldsen et al. v. Denmark) denied an exemption but emphasized that the instruction must avoid indoctrination and show restraint, tolerance and respect for religious and philosophical convictions.

177 The U.S. Supreme Court affirmed their claim to an exemption after they completed the eighth grade. Wisconsin v. Yoder, 406 U.S. 205 (1972). The German Federal Administrative Court denied religious parents an all-out exemption from the compulsory school attendance laws for their children. Neue Zeitschrift für Verwaltungsrecht (1992) 370.

178 Cf. Article 2 of the Protocol to the ECHR of 1952; Article 18(4) of the ICCPR.

179 In this area exemptions are denied on principle, either because the duty to pay is considered a neutral obligation that does not interfere with the freedom of religion, or because any such interference is considered justified. See, e.g., BVerfGE 67, 26(37); Federal Constitutional Court (Chamber), Decision of 26 August 1992 (2 BvR 478/92); U.S. v. Lee, 455 U.S. 252 (1982); European Commission of Human Rights, Decision of 15 December 1983, DR 37, 142, 147.

180 A landlord may be entitled to an exemption from laws that bar a refusal to rent appartments based on marital status if he or she objects on religious grounds to renting to unmarried couples. Cf. panel ruling in Thomas v. Anchorage Equal Rights Commission, 165 F.3d 69 (9th Cir. 1999); the en banc court ultimately dismissed the action for lack of ripeness, 69 U.S. Law Week 1090 (2000). Sometimes exemptions are also demanded from laws barring discrimination against homosexuals. Nadel, S.J., “Religion and Sexual Orientation at Work May Produce Combustible Combination” (1999) 68 U.S. Law Week 2163.Google Scholar

181 The Swiss Federal Tribunal rejected demands by a Muslim for a separate Muslim cemetery where tombs could remain eternally. BGE 125 (1999) I 300. See Kälin, W., Grundrechte im Kulturkonflikt (Zurich, NZZ Verlag, 2000).Google Scholar

182 The substantive inequality of the “majestic” formal equality of the laws was castigated by Anatole France: “[L]a majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.” Le lys rouge (Paris, Calmann-Lévy, 1924) 117f.

183 Cf. BVerwGE 99, 1(9).

184 Cf. BVerfGE 48, 127; 69, 1. See also the Act on Conscientious Objection to Military Service Involving the Use of Arms of 28 February 1983.

185 See, e.g., Judgments of 18 December 1996 (Valsamis v. Greece; Efstratiou v. Greece), Reports No. 27 (1996-VI), 2312 (§§34 et seq.), 2382 (§§35 et seq.).

186 Sec. 66d of the Code of Criminal Procedure. See BVerfGE 33, 23.

187 BVerwGE 107, 75, 84 et seq.

188 Article 12a(2) of the BL; §1 of the Act of 1983, supra note 184.

189 BVerfGE 78, 391 (395); 80, 354 (359 et seq.). But see §15a of the Civilian Service Act. See also Czech Constitutional Court, decision of 18 September 1995 (Venice Commission, 23 et seq.); Portuguese Constitutional Court, plenary decision of 5 December 1995 (ibid., 89 et seq.); Spanish Constitutional Court, decisions of 28 November 1994 and 28 March 1996 (ibid., 112 et seq.). But see the 3–2 decision of the Danish Supreme Court of 8 August 1995 (ibid., 25) and the decision of the Dutch Supreme Court of 18 April 1995 (ibid., 79 et seq.).

190 See A. Hollerbach, HStR VI, §140 note 39. But see the decision of the Italian Constitutional Court of 11 April 1989 (Venice Commission, 71 et seq.).

191 Sec. 11(1) of the Act on Compulsory Military Service; §10(1) of the Act on Civilian Service; von Campenhausen, HStR VI, §136 note 39.

192 On 9 December 1998, the Israeli Supreme Court held the practice to be illegal because it did not have a sufficient statutory basis. Rubinstein v. Minister of Defence, quoted from the English abstract in (1999) 20 Justice 35 et seq. Cf. the critical account of the practice by Raday, “Religion, Multiculturalism and Equality”, supra n. 3, 224 et seq.