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Church-state relations in the European Court of human rights

Evans, Caroline and Thomas, Chris (2006) Church-state relations in the European Court of human rights. Brigham Young University Law Review , 2006 (3). pp. 699-726. ISSN 0360-151X

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Abstract

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1 does not deal directly with the relationship between church and state in European countries. In this respect, the ECHR is like most other international human rights treaties that, to the extent that they deal with religion, emphasize religious freedom and nondiscrimination on the basis of religion.2 Unlike some domestic constitutions, these treaties do not require a particular degree of separation or attachment between religions and the state and they do not explicitly prohibit establishment.3 The ECHR does, however, indirectly regulate the permissible forms of relationship between religious institutions and the state by reference to religious freedom. This article explores the ways in which the requirements of religious freedom in the ECHR permit certain types of relationships between Church and State (including some that would be impermissible in countries such as the United States) but also restricts the scope of permissible relations. The focus of the European Court of Human Rights ("the Court") with regard to religion is summarized in a passage that it used in the case of Kokkinakis v. Greece and has repeated in every major religious freedom case since: [F]reedom of thought, conscience and religion is one of the foundations of a "democratic society" . . . . It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset to atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.4 These words are at the heart of the European approach to religious freedom cases brought under the ECHR. The passage acknowledges the importance of religious freedom to society but does not deal in any detail with the precise nature of the relationship between church and state except to say that religious freedom, rather than religion itself, is a "foundation" of a democratic society and indissociable from pluralism.5 The state itself, therefore, must be democratic and pluralistic in order to fit within the requirements of the ECHR,6 and it must respect religious freedom, but within those boundaries, there is no requirement or prohibition of establishment between church and state.

Item Type: Article
Official URL: http://lawreview.byu.edu/index.php
Additional Information: © 2006 Brigham Young University, Reuben Clark Law School
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 15 Sep 2011 13:03
URL: http://eprints.lse.ac.uk/38247/

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