Member of the Constitutional Council of the French Republic

Paris 

                Many people are insisting on changes in religious liberty as it faces the proliferation of new movements whose originality and vigor both attract and give concern. First of all, is it necessary to call these new movements “religious” in order for them to benefit from arrangements in place for the revealed religions? Or should one go even further by providing financial help as compensation for their inferior status (due to their recent birth) in comparison with the older religions? Moreover, could not this reasoning be applied to older religions which have been increasing in membership within certain states?

                Consider the sect phenomenon. The word “sect” has a pejorative connotation in some of the nations unaccustomed to the ferment of religious denominations in Anglo-Saxon societies. A legal theory has developed which holds that a sect is different from a religion and therefore does not have the right to benefit from the protection of national and international instruments relating specifically to religion. So it is necessary to determine with some precision the criteria that will define what a sect really is. Several have been suggested. 

                * A small number of members. It is easy to draw attention to the contradiction that exists in using such a criterion at the very time when respect for minorities is proclaimed as a national and international principle. When one takes an internal view of the notion of religion, one cannot but note that there are religions whose character is not, or at least is no longer, contested. And there are religions which, for reasons of theology, choose to be religions of their professing members only, deliberately remaining outside the general population. One would have to expect quite a number of deceptions when one uses the quantitative criterion.

                * Eccentricity. If eccentricity is defined in relation to reason, then no religion can avoid the label of a sect.  For it is the very nature of faith to be at least in some ways irrational and mystical. Wrote Tertullian: “I believe in that which is absurd.” Back in 1912, the Court of Appeals in Paris, in an opinion regarding spiritism and its relationship to Article 901 of the Civil Code, stated that “all religious beliefs are essentially respectable, provided they are sincere and held in good faith, and it is not the right of civil judges, whatever their personal opinions and beliefs, to attack, criticize, or condemn them” (D. 4 December 1912. D. 1914.2.213).

                * Newness. It is probably this third criterion, without being explicit, that plays the largest role because it is simple to verify and perhaps also because time is a dimension familiar to law. In this case a sect would be, basically, a religion that is being born. This approach ignores phenomena which have been analyzed in the science of religions:  dissidents, schisms, heresies, and reforms, which attest to the possibility of new confessions coming into existence instantaneously. By setting up barriers to religious experience and forbidding all creativity in theological research, this criterion fails to recognize freedom of conscience in one of its essential forms. It is true that the objection to newness is sometimes transposed from history to geography, and thus becomes a sort of extraneous objection. But this is an inadmissable argument. In fact, it would be valid against more than one established religion--and even, perhaps, against Christianity as a whole. In law, newness is condemned by the principle of free communication, which is found today in Article 10, Paragraph 1, of the European Convention guaranteeing human rights and the freedom of each person to receive or to communicate ideas without consideration of borders. 

                One can see, then, that the concept of “sects” is hard to pigeonhole. Is this not also the case for religion? Does anyone know today exactly what is a religion? (See Jacques Robert: “Accepter la foi” in Le Monde des debats, February 1994, p. 9.) One could say that religion is defined by two elements, one objective, the other subjective.

                The objective element is given by the existence of a community. A community is not simply an accumulation of individuals. It is a coherent group.  t is a moral entity. Religion is a collective phenomenon. This does not necessarily mean a mass phenomenon. There are churches that wish to see themselves as national, while others view themselves as minority churches, even as micro-minorities. French law has wisely refused to incorporate confessional statistics within its norms. Article 19 of the law of 1905 is important in this connection. With regard to the establishing of a worshiping community, the law in no way considers the number of faithful attached to the particular confession.

                The second element, the subjective element, is faith. Faith has its seat in the individual conscience.  Nevertheless, it is not a solitary conscience, for it is the reciprocity of consciences which makes for a religion. Thus the two elements, objective and subjective, cannot be separated. You need to have faith in order to give sense or meaning to a group, but you need to have a group, no matter how small, in order to have faith emerge from its interior manifestation, something law cannot grip. A group’s cohesion is based on its common faith, its spiritual communion, and its package of beliefs. But how does one characterize religious faith or belief? One could be tempted to define the character of faith through the various acts that manifest it: practices, observances, rites, liturgies, sacraments. The fact is that these manifestations are often of an original nature which signify the presence of a religion.

                The argument, however, is not decisive. After all, there are municipalities that have organized civic baptisms and courts have their own rituals. Acts and manifestations are empty forms. Only the belief that animates them provides them with a religious significance. It becomes necessary, then, to go back to the heart of the question: the object of belief. Not every conviction is a faith; neither is a political party nor a philosophical school a religion. The essence of religion is the appeal to a divinity (at the least, to a supernatural power), to that which is transcendent, absolute, and sacred. Of course, formulas of the appeal vary. Not all cases are subject to scrutiny. For  example, there can be an imprecise zone between the invocation of the supernatural--which is religion, and speculation about the metaphysical--which is only philosophy. But in general, belief in a god brings about religion--without, nonetheless, requiring any external representation whatever of this god.

                It must be said that no religious movement can place itself above the laws. Every church, every association, every sect must answer for its acts. French law does not allow condemnable acts to go unsanctioned. Those engaged in an extreme kind of proselytism--who, voluntarily or not, break the law--place themselves on the margin of society.  Penal infractions are precisely defined and quite numerous: fraud, abuse of confidence, violence, illegal detention, failure to assist people in danger, acts against public morals, white slave traffic, the illegal practice of medicine, and the kidnaping of children, to cite just a few.

                Without necessarily going to court, public authorities can either declare nonexistent an association founded for illegal purposes or conducting illegal activities, or administratively dissolve such an organization on the basis of the ordinance of October 2,1943, which authorizes the dissolution of groups or associations “having an activity contrary to liberty of conscience and liberty of worship.” Public authorities can also invoke the law of June 10, 1936, revised in 1972, regarding armed groups or private militias. Whether we are dealing with ancient religions or new, the state cannot, on the basis of evidence, tolerate the least infringement of law and order.

                Without doubt there are different interpretations of the concept of public order. But let us not confuse public order and social order with moral order and religious order. Since 1905, the secular state has respected and protected the various churches. But one cannot forget that Judeo-Christian thinking produced the mentality of the west and that we are more familiar with certain churches or religions than with others--those which shock us by their exterior aspect, their esoteric nature, and their ostensible adherence to beliefs and rites foreign to our culture.

                Having said this, are we not facing the risk of possible discrimination between old and new religions to the extent they do not exercise equal influence on national culture nor occupy the same place in history? Though public law cannot ignore such religious specificities, the recognition of differences between various ways of worship should in no case lead to discrimination between them. The concept of equal protection by the state should not disappear in the face of differentiation. It is certainly permitted, however, to ask if reverse discrimination is not beginning to take place before our very eyes. How? By giving special privileges to the new religions simply because they have been ignored or neglected.

                The author is honorary president of the University of Paris (Le Sorbonne). Translated from the French. Condensed and edited from an address by Professor Robert to the IRLA’s Fourth World Congress on Religious Liberty, Rio de Janeiro, Brazil, 1997.

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