BYU Law Review
Volume 1999 | Issue 2 Article 10
5-1-1999 An Analysis of the Impending Disestablishment of the Church of Sweden E. Kenneth Stegeby
Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Christian Denominations and Sects Commons, and the Religion Law Commons
Recommended Citation E. Kenneth Stegeby, An Analysis of the Impending Disestablishment of the Church of Sweden, 1999 BYU L. Rev. 703 (1999). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1999/iss2/10
This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
An Analysis of the Impending Disestablishment of the Church of Sweden*
I. INTRODUCTION There is a contem por ary t ren d in som e E uropean countries to strengthen the relat ions between one or more preferred de- nomination s and the state, at the expense of other religions. Austria, for example, recently “passed a new law creating a second cla ss of religion s t hat are not ent itled to the full benefits and protections afforded traditional religions.”1 The state of Austria recognizes only twelve religions.2 Other denominations are not considered religions but are only identified as “Confes- sional Comm un ities.”3 Before being recognized as a religion, the new law requires that an association have at least 16,000 mem- bers, that its “teachings are not considered dangerous by the govern ment ,” and that it spend ten or twenty years as a Confes- sional Com munity, depending on wheth er t he a ssociat ion al- rea dy has a pp lied for recogn it ion as a religion .4 The Chu rch of Sweden , originally a Ca th olic province, be- came a state church through the Reformation.5 It was decided
* The author Kennet h S te geby , a S wed ish na tion al, re ceive d h is J .D. fr om t he J. Reuben Clark Law School, Brigha m Young Universit y in April 1999. He wou ld like to th an k Ur ban Gibson for h is ass ista nce in p roviding source mat erials an d comments on various issues in r elation to the disest ablishmen t of the Chur ch of Sweden. 1. Christopher J. Miner, Losing My Religion: Austria’s New R eligion Law in Light of In tern ati ona l an d E ur opean S tan da rd s of R eligi ous Freed om , 19 98 BYU L. REV. 607, 607. 2. The twelve recognized religions in Austria are: The Cat holic Church, The Protestant [Luthera n] Church, The Gr eek Orient al Chur ch, The Old Cat holic Church, Th e Ar me ni an Apostol ic Chu rch, The Syrian Orth odox Church, The Methodist Chu rch, Th e Chu rch of J esus Chr ist of Lat ter -Day Saint s (Mor mo n), The Jewish Religious Comm un ity, Is lam , and the Austrian Buddhist Reli giou s Soci et y. . . . T he tw elve re cogni zed re ligion s are exempt from meeting the new requirements. Id. at 608 n .9. 3. See id at 607-08. 4. Id. at 607. 5. See Regeringens skr ivelse till kyrkomötet: Ändrade relationer mellan stat en och Svenska kyrka n [The Governmen t’s Draft Proposal to Kyrkomötet: Changed Relations Betw een th e St at e an d th e Chu rch of Sweden ], RegSkr 1995:1 § 1, at 4
703 D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
704 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 in 1593 t ha t t he new stat e chu rch would be of an evangelica l- Lutheran nat ure and that strong ties between it and the state should be developed.6 Su bsequen tly, the Church of Sweden Act of 1686 provided that the secula r sta te, especially t he King, should be responsible for and should r egulate the Church,7 which wa s t o be the official r eligion to the exclusion of all other denominations. However, in contrast to its fellow European member states, the Swedish government presented, and the parliament passed, a proposal8 in 1995 which crea ted a veh icle for the disestablish men t of the Church of Sweden by J anuary 1, 2000.9 This proposal did not attempt to resolve all of the prob- lems that naturally will occur when changing a nation’s funda- mental structure, system and laws. Instead, when the govern- ing body of Sweden decided as a matter of pr in ciple that the Church of Sweden should be disestablished by the year two thousand, it only suggest ed solu tions t o som e qu estions. It left other concer ns t o be in ves tiga ted, debated and r esolved befor e completing the separation between the Church and the state. Many nations enact legislation to regulate how religious associations may obt ain legal en tit y status. Su ch regu la tion may be enacted for honorable or dubious purposes, however. To illustrate, Russia and the individual states of the United States have ena cted laws governin g th e legal status of religious associ- ations.10 These laws appea r simila r in th at th ey “chara cteristi- cally descr ibe the ba sic qu alifications for settin g up legal en ti- ties, the formalities that must be included in charter documents, descr iption of the in st it ution al m ech anisms for processing such documents, grounds for dissolution, and so
[hereinafter RegSk r 199 5:1] (tra ns. b y th is au th or). 6. See id. 7. See id. 8. See id. 9. See Konstitut ionsutskott ets betä nkande: Stat en och trossam funden— grun dla gsfr ågor m.m. [Consideration of the Department of Constitutional Questions: The Stat e and t he Religious Denomina tions, etc.] 1997/98:KU20, at 1, also available at (visited March 16, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 705 forth.”11 Nonetheless, at least one aut hor has made a dist inction between the underlying purposes of these laws: [I]n th e U nite d S ta te s, t he p rim ar y im pe tu s of su ch la ws is
to facilitate religious act ivity by m ak ing flexible e nt ity structures easily available to religious groups so that a re ligiou s as sociat ion ca n u se t he se ve hicles to car ry out its re ligiou s mission. In Russia (and much of Eastern Europe, for that matter ), there is a much greater tendency to assume that the purpose of such laws is to effectuate cont rol of re ligiou s org an iza tion s an d t o pr event tr oub lesom e groups from obtaining legal entity status.12 The question is whether the motivation for the Swedish refor m is honorable or du bious. At t he t ime t his ar ticle is written, less than one year remains until the ties between the Church of Sweden and the state will be dissolved. The state- church relat ionsh ip has developed over hu ndreds of years, an d cannot easily be discarded. As will be seen, even th ough th e governing body h as d ecid ed to pu t the Church of Sweden on equal footing with other denomina tions—a ver y commendable objective—it is not easy to create one law that equally governs all faiths, part icular ly when th ere ar e strong hist orical ties between the state and one or more denominations. The year-two-thousand reform will produce the Religious Denominat ion Act th at will govern all r eligious associations, including the Church of Sweden . Th e Act will en able ea ch denominat ion to register to obtain constitutional protection, including protection for its organization and religious beliefs. On the other ha nd, the parlia men t a lso ena cted a special Church of Sweden Act, which will specifically govern the Church after the r efor m. Th is sp ecia l Act may be to som e an in dication of a dubious attempt on the part of the parliament to preser ve the historical, preferential status of the Church. However, this author believes that desp it e t he specia l Act , which may be a symbolic gesture to the Church at the end of the Swedish state-church er a, t he parlia men t’s motives for reform ing stat e-chur ch relat ions are h onorable and based on a genu ine interest in promoting religious freedom and equalit y
11. Id. 12. Id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
706 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 among, and constitut ional protection for, a ll d en omin ation s. The year-two-thousand reform is sim ply a substa nt ial and necessary step in the process of completely severing the ties between the Church and the state. This Comm ent will an alyze and describe the efforts to disestablish the Church of Sweden in order to illustrate how one nation dealt with the difficulties a state-chur ch regime faces in today’s modern , plur alistic world. Part II of this Comment descr ibes t he r ise of t he Church of Sweden as a Cat holic province and the ensuing reformation, which changed the Church into an evan gelical-Lut her an denominat ion. This Part also reveals the str uggle for power between th e Cath olic Church and state, which fueled the reformation. Part III discusses the deve lopmen t of freedom of religion in Sweden and the influence of the Freedom of Religion Act on the impending disestablishm ent of the Church of Sweden. Part III also high light s various attempts at reforming state-church rela tion s up until the parliament made the decision in 1995 to disestablish the Church. Part IV analyzes the government’s 1995 proposal, parts of the su bsequent Church- and st ate- sponsored investigat ions, and t he parliamentary debate and decisions, all in an attempt to provide solut ions t o existing a nd anticipated problems and questions in conjunction with the disestablishm ent. Lastly, in Part V, the author concludes that although the Swedish government is int ent on severing the ties between the Church an d the sta te, t he str ong historical an d politica l relat ionship between the two institutions prevents a wholesale sepa ra tion at this time. Some prefer en tia l trea tmen t of th e Church of Sweden will appear t o exist at least formally in the newly devised laws governing religion in Sweden. The upcoming disesta blishmen t should not be viewed as a complete separation; rather, it should be viewed as one more step—a substantial one—in the pr ocess of completely separating the Church and the state. Just as it took Christianity several attempts an d thr ee hun dred yea rs to overcome the pagan religion in Sweden, furth er reaching reforms will be required before Sweden achieves full equality between all denominations. The development of the Church of Sweden has D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 707 been one of evolu tion rather than revolution .13 The disestablishment that will take place in the year two thousand is no different.
II. THE RISE OF THE CHURCH OF SWEDEN Sweden is a fairly young nat ion-state in view of t he h istory of other European nations. Svealand and Götaland,14 two provinces of presen t-da y Sweden, merged around 900 A.D. and formed the foundation of the modern Swedish state.15 The you ng na tion did n ot ea sily conver t t o Christian ity. By m ost accounts, th ree hu ndred year s pa ssed from t he t ime th e first missionary appeared in Sweden until a solid foundation for Christian ity was laid in Sweden.16
A. S weden’s Em ergen ce an d th e Ch ristian Missionaries In response to a request for Christian m issionaries by King Björn of Birka,17 King Louis the Pious of Aquitaine and the Franks18 sent Ansgar, a Benedictine monk, to the northern na
13. A slow er pr oces s of ch an ge m ay not be a ll ba d. I n fa ct, Edmund Burke preferred evolu tion over re volu tion : In th is s en se t he re st ra int s on men , as well as th eir liberties, a re to be reckoned among th eir rights. But as th e liberties and t he restrictions vary with tim es a nd cir cum sta nces a nd a dmit to infin ite m odification s, th ey cannot be settled upon any abstract rule; and nothing is so foolish as to discuss th em u pon t ha t pr inciple...... The science of constructing a comm onw ea lth , or r en ovat ing it, or reforming it, is, like e very oth er exp erimen ta l science, not to be t au ght a priori. EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 69 (Thomas H .D. Mahoney ed ., Macm illa n P ub lis hi ng 195 5) (17 90). 14. The Swe des come from ma ny differ en t t ribes , su ch a s t he väs tgöt ar, östgötar, värmlänningar, finna r och s vear . See HERM AN LINDQVIST, HISTORIEN OM SVERIGE: FRÅN ISLOSSNING TILL K UNGARIKE [H ISTORY OF SWEDEN: FROM THE END OF THE ICE ERA TO KINGDOM] 209 (1992) (tr an s. b y t hi s a ut hor). 15. See id. at 17. 16. See REV. H.M. WADDAMS, THE SWEDISH CHURCH 1 (Greenwood Press 1981) (194 6); BRITA STENDAHL, THE FORCE OF TRADITION: A CASE STUDY OF WOMEN PRIESTS IN SWEDEN 65 (198 5) (“The christian izing of Sweden began in the ninth century, but it took thr ee centu ries before the count ry could be cons idere d a Ch rist ian country . . . . ”). 17. The city of Bir ka wa s a t t his per iod S wed en ’s most im por ta nt center of tra de. Birka was located about eighteen miles west of present-day St ockh olm. See WADDAMS, supra note 16, at 1. 18. King Louis was th e King of Aquitaine from 781 un til 814, and King of the D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
708 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 tion in 829.19 Ansgar established the first Swedish congr ega tion , which consisted of Christian slaves and some native Swedes.20 Chr istian ity’s initia l success in Sweden would be short-lived, however, as a str ong pa gan reaction to the Chr istian conversion formed.21 On the ot her hand, in add it ion to missiona ry efforts, the growth of Christianity was promoted by the fact that Swedish commercial and political interests shifted from Russia in the East to the European continen t in the South.22 Consequen tly, in th e ea rly 1000s, Olov Skötkonung became th e first Swedish King to be baptized a Christian.23 At the end of th e eleven th cent ur y, “[the pagan ] temple at Uppsala was demolished and a [Christia n] church built on [its] foundations.”24 Uppsala became the Episcopal seat in the 1130s,25 th ree hu ndred year s after Ansgar’s first mission to Sweden.26 At that time, many churches had been built in stra tegic and well-populated centers of Sweden,27 and Sweden obtained its own archbishop in Uppsala .28 By the 1100s, Sw eden had becom e a Ch ristia n nation .29
B. The Ch urch Obta in s Political Pow er in S weden The Catholic Church brought to Sweden a well-developed system of laws (the Canon Laws) which governed the new
