Combating Religious Hatred the European Way

Introduction

Religious hatred can be looked at in a moral way. In that case, huge tensions are found between the high aspirations of religious message and the practical results achieved by concrete groups. Yet, during the past years, the idea grew that combating religious hatred is not just a moral issue to be dealt with between religious groups, but also an unavoidable political and legal topic. Security, cohesion in society, peaceful co-existence to a large extent depend on how political leaders, judges, philosophers tackle religious hatred.

In this contribution, I shall briefly analyse three different methods used in order to curtail religious hatred in today’s Europe. By today’s Europe I clearly mean Europe in the late aftermath of nine eleven. Indeed, we clearly see that the first reactions on the 2001 events are now behind us. The shock is over, but the long and lasting consequences of the brutal attacks emerge more prominently than ever before.

A first approach consists in limiting religious freedom more than it used to be the case in the past, of course without going beyond the parameters of article 9.2 of the European Convention on Human Rights (ECHR).

A second approach focuses more on protecting religion, by highlighting strongly the right of peacefully exercising one’s freedom.

A third approach does not so much focus on the limits of religious freedom, but tries to control better it’s influence in society. Religion may very well have a vision on society, yet also the opposite is thinkable: society can search for a consensus not so much inspired by religion, than by an overall code of conduct.

I shall describe these three trends, including some examples of the recent past, in order to make my point more clearly. Yet, I will try not to go back much further than, say, 2003, in order to illustrate the novelty of some current trends.

1. Limiting religious freedom.

A first attempt to deal with religious hatred, lies in eliminating possible hatred in a direct way. That includes the following series of possible measures.

1. Introducing the idea of abus de droit, abuse the law, in the sphere of religious freedom. This is a very hazardous strategy. Abus de droit comes from private law, more concretely from property law. One can imagine how to abuse property, for instance by building on one’s own land a large wall just to capture all the light, to the neighbour’s detriment. No problem occurs concerning that type of abuse. Yet, what about human rights and abuse? Talking about abuse of religious freedom, apart from the limitation clauses as accepted by international conventions, presupposes a hidden definition of religion which, as such, is incompatible with religious freedom.
2. Dissolution of religious freedom into various factors being part of it, is as such not very difficult. Religious freedom includes freedom of conscience, creed, organisation, expression, manifestation… One could single cut some “dangerous” components and tackle them separately. For instance, it is possible to limit freedom of expression in case it leads to religious hatred. Here, I clearly mean free expression of ideas by religious groups. The 2006 Religious Hatred Act in the UK can be looked at in that regard, although it also fits (and perhaps even better) in the second group of measures that I will describe infra. Indeed, the UK act focuses more on religious groups being insulted than on religious groups themselves insulting others.
3. So-called neutral security measures are issued more than before. An example: the prohibition of a burka worn on the street can be defined as security oriented, but at the same time it entails clear consequences for religious freedom. In Europe, where no US 1990 Smith case was necessary to come to a similar interpretation of religious freedom, security measures also or even predominantly affecting religious groups, pass without noteworthy difficulties.
4. A fourth approach includes more focus on passive neutrality without security clearly or directly being involved. Here, the French 2004 law on the signes religieux ostensibles at school offers an eloquent example. Headscarves worn by schoolgirls do not affect security, yet, according to the supporters of this law, they endanger the neutrality or laïcité of the state, implicitly or explicitly considered to be of utmost importance for social cohesion. In other words, security is created out of precaution in stead of just guaranteed in difficult moments. It is created by social cohesion, and the latter requires a high degree of public irrelevance and invisibility of religious groups.
   A measure similar to the French approach was taken in Antwerp, Belgium, at the end of 2006 with regard to civil servants working for the city. In the future, the wearing of headscarves will be allowed any longer. Is this measure a security measure? Perhaps it is, in the long run. Rather, at this very stage, it is more a measure meant to foster social cohesion, although in a not very generous or appealing way.

2. Extra protection given to religion.

The limitations as described in the first chapter were the “predictable” reactions in the aftermath of 11 September 2001. Yet, increasingly, another strategy emerges in Europe. The new method of the authorities is: let us be nice to religious groups, hoping that they will reward us for our friendly action. This approach may also be a sign of the increased power of religious groups. As often in society, the mighty are feared and thus they will be protected more than they will be curtailed. In a way, a lack of moral courage is even a characteristic of European politics after World War II. Anyway, here I just offer five examples to illustrate the new trend in Europe.

(1) Highly relevant is, of course, the jurisprudence issued by the European Court on Human Rights (ECHR). With regard to freedom of expression, the ECHR always had a generous attitude. Already in Handyside v. United Kingdom of 7 September 1976, freedom of expression (art. 10 ECHR) was defined as one of the essential elements of the democratic state, as well as a primary condition to its progress and its flourishing. Hence, a broad range of ideas can and should be expressed. This does not only concern ideas favourably received, or considered to be harmless and indifferent. Also hurting, shocking and disturbing ideas are protected. But then again, freedom is not limitless. National legislators can impose restrictions, in case three conditions are simultaneously fulfilled. The restrictions need to be (a) included in a law; (b) have a legitimate goal and (c) necessary for a democratic society.
Since the Markt Intern Verlag Gmbh and Klaus Burman v. Federal Republic of Germany case of 1989, freedom of expression is explicitly extended to commercial communication. At the same time, however, we see, with regard to this commercial communication, a more restricted control by the European Court on possible limitations imposed by member states. In other words, the three conditions that need to be observed for imposing restrictions remain intact, yet the ECHR leaves a larger margin of appreciation to the state authorities. Why? While freedom of press is a topic of high general interest, free commercial communication sounds less noble. It is not, again unlike freedom of press, a cornerstone of modern democratic society.
To sum up, certain aspects of freedom of expression, including commercial communication, are not protected as solidly as the terminology used in Handyside may suggest.
At the same time, freedom of religion is more thoroughly protected than before. That becomes very clear in a domain where a possible conflict between freedom of expression and freedom of religion can no longer automatically be excluded. An enlightening case remains Otto Preminger Institut v. Austria of 20 September 1994. Here, the ECHR accepted the prohibition by the Tyrolian authorities of an openly anti-clerical film, with as a motivation the right of the faithful to peacefully enjoy and practice their religion.
In any case, Otto Preminger Institut describes religion as one of the vital elements contributing to the elaboration of people’s identity. This central idea leads to two, at first glance fully compatible, yet very different ideas. Firstly, people have the right to believe or not to believe, as well as the right to manifest their religion without interference by the state. This first aspect of religious freedom is a quite traditional one. It surprises nobody. Yet, secondly, religious freedom also includes the peaceful exercise of religion. That right must be guaranteed by the state. No problem exists as long as the state prohibits any violence, force and fear that can hinder religious people. Yet, what happens in case insult or blasphemy are also taken into consideration? Indeed, one could, yet not should, qualify them as necessary for a peaceful practice of religion. On this level, a clash between freedom of expression and freedom of religion becomes very plausible.
According to Otto Preminger Institut, given the variety of legal positions enjoyed by religion in Europe, the margin of appreciation granted to member states should, in a case like this one, be quite large.
Why do I mention the jurisprudence of the ECHR explicitly? Firstly, of course, because of its paramount importance for European law and case law in general. And yet, there is another reason. Freedom of expression seems to be slightly less protected than a few decades ago. And freedom of religion seems to be in a better position. This evolution has some consequences with regard to possible strategies for combating religious hatred in Europe. Limiting freedom of expression in order to protect the peaceful practice of religion, including the right not to be hurt deeply in one’s religious feelings, is not entirely incompatible with the position of the European Court. What follows, illustrates this thesis.