Franks from 814 un til h is dea th in 840 . S ee (visited March 16, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 709 supra-national religious organ ization.30 The church began to amass and use spiritual, legal and political power against the Swedish secular state.31 During the twelfth century, the archbishop became a m ember of th e King’s Counsel,32 and the Pope ass er ted direct in flu en ce in Sweden . In fact, the Pope claimed “the king of Sweden . . . a ckn owledged [the Pope] as his superior, and that his kingdom was a tribut ary to Rome.”33 Consequently, the King had to swear love to God and th e Holy Church an d was anoint ed by the Archbish op in the U ppsala church.34 The legitima cy of the Church diminished as a result of the Great Western Schism.35 More importantly, the Church underm ined its own authority and power through its “involvement . . . in political m atter s [a nd] existin g economic conditions.”36 When the Swedish King Sten Sture attempted to limit the power of the Church,37 the Archbishop of Uppsala conspired with the Danes against th e Swedish King,38 and many Swedish lea ders w er e execu ted. Th ese execu tion s, now known as “The Blood Bat h of Stockholm,”39 profoundly impacted the development of the Reformation.40 Although the Church st ill held much sp ir it ual a nd p olit ica l power, it s m oral authority had been compromised.41
C. The Reformation After the executions in Stockholm, a young nobleman, Gustav Vasa, successfully led an uprising against the Danes.42
30. See id. at 54. 31. See WADDAMS, supra note 16, at 4-5. 32. See id. 33. See id. at 6. 34. See LINDQVIST, supra note 14, at 252, 255. The first of these ceremonies that is kn own occur red 1210, when Erik Kn ut sson was an ointed Kin g. See id. at 255; see also SOU 1997:41, supra note 22, at 56. 35. This wa s t he pe ri od “du ri ng wh ich th e r iva l pop e in Avign on was recognized by some of the Swedish d ioceses, while the ma jority h eld t o the pope in Rome.” MURR AY, supra note 20, at 19. 36. Id. 37. See id. at 21. 38. See WADDAMS, supra note 16, at 8-9. 39. Id. at 9. 40. See id. 41. See MURR AY, supra note 20, at 22. 42. See id. at 23. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
710 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
The Danes were driven out of Sweden,43 and only a few years later Archdeacon Laurentius Andreae, who later became the King’s chancellor, proclaimed Gu stav Vasa th e new King of Sweden.44 The King, on Laurentius’ recommendations, made Olau s Petri a secretary of the City Council and a preacher at the Great Church.45 Olaus Petri, who had studied at Luther’s university in Germany, brought Lutheranism to Sweden.46 The new Kin g fou nd t he Catholic Church’s supr a-nation al orga niza tion to be a threat to a united Swedish nation-state.47 King Gustav Vasa consequently came to prefer the reformers’ view of the rela tion ship between the state a nd ch urch, wh ich originated with Lut her ’s teachings th at both th e secular an d spiritual systems were instituted by and served the in ter ests of God. In effect, the secular government was to provide peace and a str uctur e un der which th e church could operat e. The King therefore naturally became the Church’s First Member and Protect or 48 an d “took over t he affair s of the Chur ch,” 49 thereby becoming its head, in place of the Pope,50 and “encouraged the spreading of th e teachings of Olau s.”51 Sweden declared itself to be an eva ngelica l-Lu ther an kin gdom for the first time in 1544, and proclaimed that anyon e who opp osed t he n ew tea chin gs or promoted other religions would be severely punished.52
III. FREEDOM OF RELIGION AND THE DISESTABLISHMENT OF THE CHURCH OF SWEDEN The first glim ps es of freedom of religion in Sweden came during the first half of the Seventeenth Century. Mostly for economic rea sons, the stat e gra nt ed in 1724 lim it ed freedom of religion to immigrants who were skilled in tra des, and in 1781 all immigran ts who belonged to some Christian denomina tion were given the right to set up congregations.53 The Swedes were
43. See id. 44. See id. 45. See id. 46. See WADDAMS, supra note 16, at 12. 47. See SOU 1997:41, supra note 22, at 58. 48. See id. at 58-60. 49. MURR AY, supra note 20, at 25. 50. See SOU 1997:41, supra note 22, at 58. 51. WADDAMS, supra note 16, at 12. 52. See SOU 1997:41, supra note 22, at 59, 61. 53. See id. at 62. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 711 not granted the same freedom, however, until the state enacted a new statute regarding the freedom of consciousness in 1809.54 The famous section 16 dictated that “Th e Kin g . . . ough t not to force or cause another to force any person’s consciousness, but ra th er ought to protect ea ch per son’s right to freely exer cise his or her religion, so lon g as th e per son does not dist ur b th e public order.”55 Desp it e sect ion 16, th e King and other important state officers had t o swea r allegia nce t o the evangelical-Luther an faith. Mor eover, the King wa s s till t he h ea d of both the Church and the state, and made no formal distinction between the religious and secular spheres when making laws.56 In th e mid-eighteenth cent ur y, th e fight for freedom of religion , wa ged main ly by t he m ovem en t of Free-Churches (called “Frikyrkorörelsen”), as well as the ensu in g prohibition of alcoh ol movement ,57 became an essent ial element in th e later fight for democracy in Sweden. Other folk movements 58 and polit ica l associations developed in the wake of t he fr eedom gained by these groups.59 Durin g th is time, ma ny began questioning the idea that Church inter ests should be decided by the secula r st ate, w hich led to an unsuccessful proposal for a Church of Sweden Act in 1846. In 1863, however, the Church obtained some independence from the state, and influence over laws affectin g it, through an organization that operated on a national level and was led by the archbis hop. Th is orga niza tion became known as “Kyrkomötet”60 and consisted of thirty priests, including all bishops, and thirty laypersons.61 Kyrkomötet met a t least once every five year s, at t he King’s
54. See id. at 63. 55. Id. (“Konungen bör —ingens sam vete t vinga eller tvinga låta, uta n skydda var och en vid fri ut övning av sin religion, så vitt han dä rigenom icke störer samhällets lu gn ell er al lm än förar gel se ås ta dk om me r. ”) (tr an s. b y t hi s a ut hor). 56. See id. at 63-64. 57. “Nykterhetsrörelsen.” (trans. by author). 58. “Folkrör elser .” (trans. by author). 59. See Birgit Fr iggebo (fp), Prot okoll 1995/96:34, a nf. 2 [P rotocol 1995/96:34, address 2] (trans. by auth or). Ms. Friggebo is a member of the Liberal Party in the Swedish Parliament. 60. “Kyrkomötet” may be tr anslat ed as th e “General Synod.” The Gene ra l Syn od today “consists of 251 members and meets an nually. [Its] decisions are execut ed by the Centr al Board of the Chur ch (Svenska kyrka ns centr alstyre lse ).” Rober t S chöt t, State an d C hu rch in S wed en, in STATE AND CHURCH IN THE EUROPEAN UNION 295, 299 (Gerhard Robb er s e d., 199 6). 61. See SOU 1997:41, supra note 22, at 67. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
712 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
request.62 Th e Swedish Con st it ution 63 was modified in 1866 to ensure it con-for med to the n ew role of Kyrkomötet as part of the law making body concerned with the Church’s affairs.
A. Early In dications of a N eed to S epa rate the Ch urch an d th e State and the Freedom of Religion Act of 1951 In the early twentieth century, the debate concerning religiou s freedom in ten sified , a nd t he parlia men t and Church received many motions and proposals,64 some of which led to changes in the laws.65 One of the more important enactments occurred in 1951, when Sweden obtained its Freedom of Religion Act, preceded by a rgu men ts for equalit y and the right to religiou s fr eedom .
1. Bishop B illing’s view of people’s righ t to leave t he Ch urch of Sweden Bishop Billing, a member of Kyrkomötet, spent much of his time performing research at the U niversity of Upp sa la before becoming bishop of the Väst erå s diocese in 1920. Billing substan tia lly influenced the debate on the relat ionship between
62. See id. 63. Sweden has a writt en Constitu tion, consisting of several Fundamen tal Laws, wh ich is also complemen ted by un writ ten ru les. S ee J AN KIESER & KJELL RYDÉN, SAMHÄLLSBOKEN: SAMHÄLLSKUNSKAP FÖR GYMNASIESKOLANS TRE- OCH FYRÅRIGA LINJER [TEXT OF SOCIAL SCIENCES: SOCIAL SCIENCES FOR THE THIRD AND FOURTH YEAR LINES AT THE GYMNASIUM SCHOOLS] 347-50 (3d ed. 1989). The S wedish Const itu tion is somewhat easie r t o chan ge th an th e U.S. Con stit ut ion . A change to the Swedish Con st itu tion will chan ge th e actu al Cons titut ion ra th er t ha n m odifying it through the enactmen t of am en dm en ts . “Swed en [tod ay] h as four fun da me nt al l aw s: t he Instrument of Governm ent , th e Act of Succession, the Freedom of the Press Act and, sin ce 1992, the Fu nd am en ta l La w on Fr eed om of E xpr ession . Th e Ri ks da g Act occupies a posit ion somewhe re between fund am ent al la w an d ordin ar y sta tu te la w.” Birgitta Dah l, Forew ord (visited Mar. 14, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 713 the Church and the state. Billing’s research focused on moral th eology,66 and although his theology has been subjected to va riou s interpretations,67 his ar gum ent s per ta ining to the relationship between the Church and the state are both illuminating and remarkable, particularly considering that these arguments were presented in the early Nineteenth Century. The ar gum ent s in two area s affectin g the Church are particularly relevant to the contemporary debate regar ding th e disestablishm ent of the Church of Sweden an d, therefore, deserve some notice. Bishop Billing and two other bis hops , on the dir ect ion of Biskopsmötet,68 authored a proposal that became the foundation for a motion, signed by most other bishops, discussed at Kyrkomötet of 1929.69 This motion proposed that people should be given th e right to ren ounce their m embership in the Church of Sweden, and requested that questions and possible consequ en ces result in g fr om such a law be investigated and solutions suggested.70 In this motion, Billing reconciled two apparen tly contradictory fundamental principles associated with membership in th e Chur ch of Sweden. In essence, he showed that the people’s right to leave the church was consistent wit h and in fact wou ld pr omote the Church’s interests. The first principle wa s tha t of automat ic membership in the Church of Sweden. A child born to at least one parent who was a mem ber in the Church automatically became a mem ber of th e Church as well, un less t he par ent took affirma tive action against such membership.71 This au tomat ic membership
66. See GÖSTA WREDE, KYRKOSYNEN I EINAR BILLINGS TE OLOGI [THE VIEW OF THE CHURCH IN EINAR BILLING’S THEOLO GY] 11 (Axel Abraha msons Bokt ryckeri AB, Karlskrona 1966) (tr an s. by t his a ut hor ). 67. See id. at 12. 68. See id. at 175. “Biskopsmötet” may be translated as the “Bishops’ Conference” and “is an un official body where the bishop s con fer on iss ue s of m ut ua l concern .” Schöt t, supra note 60, at 302. 69. See WREDE, supra note 66, at 175. 70. See SOU 1997:41, supra note 22, at 71. 71. See id. at 73. Note, however, t ha t sin ce Ja nu ar y 1, 1996, a child will only becom e a member through bapt ism or as a resu lt of the parents’ act ive p ur su it of such mem bers hip by n otification t o the proper Chu rch a dmin istrators t ha t t he child will be a member of the Church while waiting for baptism. (“Från och med den 1 januari 1996 blir ett barn kyrkotillhörigt först i och med dopet, eller genom ett meddelande från föräldrar na om at t det ska tillhöra Svenska kyrka n ‘i väntan på D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
714 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 resulted from the idea that fellowship in the Church was based on the gr ace of God wit hout any effor t on the part of the member.72 Bishop Billing understood this to be a consequ en ce of the notion that the Church of Sweden was a “Folkkyrka;”73 every citizen was ent itled to belong to the Folkkyr ka , regar dless of the person’s standing in society or otherwise.74 However, th is pr inciple of automat ic membership for a child, according to Bishop Billing, had to be weighed against a second principle which posits that membership in the Church of Sweden should be voluntary.75 For Billing, membership in the Church would be insignifica nt, even if gr anted by t he gr ace of God, unless it r esu lted from a deliber at e choice by a m at ur e adult. The membership must be expressed in the adult member’s relat ionship with the Church through that person’s affirmation or annulment of the membership.76 The membership depended for it s exis ten ce on the gr ace of God, while the person’s free will ha d to account for its continu ing vitality an d legit ima cy.77 “The Church’s religious task require[d] . . . th e employmen t of a logically consistent principle of freedom.”78 Billing pr omoted a person ’s righ t to freely lea ve t he Church for at least two reasons. First, forced membership impeded an individua l’s freedom of religion, t her eby violating logically consistent pr in ciples of freedom .79 Second, forced membership prevented people from viewing the Church of Sweden as a religiously motivated organization.80 Due to this forced membership, the Church could ea sily be m istaken for a
dopet .’”). See En svensk nationalkyrka [A Swedish Sta te-Chur ch], (visited Mar. 14, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 715 government institution, and membership could be regarded as “nothing more than” citizenship.81 Consequently, neither the Church nor membership in the Church embodied any religiou s meaning, power or influence.82 Th e r eligiou s ch aracter of th e Church of Sweden, argued Billing, would be apparent to the Swedish Folk,83 thereby creating a true Folkk yrka, only if membership in the Church and citizenship of the state was more than different sides of the same coin.84 Kyrkomötet of 1929 passed the motion due at least in part to these arguments, as evidenced by its statement that giving people a right to leave the Church would benefit the Chu rch, as forced mem bership “diminishes th e Chu rch’s religious cha ra cter an d wea ken s its possibilities to make it s ch aracter istics and identit y m ore kn own a nd legitima te.”85