(2) In 2006, new religious hatred laws were approved in the United Kingdom. The new offence is designed to stop hatred being whipped up against people because of their religion – not just their race. It would ban people from intentionally using threatening words or behaviour to stir up hatred against somebody because of what they believe. Was a new law necessary? Sikhs and Jews already had full protection because the courts regard them as distinct races. But Christians, Muslims and others have not been given the same protection because they do not constitute a single ethnic bloc. Northern Ireland has its own laws to deal with sectarian discrimination between Protestants and Catholics.
What if someone hates a religion because he or she thinks it is a threat? Here, the British government argues that the test for what counts as incitement is high enough to ensure that free and robust debate about beliefs can continue as before.
The final version of the law clearly changed under the pressure of the House of Commons. It contains specific freedom of speech safeguards aimed at ensuring that people can only be found guilty if they intend to sir up hatred. Only threatening words and behaviour would be banned, and not a merely critical, abusive or insulting approach.
That distinction, at least, is the purpose of article 29 J of the Religious Hatred Act 2006: “ Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of their adherents, or proselytising or urging adherents of a different religion or belief systems to cease practising their religion or belief system.”
Is this section always compatible with the rest of the act? The future knows the answer. In any case, the Religious Hatred Act divided British society. A poll organised by the BBC between 8 and 10 July 2005 showed that the defenders of the new law and those in favour of free speech were almost equally strong.

(3) Blasphemy became an issue again. In that regard, two cases probably were more spectacular than others.
British author Salman Rushdie’s novel The Satanic Verses was seen by many Muslims to contain blasphemes against Islam, and Iranian spiritual leader Ayatollah Khomeini issued a fatwah in 1989 calling for Rushdie’s death. Strictly speaking this was a response to Rushdie’s claimed apostasy, not the novel’s supposed blasphemy. Yet, the case opened the debate on the latter issue. Some British Muslims called for Rushdie to be tried under English law for blasphemy, but no charges were laid, as the English legal system recognises blasphemy only against the Christian faith.
The Rushdie case stimulated debate on this topic, with some arguing the same protection should be extended to all religions, while others claimed the UK’s ancient blasphemy laws were an anachronism and should be abolished. Finally, the law was not amended.
Yet, when in 2005 the controversy on the Danish cartoons representing the prophet Muhammad emerged, more voices than before were heard in favour of the limitation of freedom of expression for blasphemy reasons. The Flemish left wing writer Kristien Hemmerechts said during a debate on television: “If a small restriction on the freedom of expression is the price we have to pay, I will be happy to do so. We should not complain.” Others continue advocating freedom of expression, or make a distinction between legal freedom of expression and social politeness, the latter sometimes leading to voluntary self-restriction. In any case, whereas with regard to Salman Rushdie, Europe, generally speaking, seemed unwilling to punish blasphemy, the situation, in 2005 or 2006, became significantly less clear.
In the meantime, many European countries still have legislation on blasphemy, such as Austria (articles 188 and 189 of the criminal code), Finland (section 10 of chapter 17 of the penal code), Italy, the Netherlands (article 147 of the criminal code), Spain (article 525 of the criminal code) and, as already mentioned, the United Kingdom. For the time being, these norms are not always or even not often enforced. Yet, a swing of the pendulum is not unthinkable. After all, the norms still do exist.