2. Bishop Billing’s view of church and state Luther’s teachings regarding th e relat ionship between church and state influenced Billing insofar as it required that the two in st it ution s s hould be in dependent of one another.86 The church represen ted God’s kin gdom, a nd its s ph er e of operation mu st be the t eaching of the gospel,87 whereas the state represented the worldly kingdom, and should be concerned with the enactment and enforcement of laws to provide an orderly s ociet y in wh ich the Church could perform its duty of preaching the gospel.88 The two institu tions resem ble two complement ar y brigades in God’s arm y performin g separate functions.89 Billing therefore argued that the state must not exe rt power over the Church or consider it a subordinate institution.90 On t he other ha nd, Billing sa id that
81. See id. 82. See id. 83. “Folk” ma y be tr an slat ed a s “People.” 84. See WREDE, supra note 66, at 179. 85. SOU 1997:41, supra note 22, at 71-72 (“[Den fria utträ desr ät ten ] . . . skulle enligt kyrk omöt et ‘avlä gsn a e tt mom en t, som i ick e ringa m ån bidra ger a tt fördun kla kyrkans religiösa karaktär och försvagar dess möjligh et er at t g öra den na kä nd och erk än d.”) (citation omitted) (trans. by this author). 86. See WREDE, supra note 66, at 240. 87. See id. at 237. 88. See id. 89. See id. at 240. 90. See id. at 241. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
716 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 when discussing the church-state relationship, one must take into consideration the Church’s social responsibility. 91 The Church an d st at e, said Billing, share some responsibilities that may be the gr ound for som e t ype of r ela tion ship.92 Billing seemed to su ggest that a rela tion sh ip between the Church and the state must not be subservient or vertical, or such that the Church and t he state a re linked, be cause the Church could not perform its religious duties to society as a quasi-state institution. To the contrary, these responsibilities require a horizontal relationship in that the Church must be separate and independent from the state to obtain legitima cy and acceptance among th e people which it serves before it is able to discharge its religious obligations. The opposing view, that church and state should not be separate institut ions, was espoused by Arthu r Engberg93 at Kyrkomötet of 1932, who argu ed against a proposa l by th e King to decent ra lize th e ma na gement of the Ch ur ch’s financial affairs.94 Arthur Engbe rg vie wed t he Church of Sweden as a state institution, and just as he believed the state had an obliga tion to support culture, the state had an obliga tion to support the Church.95 Engberg also argued that a centra lized governing body should be crea ted for the Church,96 and he sought thereby to bind the Church and the state closer and provide the state wit h more in flu en ce over the Church’s internal affairs.97 In his response t o Engber g, Bishop Billin g argued that pr ecis ely because the Church and State have areas of sh ared respon sibilit ies , t he in dependence of the Church must
91. See id. at 233. 92. See id. at 234 (stating tha t “[t]he responsibilities that the Chur ch and the state ma y sh ar e sh ould be t he object of invest iga tion s”); see also infra notes 343-45 and accompanying text. 93. Engberg was Church Minister a nd ma de a 180 degree turn-around from being a proponent of freedom of religion to becoming a state-church system champion. See Birgit Fr iggebo (fp), Protokoll 1995/96:34, anf. 2. 94. See WREDE, supra note 66, at 238-39. 95. See id. at 239 n.23 (“[B]land ann at som jag lär t mig, är det ta, at t en kulturdemokrati icke ka n st älla sig likgilt ig till de t r eligiösa live ts u tges ta ltn ing.” [“Among oth er th in gs I ha ve le ar ne d is th is, th at a cu ltu ra l democracy mu st not be leth ar gic wit h r esp ect to t he dev elopme nt of th e r eligi ous life.”]) (tran s. by th is author). 96. See id. 97. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 717
be emphasized.98 For the Church to per form it s d uties , wh ich derive from religion , t he Church’s prin cipal existen ce a nd m ode of operat ion must be religious, not cultu ra l or political.99
3. The evolution of the Freedom of Religion Act of 1951 While the debate continued within the Church, the state explored pos sible solutions to the state-church predicament. The state created the Committ ee on the Dissent er Laws 100 in 1943 to investigat e proble ms s urrounding r eligiou s fr eedom .101 The Committ ee recommended t he enactmen t of a Freedom of Religion Act, which would affirm the principles of religiou s freedom and freedom of association for religious purposes as well as est ablish nonmembers’ right to pay no more th an ha lf of the Church taxes ordinarily assessed against members.102 The Committee also considered the legal status of r eligiou s associations other than the Church of Sweden and suggested a dist inction between organizat ions inside th e framework of th e Church, called Trossammanslutningar,103 an d religious associations not affiliated with th e Chu rch, labeled Trossamfund.104 The various religious associations were to be given as m uch freedom as p oss ible, b ut because of society’s important interests in these organizations, th ey had to meet
98. See id. at 239. 99. See id. at 240. 100. “Dissenterlagskommitteen.” The laws governing the r enun ciation of one’s mem bers hip in the Church are called the Dissenter laws. 101. See SOU 1997:41, supra note 22, at 72. 102. See id. Nonm em ber s cu rr en tl y pa y a Dis sent er Ta x t o fin an ce t he Ch ur ch’s obliga tion to provide burial grounds for nonmembers as well as members. 103. “Trossammanslutningar” ma y be t ra ns lat ed a s “Or gan iza tion s ba sed on faith.” Th e Dict ion ar y of the Academy of Sweden sta tes t ha t a “samm an slut nin g” is an organ ization creat ed by people for a par ticula r pu rpose. “[O]rgan isat ion b ildad av personer l.pe rs ongr up per o. d. s om s lut it s ig sa mm an i vis st syft e, för bund, förening o.d.” Sammanslutning, (visi te d Ma r. 1 4, 19 99)
718 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 stringent requirement s before becoming indepen den t legal entities.105 Finally, the Committee recommended that the King should deter min e which religiou s a ss ocia tion s cou ld obtain the status of Trossamfund. Many forces combined with the Committee recommendations to compel t he enactmen t of the F reedom of Religion Act. Most arguments raised in support of the passa ge of the Freedom of Religion Act were based on two principles: freedom of religion and the equal tr eatment of all denominations and their members.106 Although scheduled to be replaced on January 1, 2000,107 the Act is st ill in effect and provides for ea ch person’s right to freely exer cise th e religion of one’s choice, to pa rticip ate in religiou s a ctivities wit h others and to hold public sermons.108 Under the Act, a person’s religiou s freedom can only be limited if the exercise of t he religion disrupts or interferes with public order. Th is por tion of the Act protects what is called t he “pos it ive freedom of
105. See SOU 1997:41, supra note 22, at 72. 106. See id. 107. See Svensk författ ningssa mling [The Code of Swedish Stat utes ] 1951:680 [hereinafter SFS ] (SFS is t he official ab breviat ion for “Svens k förfat tn ingss am ling,” wh ich may be translated as “The Code of Swedish Statut es” or “Swed ish Colle ction of Code.” The abbreviation “SFS” will be used for the remainder of this Comm ent .). 108. The Act provides: Om religionsfrihet 1 § Envar äger rätt att fritt utöva sin religion, såvitt han icke därigenom stör samhällets lugn eller åsta dkommer allmän förargelse. 2 § Det st år en var frit t a tt för r eligiös gemenskap deltaga i sammank omst och samm anslut a sig med an dra. 3 § För offentlig gud st jänst gälla ej andra hinder än såda na som i a llmä nh et ä ro st adga de för sa mm an koms t, till vilken allmänheten ha r t illtr äd e. 4 § E j må nå gon v ar a s kyl dig t illh öra trossamfund. Åtagande i strid mot denna bestämmelse vare utan verkan. Med tr ossa mfu nd förs tå s, för ut om s ven sk a k yrka n, s am ma ns lut nin g för re ligiös verksamhet, vari ingår att anordna gudstjänst. [Regarding freedom of religion: § 1. Each person is entitled to freely exercise his or her r eligion, so long as he or she d oes not t her eby dist ur b th e public order. § 2. Each person is fr ee t o pa rt icipa te in a ctiv iti es a nd me et ing s for religious pu rp ose s or to j oin oth er s [t o form a n or gan iza tion ] for r eligi ous purposes. § 3. No other limits may be imposed on public sermons than those limits imposed on non religious pu blic gatherin gs. § 4. No person shall be obligated to join or pa rt icipate in any r eligious associat ion or den omina tion . Any agr eeme nt in conflict with th is sta tu te will be null and void. A r eligi ous as socia tion or denominat ion is defined for purposes of this stat ute, other than th e Ch ur ch o f Sweden , as an a ssociation or group of people gathered for religiou s pu rposes, in cludin g ser mon s.] SFS 195 1:68 0, §§ 1 -4 (t ra ns . by th is a ut hor). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 719 religion.”109 There is yet another protection under the Act, necessitated by history,110 la beled the “nega tive freedom of religion.”111 The negative freedom emphasizes a person’s right not to be a member of any religious association. Under this part of the Act, a person who desired to leave the Church became free to renounce his or her mem bersh ip by giving n otice t o the proper Church administrator;112 the Church of Sweden t hereby became at lea st pa rtia lly in dependent from the state for the first tim e sin ce t he Refor mation . Bish op Billin g’s desir e for voluntary mem bership had been part ially fulfilled, and membership in the Church could no longer be directly analogized with citizenship of the state.113
B. Modern Movem ents for Disesta blishm ent The Church of Sweden ha s tra ditionally been very important in th e development of th e Swedish society.114 Although not many Swedes a ctively a tten d ch urch, most are members of the Church of Sweden.115 Swedish society is today much more valu e-plur alistic, however , than it wa s in th e beginn ing of the twentieth century. Sweden has become a mult ir eligiou s and multicultural society during the last few decades as a result of inter nation al in tegr ation .116 Thr ough t his internationalization, the relat ionships between the religiou s denomination s in Sweden have changed, and it has put pressure on the Church of Sweden t o more clearly mar ket its
109. “Positiva religion sfrih ete n.” 110. The forced mem bers hip in th e Chu rch of Swede n, in p ar ticula r. 111. “Negativa religion sfrih ete n.” 112. See SOU 1997:41, supra note 22, at 73. 113. See id. 114. See RegSk r 199 5:1, supra note 5, at 6. 115. Germany ha d a bou t fou rt een mi llion members of the Lu ther an faith in 1996. Sweden had the second highest membership in Eu rope, t otalin g 7,630,000. Th e th ird and fourth h ighest m ember ship existed in Finlan d and Denmark , totaling 4,577,106 and 4,539,773 respectively. The United Sta tes ’ membership tota led 8,420 ,543. See LUTH ERAN WORLD INFORMATION 13-17 (No. 1/96). The number of Swedish Luther an members is quite remar kable, especially considering that Sweden had a total popu lat ion of 8,778,000 in 1994. See THE WORLD ALMANAC AND BOOK OF FACTS 1995, at 823 (199 4). 116. See Komm ittédire ktiv: Ändra de re lationer mella n st at en och Sve nsk a kyr kan m.m. [Directive for the Committee: Chan ged Relations between th e stat e and the Church of Sweden , etc.] Dir . 1995:162, in SVENSKA KYRKAN I FÖRNYAD GESTALT [THE REFORMED CHURCH OF SWEDEN] 217, 218 (Verbum 1996) [hereinafter Dir. 1995:162] (trans. by t hi s a ut hor). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
720 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 beliefs an d services.117 The Roma n Ca th olic Church, th e Orthodox churches, non-Christian denominations and free- churches have all increased in nu mber, wit h t he m ost n otable changes occurring in large cities where imm igrants account for a su bstantia l part of the popu la tion .118 The pluralism and ur ban izat ion of religion has highlighted the problems of religiou s freedom in Sweden.119 Before the parliament passed the Freedom of Religion Act of 1951,120 a person could not revok e his or her membership in the Church of Sweden without joining another Christian denomination tha t had been appr oved by th e King.121 Although with drawa l from membership in the Church of Sweden does not directly relate to the disestablishment of the Church, it does illustrate that rapid social changes made a revision of the relations between the stat e and Chu rch of Sweden necessary.122 Although an improvement, the Freedom of Religion Act did not effectua te religious freedom an d equ alit y am ong all denominations. In particular, th e Act of 1951 did not completely elimin at e the unique status afforded th e Chu rch th rough its historical relationship with the state; nor did it reform the requirements for becoming a mem ber of the Ch ur ch. A child bor n to at least one member-parent would still automatically become a member of the Church, unless the parent took affirmative action against membership for the newborn child.123
117. See RegSk r 199 5:1, supra note 5, at 9. 118. See Dir. 19 95:162, supra note 116. 119. See RegSk r 199 5:1, supra not e 5, a t 6 ; En his tor isk re form : Regeringens skrivelse till kyr komöt et: St at en och t rossa mfun den—gr un dlägga nde fr ågor [A Hist oric Refor m: The Government’s Draft P rop osa l to K yrkom öte t: T he St at e a nd th e Re ligiou s Denominations —Foundational Question s], RegSk r 199 7:2, also available at (visited Mar. 14, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 721
Alm ost three decades w ould pa ss before t he la tter obstacle t o a more indepen dent Ch ur ch of Sweden would be eliminated.124 Additionally, alth ough the Act protected freedom of religion, it was st ill ver y difficu lt for a person to organize a n ew denominat ion or creed. For exam ple, cert ain forma listic organizational requiremen ts wer e not suitable to many nontraditional religions, such as Japanese Buddhism.125 The flaws of the Act of 1951 necessitated further changes and improvements.
1. Comm ittee investigations of the 1950s, 1960s, and 1970s The Freedom of Religion Act of 1951 ensured that the Church’s status became that of a religious organization, rather than a state institution.126 However, as stated above, more had to be done to achieve religious freedom and equalit y. Consequently, in 1956, th e pa rlia ment request ed t he King to devise an impartial Investigatory Committee127 to examine the church-state issue.128 The Committee commen ced its investigations in 1958, with a directive to propose how the future relationship between th e Chur ch and th e st at e, if any,
retirement, is a former Commissioner of the Executive Boar d of th e Cit y of Sollentuna. He has been emp loye d by t he Ch ur ch o f Sw ed en as Vice P re sid en t of t he Church’s prin ting company an d P re sid en t of t he Ch ur ch F un d. H e is me mb er of Kyrkomötet (The General Chu rch Synod), which he joined in 1975, and has been th e Chairman of th e Lib er al P ar ty’s Com mi tt ee of Ky rk omöt et . He wa s for six years a member of Kyr kom öte t’s E xecu ti ve C om mi tt ee (Kyr ka ns cen tr al st yr els e), and has been an obse rver of que st ions of re ligiou s fr eed om and other human rights for The Con fer en ce of European Churches. 124. See SOU 1997:41, supra note 22, at 73. 125. See Eva Goës & Ewa La rs son , Mot ion t ill r iks da gen [Moti on t o th e Par liament] Mot . 199 6/97:K 802 (T his comm en t w ill oft en cite Mot ions to t he Parliament. These citations will be put in the form ord ina rily used for citing U.S. legislat ive ma te rials an d t he sh ort form s for th e sa me . “Mot.” r efer s t o “Motion s t o the Parliament.” The year code 1995/96 in dica te s t he legis lat ive s ess ion for th e Swedish par liam ent , dur ing wh ich the motion was submitted. The letter “K” stands for Konstitutionsutskottet, which is the Committee on Constitutional Questions. Last ly, the n umber following the letter designating the Committee refers to the various mot ions su bm itt ed t o th e Com mi tt ee.); see also SOU 1997:41, supra note 22, at 122. 126. See SOU 1997:41, supra note 22, at 75. 127. When the Swedish government wishes to enact substantial changes in the laws, it often creat es an organ ization th at will be in cha rge of invest igat ing advant ages an d disa dvan ta ges of variou s possibilit ies. This organization is ge ner ally called “Utredningen,” which is literally translated as “The Inve stiga tion.” 128. See SOU 1997:41, supra note 22, at 75. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
722 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 should be formed. After ten years an d ten volumes of interim findings, the Commit tee pu blish ed it s p ropos al, which consisted of four hypothetical scenarios, ranging from genera lly no modifications to a complete severance of the ties between the Church and the state.129 While the proposal was sent to experts and possibly affected persons and organizations for comments,130 the government established th e Pr epa ra tory Committee.131 The Committee, directed by chairperson Alva Myrdal, who was also the Minister of Church Affairs, was instr ucted to make prelimin ary decis ion s about the ch urch-state relat ionship based on the 1958 investigations.132 Th is commit tee su bm it ted it s p ropos al t o the government in 1972,133 which focused on two main themes: first, that Swedish society had become m uch more plura listic,134 and second , that religiou s fr eedom requir ed that all r eligiou s associations be tr eat ed equ ally, pr ohibiting pr eferen tia l treatment of any denomination, including the Church of Sweden.135 The proposal suggested that the local parishes of the Church should no longer have th e right to tax people,136 that the Church should be allowed to regulate its internal a ffairs and questions of religious doctrin e, an d tha t t he government should su bsidize denomin ation s that served more than three
129. See Statens offentliga utredningar [The Government’s Public Investigations] SOU 1968:11 (tr an s. by t his a ut hor ). 130. In Sw ed en , t he gove rn me nt often sends out published proposals to those affected an d to exp ert s for comm ent s. Th is pr ocedur e is calle d “Remiss behan dling.” 131. After an In vestigatory Committ ee completes its investigation an d proposes various solu ti ons, t he pr opos al wil l oft en be processed by a Prepar atory Committ ee, in th is ca se ca lled “Kyrk oberedningen,” and this Committee will take a preliminary stand on the various proposed solutions. 132. See SOU 1997:41, supra note 22, at 76. 133. See Statens offentliga utredningar [The Government’s Public Investigations] SOU 1972:36. 134. The Swedish Ch urch s tat es on its h omepages t hat ther e are 150,000 members of th e Rom an -Ca th olic ch ur ch, 300,0 00 m em be r s of “f r ee ch u r ch es ” a n d 60,000 mu slims. S ee En svensk nationalkyrka [A Swedish State-Chu rch], (visited Mar. 14, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 723 thousand members.137 Because this pr opos al m et st rong opp osition from bot h pot en tia lly affect ed orga niza tion s a nd exp er ts, and lacked br oad p olit ica l su pp ort, proba bly because of an im pending elect ion ,138 the government declared in 1973 that it did not inten d t o recom men d a ny substantia l ch anges to the existing church-state relationship.139 After the gover nmen t declin ed to act on the important work performed by th e Invest igat ory and Preparatory Committees, the Ch urch of Sweden decided to pursue its own exp lor ation of possible refor ms, based on the program for reform as formulated by Kyrk omötet of 1968. Although in ten t on keeping its connections with the state,140 the Church’s goal in supporting reform was to strongly emphasize the individual citizen’s religious freedom, while at the same time establish the Church’s independence as a religiou s association. This goal was to be achieved through the cr ea tion of executive and legislative, or norm-set tin g, organ izat ions on a na tional level.141 The state recognized the importance of this work and requested the Church investigators to work in conjunction with a committ ee formed by the state to outline concrete solutions to the problems that previously precluded br oad p olit ica l a nd Church- based support.142 The combined efforts of the Church and the state in ves tiga tors yielded results in the form of yet another proposition, consist in g of five main su ggest ion s. 143 First, the responsibility for providing burial grounds, both to mem bers and nonmembers, was to be transferred from the Church to the loca l secular mu nicipa lities. Second, the suggest ion wa s again made that local parishes should no longer be considered separate municip alit ies , t her eby for feit in g t heir power to tax the people living with in their boundar ies; th e stat e would, in return, promise t o assist in collecting whatever Church fees
137. See SOU 1997:41, supra note 22, at 76. 138. See Gibson , supra note 123. 139. See SOU 1997:41, supra note 22, at 76. 140. See id. at 77. 141. See id. 142. See id. 143. See Sta ten s offentliga u tr ednin gar [The Government’s Public Investigations] SOU 1978:1. This p roposition was called St at -kyrk a—Ändr ade r elat ioner mella n staten och Svenska kyrk an [Stat e-Church—Changed r elations between t he sta te and the Ch ur ch o f Sw ed en ] (tr an s. b y t hi s a ut hor). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
724 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 would be payable by members of the Church. Third, the power to regu la te loca l ch urch activities as internal Church business should be transferred to the Church. Fourth, on the national level, a new organization would be created, includin g a reformed legislative body, still called Kyrkomötet, whose decision s would be executed by a new organization called the Central Board of the Church.144 Lastly, a law would be enacted with the purpose of protecting certain organizat ional str uctures of th e Chur ch considered t o be vita l for society as a whole.145 Although it received much negative feedback from the local parishes, the government submitted the proposal to Kyrkomötet of 1979 for consideration . It was rejected,146 mainly out of the Church’s concern that losing its right of taxa tion would prevent it from being able to maintain its services.147
2. Reforms during the 1980s As it did not appea r t o be possible to attain a broad majority in support of separating the Church and the state, the parlia ment du rin g t he 1980s attem pt ed only p iece mea l r efor m with no mention of disestablishment. One important reform came about on January 1, 1983,148 which resulted in several changes, one of which pertained to the procedure for passing laws regar ding the Church’s internal a ffair s a nd or ga niza tion . The Swedish pa rlia men t is ult im ately respon sible for regulating all of the Church’s internal affairs and organization. On th e oth er ha nd, th e pa rlia ment ha s the au th ority to delega te legisla tive power, and had previously entrusted some law- making competence in the Church, in juxtaposition with the parliament’s, over its organization and internal affairs in specific religiou s areas.149 This delegation, in effect, granted
144. “Svenska kyrk an s cent ra lst yr els e.” Th is e xecu tive organization may appear to satisfy Art hu r E ngbe rg’s call for a cen tr al organ izat ion. See supra notes 94-97 and accompanying te xt. How eve r, i n con tra st t o Engbe rg’s proposed orga nizat ion, th is Centralstyrelse would be independent from t he sta te. 145. Four para graph s were pr oposed t ha t w ould pr ote ct t he gen er al ch ar act er of the Chur ch and it s democrat ic foundations. This law also p rov ide d t ha t t he Ch ur ch’s holdings would be t ra nsfer red t o the Chu rch t hr ough foundations directed by the Church. S ee SOU 1997:41, supra note 22, a t 77. 146. See id. at 78. 147. See infra notes 284-85 an d accompa nyin g text . 148. See SOU 1997:41, supra note 22, at 78. 149. This is referred t o as “Normgivningskompetens,” which literally translated D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 725
Kyrkomötet special st at us as th e parlia men t’s colegislatur e in these areas, although under the supervision of the parliament, and pr ovid ed som e con st it ution al power to coissue regulations with the parlia men t that affect ed the Church. The reform revoked Kyrkomötet’s legislative power, as well as its stat us as a kind of colegislatur e, in an effort to create greater equalit y am ong all r eligious denominat ions. The parliament thereby became the sole law-making body in th e religiou s arena. At the sa me time, the parliament ensured that the Ch urch wou ld contin ue t o have s ome in flu en ce, t hough not constitutionally mandated or delegat ed by the parliament, over the government’s regulation of its interna l affairs. This was made possible by modifying the Fundam ental Laws so that Kyrkomötet obtained the right to issue nonbinding comments on—not changes to—importan t pieces of legislation before their passage.150 At the same time, the parliament gra nted Kyrkomötet the right to govern some of the Church’s internal affairs, independent of the parliament, through decrees rather than constitutionally mandated laws.151 The reform thereby accomplished a preparatory separation of the Church and the state and, at the same time, promoted the Church’s demand and need for self-governance. After this reform, the Church no longer ha d a preferen tia l position to other denomina tions with r espect to lawmaking authority over its int erna l affair s. At t he same tim e, th e Church had obtained aut hority and power to regula te it s internal affairs, independent of, and not delega ted from, th e state. In order t o properly u se t his new-found aut hority, Kyrkomötet wa s r eor ga nized u nder the gu idin g prin ciples of providing it with a br oad-based support an d a more dem ocrat ic structure.152 The resultin g, an d st ill exist ing, organ ization consists of 251 freely elected members. Sweden’s thirteen bishops are required to attend Kyrkomötet’s conferences and
is “N or m -g iv in g c om pe t en ce .” 150. See SOU 1997:41, supra note 22, at 79. 151. See id. The sp ecifi c areas in wh ich Kyrkomötet could issue decrees included Church doctrine, missiona ry work, Church books, sermons, the sacrament and procedures for fu lfillin g it s fu nct ions an d t hos e fu nct ions re lat ed t o its subordinate organizations. See Ky rk om ötet (visited Mar. 14, 1999)
726 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 meetings, and are given the right to speak and su bmit motions at the same; however, th ey ar e prohibited from part icipating in the decision-making process by voting, unless they have been duly elected to one of the 251 seats of Kyrkomötet.153 The refor m also crea ted the Cen tral Boa rd of the Church,154 which is the preparatory155 and executive organizat ion of Kyrkomötet.156