(4) Protection of religious symbols against freedom of expression in France: at fist glance, this sentence sounds peculiar. And yet, even in the country of laïcité a trend towards more protection of religious feelings does exist. This evolution can be illustrated by a decision of the Cour d’appel de Paris of 8 April 2005. Although the Cour de Cassation annulled this decision on 14 November 2006, the case deserves to be discussed more at length.
A commercial company, the société Marithé François Girbaud, launched a publicity campaign for a new fashion collection for women. The campaign used as a starting point the famous Last Supper painted by Leonardo da Vinci. In stead of Jesus Christ and his apostles, the publicity poster showed women wearing clothes of the Girbaud-collection, yet sitting in the exactly same position as Jesus and his apostles. The poster appeared in the press, and was also present in the streets of Paris. The association Croyances et libertés went to court, arguing that the publicity campaign harmed the religious feelings of Catholics in an intolerable way. The judge of first instance shared this viewpoint, and qualified it as an “aggressive intrusion” hurting directly involuntary spectators finding themselves in the public space.
The Cour d’appel de Paris confirmed this decision. Using one of the most significant symbols of Christianity for commercial and publicity aims caused grave insult to the faithful, leading to a form of trouble that is clearly illicit, so ruled the Court.
Did this decision reveal a new trend towards punishing blasphemy in France? According to some observers, it did. On 12 March 2005, the newspaper Libération published an article under the title: “Le retour en grâce du blasphème.” Others, like the legal scholar Alan Gautron, remain more moderate. Yet, the title of an article written by Gautron shows exactly the dilemma’s of the current debate: L’exploitation publicitaire des symboles religieux et le juge: A la recherche d’un équilibre entre liberté d’expression et droit au respect des convictions intimes.
Alan Gautron argues why, in this case, the Cour d’appel is allowed to give way to the protection of intimate convictions of the faithful. The creators of the publicity use a fundamental religious symbol for an exclusively commercial goal. In this concrete case, we meet with the four constitutive elements of an insult, namely (a) an expression characterised by insulting or despising terminology; (b) indicating a determined person; (c) guilty intention; (d) public character of the offence.

Already in 1985, professor Lindon, commenting on a first instance decision in Paris in 1984, de Ave Maria case, wrote that a decision against unlimited freedom of expression in a case like this “should not be seen as the victory of a religious doctrine, but as a contribution to the spirit of reciprocal respect which is one of the elements of public peace.”

This learned conclusion sounds nice and convincing, and yet, should reciprocal respect obtain a legal status, thus possibly limiting an extremely important right such as freedom of expression?

Fortunately, as I see it, the Cour de Cassation annulled the decision of the Cour d’appel on 14 November 2006. According to the French Supreme Court, the publicity did not intend to insult catholic faithful. There was no personnel and direct attack against a group of persons based upon there religious adherence. Therefore, manifestly illicit trouble did not occur in this case.

Yet, the conclusion of this discussion is that, even in France, a trend emerges towards protecting religions against freedom of expression.

(5) In 2006, the then Dutch Minister of Justice, Piet Hein Donner caused a lot of discussion with a controversial statement. He expressed the opinion that the Netherlands should welcome Islam as a new pillar in society. And he added: “This is also true in case the sharia were to be introduced. If two third of the Dutch choose in favour of sharia, then this possibility will be realised.” For Donner, this is true democracy: the majority rules. Later, the minister nuanced his statement. And let us be honest, it is clear that ‘democracy’ is more than a majority that rules. It also includes the rule of law, and the strict application of fundamental rights including freedom of press. Yet Donner’s opinion clearly shows a paradigm shift. In the aftermath of nine eleven, restrictive measures towards religion tended to be seen as the best way to guarantee security. Today, a welcoming or – sometimes – a fearful attitude towards religious groups is becoming more common.

3. Moral Esperanto

Moral Esperanto is the English translation of a book published in 2007 by the Dutch author Paul Cliteur. The way of thinking pursued by Cliteur, who is a brilliant scholar, turns out to be typical for the more liberal (in the European sense) way of thought today.

Starting point of the reasoning is that we live in confusing times. Religiously founded moral judgements enter into conflict with non-religious moral judgements. How can we solve this tension? Paul Cliteur is sceptical vis-à vis the traditional call for dialogue. This dialogue often means a less critical attitude towards the religious phenomenon. Together with this dialogue-attitude goes self-criticism concerning our own Western arrogance. Indeed, so continues the reasoning, terrorists feel often insulted and humiliated. By confessing our guilt, their anger may decrease.

Paul Cliteur rejects such an approach, as it strenghtens religious fanatics in their opinion. When we apologise all time, they will be more certain than ever about the fact that they are right. Instead of this approach, Cliteur fosters another attitude, namely the attempt to find a basic consent underpinning a multi-religious society. Consent is to be found in non-religiously founded, autonomous ethics. This moral Esperanto can and should be spoken by both believers and non-believers.