3. Reforms of the 1990s Because of the piece mea l r efor ms a nd the uncertainty stemming from the church-state relationship, Kyrkomötet requested in 1988 that the government examine the Church’s economic and legal status.157 The government created an Invest igatory Comm itt ee called the ERK-inqu iry,158 which published its findings in 1992.159 The report disclosed the Church’s economic and legal rights in detail and described possible changes in the relation between the Church and the state in the form of three models, ranging from making the Church a completely ind epen den t denominat ion to keeping t he existing relationship with some minor changes.160 a. The Investigatory Comm ittee of 1994. The ERK-inquiry resulted in further and more substantia l explorations of t he church-state rela tion ship. An Investigatory Committee 161 was created in the spring of 1992, chaired by Car l Axel Petri.162 In 1994, this Committee published a recommendation 163 that would become the foundation for the Government’s proposal to the parliament in 1995 for disest ablish in g t he Church of Sweden in the year two thousand. The Comm ittee concluded
153. See id. 154. See supra not e 14 4 a nd accom panying text. In Swedish, the Central Board is called “Sven ska kyr ka ns cen tr alst yrels e.” 155. This function entails preparing and m akin g prelim ina ry decision s regar ding investigatory ma te rial for su bm iss ion t o Kyr kom öte t for fina l de cision . 156. See SOU 1997:41, supra note 22, at 79. 157. See id. at 82. 158. See id. 159. See Sta ten s offentliga u tr ednin gar [The Gover nm ent ’s Public Invest igations] SOU 1992:9. 160. See SOU 1997:41, supra note 22, at 82-83. 161. “Kyrkober edn ingen .” 162. Carl Axel Petri presided at the time over one of Sweden’s appellate courts, in Götaland, with t he title Hovrättspr esident. 163. See Stat ens offentliga utredninga r [The Governmen t’s Public Investigations] SOU 1994:42. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 727 that there were reasons for t he stat e to be genera lly positive about religion . H owever , the st ate m ust respect eve ry per son who does not wish to part icipate in r eligious activities. It must not, for any r ea son , fa vor one or more denomina tions over others; rather, the state must, as far as practically possible, remain neutral in its inter actions wit hin and r egu la tions of t he religiou s arena.164 The Committee of 1994 ther efor e recommended that the Church of Sweden be given a legal en tit y status independent of the state—both on a national and local level.165 The local parishes would cease to be municipalities, but would keep their status as legal entities.166 It was recommended th at th e Chu rch be gra nt ed const itu tionally mandated norm-giving or legislative authority over its local parishes by changing the Constitution and enacting a special Church of Sweden Act.167 The Act was to be constructed as a framework act th at would preser ve th e Chur ch’s ident ity, oblige the Church members to pa y a Ch ur ch fee rat her t ha n a ta x, thereby also complet ely relieving n onmem bers of t he burden of paying any Church taxes,168 and empower Kyrkomötet to decide questions related to internal Church business.169 Additionally, the Committee recommended that the stat e aid th e Chu rch in collecting th e Chur ch fees t hr ough its regular tax institutions, free of charge.170 The Chu rch of Sweden Act an d the changes to the Constit ut ion favoring t he Church over other denominations were justified on the basis of the special tasks rendered by the Church due to its historica l r ela tion sh ip wit h the state. S uch tasks included providing burial grounds for members and nonmembers, keeping and storing public records rega rding citizens and caring for cult urally and h istorica lly sign ifica nt landmarks.171 In conformit y with t he equalit y principle, however, t he Committ ee’s recommendation provided that denominations other than the Church sh ould be eligible t o pr ocure a ss istance
164. See SOU 1997:41, supra note 22, at 84. 165. See id. 166. See id. 167. See id. 168. See id. at 85. 169. See id. at 84. 170. See id. 171. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
728 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 from the state in collecting their fees through the state’s ordinary tax institutions, free of charge.172 More im port an tly, the recommendation suggested a ll denominations should be given an opportunity to obtain t he sam e constitu tionally protected legal entity status proposed for the Church of Sweden. The Committee therefore advocated that the government crea te a sp ecia l kind of legal organ izat ion, the “registered den ominat ion,”173 especially tailored for use by religiou s associations, including the Church of Sweden.174 It was suggested that the parlia men t en act a sp ecia l la w a bou t register ed denomination s, 175 an d religious freedom in gener al, to effectuate the n ew legal for m of ass ocia tion , in add it ion to the proposed special law about the Church of Sweden.176 The Committee also present ed a modification to the Constitution that wou ld gr ant all d en omin ation s t he same con st it ution al pr otect ion give n the Church.177 b. The Ch urch of S weden Act of 1993 replaces the Ch urch of Sweden Act of 1686. While the 1994 In vestigatory Committee worked on its recommendations to the government, the parliament passed the current Church of Sweden Act,178 replacing the old Church of Sweden Act of 1686 and variou s other statutes.179 The new act became effective on January 1, 1993180 and will be repea led wh en the disestablish men t occurs on January 1, 2000.181 The parliament did not enact the 1993 Act based on the 1994 Com mittee’s investigations, which were completed later , bu t the in ves tiga tion s d o deserve s ome recogn it ion , as t hey a id, to som e exten t, the developm en t of th e sepa ra tion of the Church and the state. The Church of Sweden Act pertains only to the Chu rch of Sweden, an d its pu rpose is to emphasize th e iden tit y of the Church as a generally independent denomination, although its organization and
172. See id. at 84-85. 173. “Registrerat Tross am fund .” 174. See SOU 1997:41, supra note 22, at 85. 175. See supra notes 101 t hr ough 104 an d accompa nyin g text . 176. See SOU 1997:41, supra note 22, at 85. 177. See id. 178. See SFS 1992:300. 179. See SOU 1997:41, supra note 22, at 85. 180. See id. 181. See SFS 1992:300. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 729 operations are regulated by the state.182 This Act regulat es the Church in ar eas such as its confession, mem bership requirements, organization, property and wealth, music and elections to offices.183 The parliament modified the Church of Sweden Act in 1996 to harmonize the membership requirements of the Ch ur ch with the religiou s freedom pr in ciples pr ocla im ed in the Const it ution and law. These modifications were also based on a requ est by the Church; it was reprehensible to the Church to think of membership as being forced upon people.184 Th e 1996 r efor ms removed from the Act the automatic membership of a child born to at least one member-parent, which ensur ed tha t m embership in the Church would now be based on an affirmat ive and voluntary act on the part of the child, its paren ts, or an adult seeking membership in the Church, just as Bishop Billing en vis ion ed seven ty years a go. As noted earlier in this Comment, prior to the 1996 changes, a child bor n to at least one member-pa ren t would automatically become a member of the Church of Sweden, unless the parent notified the proper Church authorities otherwise.185 Furthermore, a member of the Church could not freely r evok e his or her mem bership pr ior to the enactment of the Freedom of Religion Act of 1951186 without joining another Christian denomination.187 By rem oving the automatic membership of children and allowing revocation of an existing membership in the Church, forced membership in the Church had been eliminated, and p eople t her eby be came free to view the Church as a religiously motivated organization, rather than a state institution, just as bishop Billing had advised.188
4. The pa rliam ent’s proposal for disestablish m ent The report produced by the Investigatory Committee of 1994 was sent to many orga niza tion s a nd exper ts t o obt ain feedback
182. See SOU 1997:41, supra note 22, at 85. 183. See SFS 1992:300. 184. See SOU 1997:41, supra note 22, at 85. 185. See supra notes 71-74 an d accompa nyin g text . 186. See supra notes 111-12 an d accompa nyin g text . 187. See RegSkr 1995:1, supra note 5, at 6; SOU 1 997:41, supra note 22, at 73. 188. See supra notes 80-84 an d accompa nyin g text . D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
730 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 and commentary.189 Bas ed on th e report a nd comment ar y, the Social Democratic government presented a recommendation to Kyrkomötet on June 15, 1995190 stating th at the Church of Sweden, as a matter of principle, should be disestablished.191 The Social Democra ts convinced the Cent er P ar ty, wh ich un til this tim e h ad been the prim ary oppon en t to disestablishment bot h polit ica lly and in Kyr komötet , t o vot e for a sepa ration of the Church and the state.192 Kyrkomötet considered the government’s recommendation during a congress in August of 1995 and con cluded t hat the principa l compon en ts of t he recommendation properly accounted for the Church’s needs, and could ther efor e be the fou nda tion for a refor mation of th e then existing relationship between the Church and the state.193 Due to the broad political and Church-based support it wielded, the government submitt ed in October of 1995 a pr opos al t o the parliament for th e disest ablishment of the Chu rch of Sweden , a seve rance that would undo many hundreds of years of preferential treatment of one denomination over others.194
IV. LEGISLATIVE HISTORY AND AN ANALYSIS OF THE DISESTABLISHMENT OF THE CHURCH OF SWEDEN No deba te or deliberat ion by the governing body in Sweden has been as lengt hy as the one per ta ining to th e relation ship between the state and the Church of Sweden.195 Since the beginning of the early twentieth cent ury, many people have proposed various solutions to the increasingly recognized need for a change in the church-state relations.196 Several investigations have been performed and some chan ges carried out.197 Most reforms ha ve focused on making th e Church successively more independent of the state. The proposal
189. See SOU 1997:41, supra note 22, at 88. For a summary of the responses, please re fer to D S 1 995 :34 [D ep ar te me nt ss er ien 199 5:34 ]. 190. See RegSk r 199 5:1, supra note 5. 191. See SOU 1997:41, supra note 22, at 88. 192. See Dir. 19 95:162, supra not e 11 6, a t 2 18; see also Gibson , supra note 123. 193. See SOU 1997:41, supra note 22, at 88. 194. See id. 195. See Statens offentliga utredningar [The Government’s Public Investigations] SOU 1997:55, at 3 [hereina fter S OU 1997:55]; A Hist oric Reform, RegS kr 1997 :2, supra note 119. 196. See SOU 1997:55, supra note 195, at 3. 197. See SOU 1997:41, supra note 22, at 74-87. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 731 submitted by the governm ent and passed by the parliament198 on December 8, 1995, is one more substantial step in the direct ion of creating an independent Church of Sweden and equality among all r eligiou s a ss ocia tion s in rela tion to the state.199
A. The Govern m ent’s Draft Proposal to Kyrk om ötet Before the government formulated its proposal in 1995, it went through th e customar y “remissbeh an dling”200 period, during which comments were solicited from affect ed orga niza tion s and exper ts. After receiving fee dback on the recommendation from the Invest igat ory Commit tee of 1994, th e Social Democratic government submitted a draft proposal to Kyrkomötet for comments,201 in which it proposed two main ideas. First, a special Church of Sweden Act should be enacted, in which the ba sic function s a nd or ga niza tion s of t he Church should be regulat ed. Second, equa lity a mong all religious association s sh ould be pr omoted by giving a ll d en omin ation s the sam e constitut ional protection as the Church of Sweden. This would occur through th e enactment of a law per ta inin g to all religious associations wh ich would provide for a special form of ass ocia tion called t he r egist er ed denomin ation .202 As basic prem ises for its draft proposal, the government stated that it was obliged to design a new type of relation to the Church of Sweden, one more adapted to the modern Swedish
198. When the govern ment subm its a pr oposal to the pa rliam ent, it will be assigned to one of ma ny St an din g Com mi tt ees to b e pr epa re d for su bm iss ion t o th e full chamber for voting. For a description of how the Swedish government and parliament work, see Sveriges Riksdagen, The Swedish P arliam ent Web Site (visited Apr. 9, 1999)
732 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 society.203 Such a relat ion must be acceptable to a great majority of the society, thereby crea tin g a sta ble and long- lastin g working environment for the Church and all other denominations in relation to the state.204 Another fundamental objective was that a solution to the existing r elationship must ensure that the Church, even in the future, could serve the entire Swedish society.205 The government also said the refor ms should increase equa lity a mong all denominat ions, including the Church of Sweden.206
1. Con stitutional considerations The In ves tiga tory Com mittee suggested to the government that a new chapter about the Church of Sweden be added to the Con st it ution , which would provide for a specially enacted Church of Sweden Act, t hrough wh ich const itutionally manda ted norm-givin g or legislative aut hority could be granted to the Church over its local parishes.207 Laws regulating religiou s associations in general were suggested to be enacted as ordinary statutes.208 Both types of laws would be a men able to modification only by the same procedures used when changes to the P arlia men tary Act were m ade, with the in ten tion that the laws would be granted more protection than a regular statute, but less than a constitutional or fundamental law.209 Several orga niza tion s objected to this part of the Committee’s recommendation as being too vague or not sufficiently justified.210 To illustr at e, th e Swedish Supreme Cour t criticized the proposed new cha pter gr an tin g constit utional legisla tive authority to the Church on the basis that it may violate the
203. See RegSk r 199 5:1, supra note 5, at 14. 204. See id. 205. See id. 206. See id. 207. See id. at 13. 208. See id. 209. The Pa rliamen ta ry Act is in S wedish “The Riksd ag Act.” “Th e Ri ks da g Act occupies a position somewhere between fundam ental law a nd or dina ry st at ut e law,” wh ich “cannot be changed other than after very careful consideration an d on the ba sis of br oad politcal [sic] majorities .” Dahl, supra not e 63 ; see als o dis cus sion supra note 63. 210. “Förslaget . . . ha r a v bl.a. J us tit iek an sler n, S vea hov rät t och Ka m m arr ät ten i Stockholm anset ts otillräckligt motiverat eller pre cisera t.” RegSk r 199 5:1, supra note 5, at 13 (t ra ns . by au th or). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 733 religiou s fr eedom of each parish to decide its own affairs.211 The crit ics noted that Kyrkomötet’s recommended authority would possibly elimin ate t he loca l parishes’ autonomy,212 which is one of the pillars of t he dem ocratica lly orga nized folk church. Further pr oble ms w it h the propos al, a ccording t o the Court, included the fact that the Church as a whole and each parish would obtain legal entity status, and that the question of which part of the Church would be lega lly respon sible in va riou s situations had not been determined. The Court was also concerned that the laws did not specify the division of power between the Church as a whole and the individual parishes.213 In its draft proposal, the government recognized that the Committ ee’s recommen dat ion to give the Church of Sweden preferential status over all other denominations, through constitutionally mandated norm-giving or legislat ive au th ority and a special Church of Sweden Act, had incurred the most empha tic criticism.214 Bestowing the Church with such status would not be acceptable to the critics, especially consider ing t he Freedom of Religion Act and equality principles.215 In particular, the critique focused on the fact that Kyrkomötet would be able to issu e r egu la tion s based on constitutional authority, albeit binding only upon the Church’s internal orga niza tion s and local parishes.216 The critics suggested that with such power s, the Church must st ill be considered pa rt of the st ate a pp aratus beca use it s n orm-givin g ca pa cit y wou ld be derived from the Instrument of Government217 and from the delegation of those powers by the parliament.218 In response to this critique, th e government reasoned t hat the strong hist orical ties between the Church and the state could not be altogether disregarded.219 Man y people are still closely at ta ched t o their local parish, and th e historically important church buildings and th e cultur al m ilieu t his
211. See id. at 13-14. 212. See id. at 15. 213. See id. at 14. 214. See id. 215. See id. 216. See id. at 15. 217. The Instrument of Government, “Regeringsformen,” is one of Sweden’s fundamental law s a nd is p ar t of t he Swe dis h C ons tit ut ion. See Dah l, supra note 63. 218. See RegSk r 199 5:1, supra note 5, at 15. 219. See id. at 8. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
734 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 environment crea tes, so the Church has an important role even in t he modern society.220 Nonetheless, the preferential status of the Church is not contemporary; it is at least to some degree obsolete. Fu rt her more, it is difficu lt t o reconcile th is historic relationship an d the existing pr eferen tia l status of the Church with the principle th at th e st at e must r emain neu tr al, t hough positive, with respect to all denominations.221 The government acknowledged that it does not have any reason for continuing the pr eferen tia l t rea tmen t of the Church at the expen se of all other religious associations.222 It therefore found the critique well founded and decided to exclude from its draft proposal the Investigatory Committee’s recommendation that Kyrkomötet be granted constitu tionally man dated norm-giving or legislative authority.223 In fact, the government said in the draft proposal that th ere is no constit ut ional need for such preferen tia l treatment.224 Inst ea d, the Church must be give n other tools for regulating its internal affairs.225 The government offered a compromise, consisting of removing from the Constitution the Church’s authority over its local organizations and instead placing such authority only in the Church of Sweden Act.226 The government stated that the Act should est ablish Kyrkomötet—based on dem ocrat ic elections—as the lea ding orga niza tion for the Chu rch on th e na tional level, wh ile also providing that the loca l parishes and d ioces es be respon sible for loca l church activities.227 Through t his compromise, th e government constructed an organizat ion tha t could administer to the Church’s inter nal bu siness on a national le vel. At the same tim e, th e govern ment protected t he local organiza tions’ autonomy an d neutr alized much of the criticism based on the constitutional mandate recommended by the Committee. On the other hand, the governmen t did n ot respon d satisfactorily to the argument that, although the Church no
220. See id. 221. See id. at 15. 222. See id. 223. See id.; see also Prot. 1995/96:34, anf. 57, 58. 224. See RegSk r 199 5:1, supra note 5, at 18 (“Det finns däremot inte n ågot konstitut ionellt behov a v att i grun dlag sk riva in att det s kall finn as en sär skild lag om Sve ns ka ky rk an .”) (tr an s. b y a ut hor). 225. See id. at 15. 226. See id. 227. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 735 longer has constitutionally mandated legislative aut hority over its internal organization, there will s till be a sp ecia l Ch urch of Sweden Act. No other religious association will be governed by a special law, so this Act smacks of violation of the principle of equal treatment of all religious associations. The government’s an swer to this critique is two fold . F ir st , t he Church has such a particular position in th e Swedish society, derived from its historical ties to the state a nd t he developm en t of th e society in gener al, and s till performs s uch im por tant pu blic function s 228 that special regulations must be en acted for the Church; one genera l law regulating all denomina tions would be a greater violation of the requiremen t of equal treatment in the la ws as it would be much too dominated by the special ru les necessary to govern the Church. Secon d, the propos ed Act will n ot force anyone to participate in religious a ctivities , n or hin der anyon e from exercising a religion of his or her choice.229 The Act does not ther efor e con flict wit h the F reedom of Religion Act.230 Furthermore, the government proposed to Kyrkomötet an ext en sion to all religious association s, in clu ding t he Church of Sweden, of constitu tional protection in r egards to both lega l entity status and the procedure for enacting laws regulating the religiou s associations in order to provide equalit y and st abilit y for and among all denominations.231 At present, only the Church has a right to participate in the making of laws affecting it in th e religious aren a. Th e process by which the parliament passes such r egulation is controlled by the rules protecting the Riksd ags Act,232 thus pr oviding some heightened protect ion to the Church aga in st unfavor able regu la tion .233 In contrast, laws regu lating religious associations other than the Church may be enacted as ordinary statutes,234 which offer no more protection than ordinary traffic and tax laws.235
228. The Chu rch k eeps m an y of the pu blic records of th e citizens, an d it is responsible for providing burial grounds for members an d nonmem bers alike. 229. See RegSk r 199 5:1, supra note 5, at 18. 230. See id. 231. See id. at 16. 232. See supra note 63. 233. See RegSk r 199 5:1, supra note 5, at 16. 234. See id. at 17. 235. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
736 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
The government st ated in it s d raft pr opos al t hat it did n ot see the need to add a new chapter to the Constitution to effectuate constitutional protection for all religiou s associations. Rather, the government proposed t o rea ctiva te a nd m odify section 6 of chapter 8 of the Instrument of Government to include gener al r egula tion of, and pr otection for, all r eligiou s associations.236 The purpose of such a provision was to ensure equality am ong th e den ominat ions, as well as a sta ble environment for the particular services that religious associations contribute to society, without affording them greater protection th an what was given to oth er volunta ry a nd civic associations—no religious association should be im mu ne aga inst ordinar y civil237 an d pu blic238 laws.239
2. Municipality status After havin g explain ed it s p osition on the question of constitutional protection and equalit y a mong a ll r eligiou s associations, the government focused on the recommendation of the Committee of 1994 that the current status as a municipality sh ould be r evok ed from the loca l parishes of th e Church.240 The pa rishes have s trongly opp osed s uch action for several reasons. First, mu nicipality sta tus is closely linked with econ omics—the parishes’ ability t o collect Church taxes to pay for services depends on their mu nicipalit y st atus. If t he parishes lose one, they would lose the other; they were thus afraid th at if they could no longer collect Chu rch ta xes, they
236. See id. at 47. The su ggested language of Chapter 8, section 6 provided: “Regulations affecting the Church of Sweden and all other religious associat ions will be en act ed a s la ws. Su ch la ws m ay r egu lat e t he ba sic fou ndations of th e or gan iza tion and activities of the Church of Sweden .” Id. (“För eskr ifter om S ven sk a k yr ka n och andra trossamfund m eddelas gen om lag. I så da n la g får bes tä mm as grun der na för Svenska ky rk an s or ga ni sa ti on och ver ks am he t. ”) (tr an s. b y a ut hor). 237. “Civilrätt slig lagstiftnin g.” Civil laws are those that regulate the individual citizens’ rights against one another. See Konstitutionsutskottets betän kande [Cons ide ra tion of the Com mit tee on Const itu tiona l Questions] 1995/96:KU 12, in SVENSKA KYRKAN I FÖRNYAD GESTALT [THE REFORMED CHURCH OF SWEDEN] 191, 199 (Verbum 1996) [her eina fter 1995/96:KU 12] (tra ns. b y au th or). 238. “Offentligrät tslig lagstiftning.” Public laws regulate the state’s and s ociety’s structure and the state’s relation to its citizens as it exercises its official power and au th ority. See 1995/96:KU 12, supra note 237, at 199. 239. See RegSk r 199 5:1, supra note 5, at 17. 240. See id. at 18. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 737 would not be able to provide their services.241 Second, the municipality stat us provides st abilit y for the par ishes by granting each parish independent legal entity status.242 Las tly, the pa rishes, in their comments on the Committ ee’s recommendations, stated that it is not necessarily the municipality status itself they strive to protect . Rather, it is important to them that the values promoted by such status be preserved, particularly the values of the parishes as locally anchored and democratically governed organizations.243 Although it acknowledged that the parishes’ comments must be respected, t he gover nmen t sa id that sever al r ea son s exist for revoking from the parishes their status as municipalities.244 Th e m ost im por tant just ifica tion for denying parishes mun icipa lity st atus lies in th e fact t ha t, just as citizenship in secular m un icipalities is mandatory for those with in its boundaries, so is membership in the loca l Ch urch municipality also mandatory for members and nonmembers alike.245 Although forced membership in the Church has been removed from t he la w books, each citizen of Sweden still belongs to bot h a secula r and a Ch urch municipalit y, even if the latter is only for pu rpos es of ass essing t he Church and Dissent er Taxes246 th at in pa rt pay for cultu ra l and historical upkeep and public burial grounds.247 This forced inclusion is the basis for the municipality status of each parish. However, th e mandatory membership in one’s local Church mu nicipality operates contrary to the constitutional solution of the government’s draft proposal,248 and it is incompatible with the Freedom of Religion Act of 1951. It also arguably violates the 1996 modifications of t he m em bersh ip requir em en ts of t he Church of Sweden Act, wh ich removed t he fin al elem en t of