Paul Cliteur elaborates this idea in three parts. In a first part, he describes and rejects strong links between ethics and religion. The Good is the same as the will of God. The latter tells us what we should do. Clearly, this is not the road Cliteur wants to take.

In the second part of his book, the author offers an alternative way of thinking: autonomous ethics. Only a moral Esperanto makes a true dialogue possible. Cliteur illustrates his viewpoint with an example. People of different nationalities are together in one room. In that case, the custom is that we try to speak a language that everybody understands. It would be strange if someone vigorously claimed the right to speak his own language, continuing to express himself in that language, although not being understood by any one else present in the room. The conclusion can be clear: autonomous ethics, even though not perfect, is the only solution.

In the third and last part of his book, Cliteur applies autonomous ethics on politics and society. He strongly advocates a strict separation between religion and state. The state should look at people as citizens, not as members of a religious group. Therefore, Cliteur’s approach is not multi-cultural but universalistic. In his eyes, a multicultural society should be regulated by autonomous ethics in relationship with a neutral state.

The way of thinking as followed by Paul Cliteur is commonly met with in current European thinking. It looks and sounds very rational, yet it can be criticised on three different levels.

Firstly, Cliteur has a very rational idea about ethics. For instance, he criticizes the ethics of Jesus Christ because they are not really systematic, whereas the latter is probably their strength. Indeed, when ethics are a true system, a deductive approach is inevitable. The system is applied on reality. Needless to say that such an approach is highly debatable.

Secondly, Cliteur lacks a deeper insight in the religious phenomenon. This attitude is typical for an important part of current Western-European philosophers. Cliteur writes: “Everybody is free to believe in one or more Gods” Legally, this statement is entirely correct. But does it also work really like that in daily life? For instance, one could say: “Everybody is free to fall in love.” But how do you explain that to young teenagers full of dreams, and full of desire? Falling in love is not always a ‘choice’, certainly not a rational choice. Neither is opting for religion and faith.

Thirdly, what about Esperanto? It is a language created by men. Yet, it was not created out of the blue. Other languages already existed. They were given shape organically. It is in these languages that human beings are more fluent than in others. Esperanto, of course, will always be an artificial language. And yet, human beings are most at home in languages that they did not create themselves.

Final thoughts

Combating religious hatred the European way: this was the title of this paper. In my contribution, I distinguished between three different approaches, none of them being entirely convincing.

The first approach was popular in the immediate aftermath of nine eleven. It tended to prefer security to religious freedom, ignoring the fact that in many cases the paradox is just an illusion. Indeed, rather often religious freedom helps to achieve security.

The second approach is more recent. By focusing on the right to a peaceful use of one’s religious freedom, law and jurisprudence tend to curtail religiously inspired insult and blasphemy. Although, obviously, respect for religion is more than positive, the second approach focuses too much on the clash between freedom of expression and freedom of religion. This is regrettable for two reasons.

Firstly, freedom of expression remains tremendously important. Without criticism and self-criticism, Europe would not be Europe anymore.

Secondly, the idea that freedom of expression and freedom of religion are rivals, should be avoided. They are both pivotal human rights.

The third approach, the moral Esperanto, is perhaps too rational and, even more so, too artificial to become the way of the future.

It is more a system to be brought in practice than an answer to question asked by people and society.

What is the approach that should be stimulated in Europe? My preference goes to a model friendly to religious freedom and religious groups. Yet, it should be a model also welcoming the importance of other human rights in general and of freedom of expression in particular. Therefore, legal measures against religious insult or blasphemy are dangerous. But then, a distinction should be made between the right to express unpleasant ideas and the concrete behaviour of people. Not all that can be expressed, should be said. That is true with regard to opinions concerning religion. It is equally true for every day contacts between people, including between partners in marriage.

When Europe is at its best, it goes for generous religious freedom, together with courageous freedom of expression and with politeness and fair play in order to use these rights with due respect for the belief, the ideas and the feelings of others.

Rik Torfs