241. See infra notes 283-85 an d accompa nyin g text . 242. See RegSk r 199 5:1, supra note 5, at 18. 243. See id. at 19. 244. See id. 245. See Mar ita Ulvsk og (s), Prot. 1995/96:34, a nf. 32 (“Alla som är folkbokförda i en församling är medlemm ar i den oberoende a v om de tillhör Svenska kyr kan eller in te .”); see als o RegSk r 199 5:1, supra note 5, at 19. 246. Members of the Church of Sweden pay a Church Tax, and nonmembers pay a Dis se nt er Ta x t ha t i s a bou t t went y-five pe rce nt of th e ord ina ry Ch ur ch T ax. For more information, see supra note 102. 247. See RegSk r 199 5:1, supra note 5, at 19. 248. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
738 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 forced membership in the Church.249 In its draft proposal, the government stated that there is broad support to eliminat e the Dissent er Tax presently assessed to nonmembers and replace the Church Tax wit h a Chu rch Fee, payable only by m em bers of the Church.250 Removal of the Dissen ter Tax would extinguish mandatory membership in the local Church municipalities, and the local par ishes could t hen by definition no longer be considered municipalities.251 The government concluded that no compelling reason s exis ted for pr eser vin g t he Church municipality.252 Additionally, th e thir d concern r aised by the local parishes 253 in relation to losing their mu nicipality st at us would be resolved under th e draft proposal as the local pa rishes would continue to be loca lly anchored and d em ocratica lly governed under the Act.254 Accepting that argument, one organiza tion remarked that because the Chu rch is a “Folkkyr ka ,”255 the real contribution of the Church of Sweden occurs on the local rather than on the regional or national level, and the parishes must therefore be guar an teed a dem ocrat ic form of organiza tion.256 Several commentators focused on the same point, arguing that the n ation al or ga niza tion must ther efor e n ot be give n too br oad of powers over the local parishes. Such powers would impede the democratic form of governan ce, which is one of the essent ial characteristics of the Church.257 The problem accentuated by these arguments, however, is that allowing each parish to become a legal status and self-governing entity may create a situa tion where the Church on the national level p ulls in one direct ion , while the local parishes drive in several other directions.258 On e or ga niza tion respon ded t hat a framework should be set up with in wh ich t he local parishes may act indepen den tly, balancing the power of the Kyrkomötet and
249. See supra notes 184-88 an d accompa nyin g text . 250. See RegSk r 199 5:1, supra note 5, at 19. 251. See id. 252. See id. 253. See supra note 240-43 an d accompa nyin g text . 254. See RegSk r 199 5:1, supra note 5, at 19. 255. See supra note 73. 256. See RegSk r 199 5:1, supra note 5, at 21. 257. See id. 258. See id. at 22. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 739 other Church organizations on a national level with th e local parishes’ need for aut onomy. 259 On this problem, the government simply stated that th ere is no reason to presum e that the various levels of the Church will be at odds.260 Local pa rishes, independen tly enga ged in the work of the Church, a re some of t he Church’s most important resources and are wha t will a llow the Chu rch in the long run to stay vibrant and ener get ic.261 Consequently, the governm ent expressly stated in its draft proposal that the Church of Sweden Act should provide for and ensure that the local parishes are independent and self-governing democratic organizations.262
3. The Church of Sweden Act As mentioned above, the government agreed with the recommendation of the Committ ee of 1994 that a special Church of Sweden Act should be enacted263 so as to preser ve the Church’s identity and characteristics.264 The government stated to Kyrkomötet that this Act ought to provide that the Church be of an eva ngelical-Lutheran confession and Episcopal str ucture, and that it be a dem ocratically based, nationwide Folkkyrka.265 Th is Act sh ould also establish the in dependence and self-governance of the local parishes and dioceses, and the mandatory obligation for member s of the Church to pay a Church Fee.266 The state must not through this Act determine the Church’s identity in detail, however. Hen ce, the Act should only in clu de the ess en tia l provis ion s t o en su re t he protect ion of the Church’s fundamental qualities.267 Based on the critique leveled against this special law,268 th e governmen t sta ted in its draft proposal to Kyrkomötet that this issue must be further
259. See id. 260. See id. at 16. 261. See id. 262. See id. at 20. 263. See id. 264. See id. at 22. 265. See id. at 20. 266. See id. 267. See id. at 23. 268. See the te xt acco mp an yin g foot note s 2 28 t hr ough 230 for an ide a of t he government ’s re spon se t o th e cr iti qu e t ha t r eligi ous fre edom does not all ow for a separate Chu rch of Sweden Act. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
740 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 investigated. The government also said, however, t ha t the need for more information should not be an obstacle to making a decision , a s a matter of pr in ciple, to disest ablish the Church.269
B. Kyrk om ötet’s Consideration Although Kyrkomötet recognized th e need for more equ alit y among all religious a ss ociations, its con sideration of th e government’s draft proposal270 strongly emphasized that the historical, economic, and social ties between the Church, state and society in general would in reality necessitate a certain preferential tr eat men t of the Chu rch, whet her “one likes it or not.”271 That the state shares this view is demonstrated in the proposed Chu rch of Sweden Act, said Kyr komötet.272 The historical ties are eviden ced in t he chur ch buildings an d buria l grounds; the social ties are shown in the h igh percen tage of Church participation in momentous times of peoples’ lives and th e high percentage of Church membership and the nationwide Church activit y; t he economic t ies derive from the costs of preserving the cultural and historical monuments and rendering social services.273 Based in par t on its approval of the pr inciple of equality, and in smaller part on the gover nmen t’s recogn it ion that the Church deserves some special status, Kyrkomötet accepted th e government’s proposal to modify the Constitution to provide protection for all r eligiou s a ss ociations, including the Church, and the proposal that a Church of Sweden Act be enacted.274 Kyrkomötet said the Church of Sweden Act must be constructed as a fram ework law, supplying only the basic organizational structure of the Church. Nevertheless, it must be more specific t han pr esen ted in the draft proposal regarding the divis ion of power between the loca l, r egional a nd n ation al divis ion s of the Church.275 It noted that norm-givin g or
269. See RegSk r 199 5:1, supra note 5, at 23. 270. See 2KL 1995:1, supra note 202, at 69. 271. Id. at 93 (“Men det är av h ist oris ka , socia la och ek onom iska skä l illusoriskt att påstå att Svenska kyrkan i praktiken inte skulle ha en särställning, ma n m å gilla denna ell er in te .”) (tr an s. b y a ut hor). 272. See id. 273. See id. at 93-94. 274. See id. at 106. 275. See id. at 95-96. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 741 legisla tive authority will not be delegated from the state t o the Church and s aid that this will en able the Church to become more independent. Such independence would open up opportunities for the Church to renew itself as an open and dem ocrat ically ba sed Folkkyr ka .276 As the draft proposal suggested a decision about disestablishm ent only as a m at ter of principle rather than a fully detailed an d complet e resolut ion, Kyrkomötet expressed that the ensuing investigations must be pu blic and a llow active part icipation on the part of affected organiza tions, includin g th e Church.277 Two such inves tiga tions involved t he a rea s of t he Dissenter Tax and municipality status of the local parishes. There is broad support within the Church for removing the Dissent er Ta x, ba sed on the principle of r eligiou s fr eedom .278 Kyrkomötet said that because the Church views itself as an open Folkk yrka, it was na tu ra l for the Church to request the removal of a tax im pos ed on p eople who ar e n ot mem bers of t he Church.279 The Dissenter Ta x is based on t he still existin g mandatory membership in the Church municipality.280 This forced membership was, according to Kyrkomötet, in compatible with the religious freedom an d removal of the Dissenter Ta x.281 More importantly, any mandatory membership is contrary to the Chu rch’s view of itself as a F olkkyr ka .282 Kyrkomötet therefore agr eed t ha t t he next logical step m ust be to rem ove the Church municipality status.283 The Church, it must be noted, wa s t rouble d by t he prosp ect of losing the municipality status du ring its examinat ion in 1979 of a proposal similar to the one considered in 1995.284 This concern had ch anged by 1995, a nd it is im por tant to consider the basis for the tr ansformation of the Church’s disposition. On the one hand, the Church was concerned that it could not provide its ser vices du e to the lack of funding a fter a severance
276. See id. at 95. 277. See id. at 96. 278. See id. at 97. 279. See id. 280. See supra notes 245 t hr ough 252 an d accompa nyin g text . 281. See 2KL 1995:1, supra note 202, at 97. 282. See id. 283. See id. 284. See supra notes 146 and 147 an d accompa nyin g text . D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
742 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 of the ties with the state. On t he other hand, the Church kn ew that it must become an indepen dent r eligious associat ion in ord er to cla rify its r eligious messa ge, ju st as Bishop Billing h ad argued in the 1920s.285 One key to th e change m ay lie in Kyrkomötet’s comments on the government’s draft proposal. It stated that the Church is a denomination grounded in God’s grace, an d tha t one basic char acteristic of God’s grace is t ha t it is not based on force. This was the gu iding principle for the bishops in 1929 and the proponent s of the Freedom of Religion Act of 1951 when a dvancing the righ ts of people not to be forced into membership in t he Church.286 Wha t u sed t o be gener ally acceptable—forced membership in the Church—is in modern society no longer agreeable.287 The identity of the Church is determined in light of its relat ion with other associations, both religious and secular, and with society in general. It was therefore important to one organization that dialogue be promoted with other organizations and society based on religiou s freedom and equalit y,288 which would not be possible without removing the Church’s municipality status. In essence, forced membership in a Church municipality and the obligation to pay a Dissenter Tax ha ve outlived their usefulness. Kyr komötet sa id that “[c]ont in uit y a nd ch ange complement one another.”289 The continuity consists of the Church’s religiou s m essage to everyone in the society, but continuity does not require t ha t a ll of society be compelled in to membership in the Church or Church m un icipality, as t his would be contrary to the gr ace of God. 290 Indeed, to ma int ain its character of a Folkkyrka, the Church must change with the society it serves. “The mu nicipality st at us, which ha s great ly benefited the Church for over one h undr ed yea rs, is not as clearly a ben efit in toda y’s mult i-cult ural and m ult i-religiou s society.”291 In its consideration, Kyrkomötet concluded that the
285. See supra notes 75-76, 84-85 an d accompa nyin g text . 286. See 2KL 1995:1, supra note 202, at 97. 287. See id. 288. See id. at 112 (Bilaga 3, Lär onämn den s ytt ra nde 1995:17 [Appen dix 3, A Statement by t he Com mi tt ee on Le ar ni ng ]). 289. 2KL 1995:1, supra note 202, at 98 (“Kontinuit et och förnyelse betin gar var an dra .”) (trans. by author). 290. See id. at 97. 291. Id. at 98 (“Kommunbegreppet, som under ett drygt århundrade i hög grad gagnat Svens ka k yrkan , är int e lika självkla rt en t illgång i de n a ktu ella D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 743
Church of Sweden Act a nd th e genera l protection for all religiou s associations will allow the Church to preserve the democrat ic values, local activities and self-governance that were safeguarded under the parishes’ status as municipalities.292 To remove the mu nicipality sta tu s would therefore not threaten the Church’s iden tit y an d its ability to continue to serve th e society. To th e contr ar y, such a r eform is precisely the change that the Church needs to remain a dynam ic, ener getic and legit ima te Folkkyr ka .
C. The Government’s Proposal to the Parliament and Kyrk om ötet’s Consideration The governmen t subm itt ed its final proposal to the parliament on Oct ober 5, 1995. This pr opos al wa s a lm ost identical to the draft proposal pr esen ted to Kyr komötet for feedback. In the final proposal, the government noted Kyrkomötet’s concession that municipality status was not an obvious benefit to the Church in t oday’s value-plu ra listic society.293 The proposal also recognized that Kyrkomötet had said that the withdrawa l of norm-givin g com peten cy will a llow the Church to show society that it is a religiously motivated, independent orga niza tion ,294 ther eby a llowin g it s r eligiou s message to be more pronounced.295 In addition, the proposed Church of Sweden Act does not viola te t he r eligiou s fr eedom of the Church, alt hough it will specially r egulat e the Chu rch, as the Church for the most pa rt agr ees t o the ge ner al provis ion s of the Act. Nonetheless, the government agreed with Kyrkomötet that the scope an d term s of the Act requ ired furth er a na lysis and in ves tiga tion .296 Kyrkomötet gave its recommendations for and prompt ed the governm ent to include in th e Act well defined
må ngku ltu rella och må ng re ligi ösa sa mh äl lss it ua ti onen .”) (tr an s. b y a ut hor). 292. See id. at 98. 293. See Regeringens proposition [The Government’s Proposal] 199 5/96:80, in SVENSKA KYRKAN I FÖRNYAD GESTALT [THE REFORMED CHURCH OF SWEDEN] 139, 149 (Verbum 1996) [her eina fter Pr op. 1995/96:80] (tr an s. by a ut hor ). 294. See id. at 139, 154. 295. The governm ent noted in a dra ft p ropos al to K yr kom öte t i n 1 997 th at “[t]h e role [of the Chu rch of Swede n] as a religious ass ociation has come to be emphas ized as obligations of a social an d secula r n at ur e ha s been rem oved an d th e activit ies ha ve been conce nt ra te d on th e Ch ur ch’s m ai n ob liga ti on, wh ich is to spread th e gospel.” A Hist oric Reform , RegSk r 199 7:2, supra note 119 (tr an s. b y t hi s a ut hor). 296. See Prop. 1995/96:80, supra note 293, at 162. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
744 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 guidelines in regards to responsibilities, obligations and regulatory authority among the local, regional and national orga niza tion s of the Church.297 Agreein g t o most of Kyrkomötet’s comments, the government called in its proposal for future in ves tiga tion of th e bou nda ries of th e Church of Sweden Act, both as to the internal regulation by the Church and a s t o the exter nal lim it s of t he Act itself.298
D. Two Debates in Regards to the Government’s Proposal The mem bers of parliament met the government’s proposal with an unusual set of coalitions and fence straddling. Under ordinary circumstances, the two prevalent parliamentary coalit ion s in Sweden pit the Conservat ive, Chr istian Democratic, Liberal and Center parties against the Social Democratic, Communist and Environmental parties. During the debates over the changed relat ions between the Church and the state, however, these traditional alliances were bypassed on two levels . F ir st , t he Conserva tive, Ch ristia n Democratic, Center and Social Democratic parties in general combined against th e Liberal, Commu nist a nd En vironmental parties. Second, th ere was a br eak down of int ra party consensus, as several important members aligned themselves with other parties—producing somewhat unusual allies.299 Due to the fact that th is unu sual situ at ion mak es it difficult t o gener alize about each part y’s stan dpoints on th e church-sta te issues, this comment will present the t wo most importan t debates, in the Committee on Constitutional Questions and in the parliament’s Chamber, as they occurred. Although subargum ents sur faced during the two debates, the principal focus concerned whether the refor m wou ld go far enough wit h respect to the prin ciples of religiou s fr eedom and equality among all denominations. In particular, the deba tes
297. See id. 298. See id. at 159. The investigations that commenced after the government’s proposal pass ed in 19 95 ha ve been ut ilized to some extent in this comment. However, a thorough ana lysis of these investigations is not possible in th is com me nt . For further an alysis, t he r eade r m ay t ur n t o the publish ed considerat ions by the various Investigatory Comm itt ees: SOU 1997 :41-47, 55, supra note 22. 299. To illust ra te, a Comm un ist a nd a Conser vat ive found t hem selves a rgu ing for similar conclusions as the Libera ls in regards to whether one or two laws shou ld be enacted to govern all religious associations, including the Church of Sweden. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 745 centered around whether the parliament should enact one or two la ws , t hat is, wh et her it sh ould en act one law governing all religiou s ass ocia tion s, in clu ding t he Church of Sweden , or enact one law to regulat e and give special sta tu s to the Chur ch, and another law for all other religious associations.
1. The m otions in th e Com m ittee on Con stitutional Qu estion s After the government submits a proposal to the parliament, it is assigned to a parliamentary Committee that will prepare the proposal for a vote by the parliament in the Chamber. Due to the constitutional nature of the proposal, it was forwarded to the Committee on Constitutional Question s.300 The Communists301 on th e Committ ee su bmit ted a motion to reject the proposal on the basis that no religious association should be regulated by the state, including the Church of Sweden.302 They argued that the Church’s fear of losin g a gr ea t por tion of its membership is no just ifica tion for granting it special stat us in the Con st it ution or in a sp ecia l a ct.303 No reasonable rat ionale exists, said the Communists, for en actin g r egu la tion s or protections of religiou s associations, as the Constitution already provides each person and association with sufficient protection of their religiou s freedoms.304 In fact, granting constitutional protection to an a ssociat ion only because it is based on religiou s beliefs violates n onreligious associations’ right s to freedom of conscien ce an d equ alit y.305 Moreover, it is not clear whether the
300. “Konstitutionsutskottet.” (trans. by author). 301. “Vänsterpartiet.” (trans. by author). 302. See Motion till riksdagen [Motion to the Par liament ] Mot. 1995/96:K7. See supra note 125 for an explan at ion of Motion till r iksda gen n um berin g. 303. See id. 304. The Swedish Const itu tion pr ovides that “[a]ll citizens shall be guarant eed the following in their relations with the public administration: . . . 6. fr eed om of worship: the freed om to pra ctise one’s own re ligion either alone or in the company of others .” SWEDISH CONST., THE INSTRUMENT OF GOVERNMENT ch. 2, a rt . 1, ¶ 6, also available at Sveriges Riksdagen, The Swedish Parliament Web Site (visited Mar. 14, 1999)
746 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 proposal provides more freedom of religion, t he Commu nists stated, as the proposal draws all religious associations in under the state’s watchful and regulatory eye.306 Along the same line, the libera ls 307 stated that they were concer ned over the “effect of contagiousness”308 of regu la tory feve r: “The state may in the future embrace a false understanding that it m ay impose on religiou s associations other than the Church of Sweden the same obliga tion s p ropos ed to be contain ed in the Church of Sweden Act.”309 One mem ber of the Commit tee proceeded in a motion with a rather strong assertion based on the religious freedom principle.310 Gustaf von Essen 311 noted the ir ony in the fa ct that while it prides it self to be a cham pion of hu ma n r ight s and freedoms, Sweden has n ot moved forwa rd on the r eligiou s freedom front until very recently, a nd th ese la te reforms ha ve not been able to fully accomplish the goal of freedom of religion .312 Indeed, said Essen, one will not find laws gran ting the position of monopoly enjoyed by the Church of Sweden—after the propos ed refor ms—even in nation s dominated by t he Catholic Church; rather, one must look to the parts of th e world un der Islamic contr ol in order to find para llels to the suggested Swedish church-sta te m odel.313 Sweden is toda y a mult icultu ra l an d mult ireligious society, and the yearning for pluralism and religious as well as civic freedom is deeply r oote d in the developm en t of th e modern Swedish society, irr espective of which political majorit y governs the nation, said Essen.314 It appears to this aut hor th at people exp ect such a plur alistic society to protect all and not favor any one set of values or beliefs. The strong desir e for freedom and pluralism must be satisfied, both for the individua l qua
306. See id. 307. “Folkpa rt iet.” (trans. by author). 308. “Smittoeffekten.” Mot. 1995 /96:K6 (tr an s. by a ut hor ). 309. Mot . 1995/96:K6 (“En a nn an risk är . . . att statsm akt ern a i en fram tid kommer att a nse sig kunna ställa samm a kra v på andra samfund som på Svenska kyr ka n.”) (trans. by author). 310. See Mot. 1995 /96:K2. 311. Essen is a mem ber of the Conservative par ty, “Moderata samlingspar tiet” (trans. by a ut hor). 312. See Mot. 1995/96:K2. 313. See id. 314. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 747 individual and for societ y in gen er al, for a state-church system, or rather the lack of, to be legitim at e an d, para doxically, sta ble an d long-lasting. The progress toward greater pluralism has created a problem of two dimensions for the Church of Sweden, according to Essen.315 First , a state-church system is not acceptable to and does n ot refle ct the m odern Swedish societ y, which has created a forceful demand on the gover nmen t to refor m or abolish the outmoded system.316 Second, a pluralistic society is almost inevit ably less ordered and s table than a homogen eou s society, causing people to become bewildered and disconcerted.317 The Church, through its ties to the state and its antiqua ted organiza tional m odels, cann ot, according t o Essen, develop the dynamism and energy necessary to lead and guide people through the fast-paced moderniza tion of society an d the ensuing challenges people face due to these changes.318 Alon g the line of Bishop Billing’s argumen t seventy years ago, one member of th e Conserva tive Party stated in a motion to the Commit tee that “[t]h e Church’s respon sibilit y t o pr ea ch the Gospel and Chr istian ity is . . . no less import an t t oday t ha n before.”319 The governmen t’s proposal, responded E ssen , will not allow the Church to become sufficiently independent to ser ve the Swedish people in these cha nging times, because the state will, through the Ch ur ch of Sweden Act, continue to regulate the Church’s confession, organization and other matters. Moreover, these special regulations will give the Church a special status over other religious associations, conflicting with the principle of r eligiou s fr eedom .320 Essen suggested the governmen t en act only one law th at would govern all religious a ssociations equ ally, with out regula tin g a denomination’s confession, organization or extent of geographical coverage.321 No p rincipled rea son will ju st ify
315. See id. 316. See id. 317. See id. 318. See id. 319. Carl Bildt, Mot. 1995/96:K1 (“Svenska kyr ka ns up pdr ag a tt gen om evangelium förmedla det kristna bu dskapet är dä rför inte min dre vik tigt idag än vad det va ri t t idi ga re .”) (tr an s. b y a ut hor). 320. See Mot. 1995 /96:K2. 321. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
748 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 differentia l trea tmen t, either nega tive or pos it ive, of one or more denominations.322 The individua l demands by citizens cannot be resolved by collective solutions created by the state.323 In essence, Essen argued th at th e stat e should ther efore simply sever the bonds between the Church and the sta te a nd allow the Ch urch to differ en tia te it self fr om other religions based on its own identity, characteristics and confession, rather than through a state regulated scheme. Essen realizes that the Church of Sweden will be regulated sepa ra tely in several areas even after the reform. That the responsibility for pr oviding bur ial grounds, as it is now, will continue t o lie with th e Church was especially not acceptable to Essen, however. This responsibility should inst ead be entrusted to th e civic municipalities, which in t ur n should be au thorized to delega te such responsibility t o any religious association, including the Church.324 Likewise, as the maint enance and preser vat ion of cultur al va lues embedded in Sweden’s old churches and other historical monuments are very important to society, Essen suggested tha t it is only natural that the state take upon itself the burden of conservin g t hese cu lt ural obje cts in place of the Church.325 Likewise, th e Commun ists argu ed in th eir motion that the responsibility for ma int ain ing t he culturally and h istorica lly va lu able monumen ts s hould not rest with the Church; rather, these monuments are of interest to all of society, and the responsibility for their upkeep should be shared in the same way it is shared for other cult ural obje cts such as castles and museums.326 The views of th e Com munists, Lib er als and E ss en did n ot hold a majority,327 and the Committee, for several reasons,
322. See id. 323. See id. 324. See id. 325. See id. 326. See Mot. 1995 /96:K7. 327. Although the govern me nt will con tin ue to r egu lat e t he Ch ur ch, i t is wor th noting tha t Ess en, an d presu mably th e people of his view that only one , an d n ot t wo, laws should be enacted, rightly did not place all the blame for not drafting a proposal for a com ple te dis est ab lish me nt on t he gover nm en t. H e sa id t ha t t he Ch ur ch of Sweden did not appear to have enough self-confidence to accept the challenge to devise a confession and organization independent of the state th at wou ld a tt ra ct people and t o participat e in a m ovement t hat could allow Christianity to play a more important role in t he de velopmen t of the twen ty-first millen niu m’s adva ncing societ y. See Mot. 1995 /96:K2. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 749 rejected the id ea of categor ica l fr eedom of religion , wh ich would have resulted in a single la w gover nin g a ll r eligiou s associations.328 First, th e majority of the Committee a greed with the government’s proposal that the disestablishment must take into account the Church’s opinion a s well as the existing circumstances in society. It is essential to find the right balance between the Church’s specia l ch aracter istics and position in society and the need for reform in accordance with the principles of religious freedom and equality.329 Second, the Committee knew there was broad support in the parliament, Church and s ociet y for som e r egu la tion of religiou s association s.330 Thir d, the proposed regu lat ion did n ot violate the constitu tional r ight to religious freedom, a s no citizen would be pr eve nted from exe rcisin g t he r eligion of his or her choice, alon e or in association with others; the regulation did not compel any person to join a religiou s a ss ocia tion and would not coer ce people in to disclosing t heir religiou s a ffiliation .331 Fourth, the Church would not be a state institu tion after the refor m an d the local pa rishes’ municipality status will be removed. Hence, some regulation of the Church of Sweden was deemed bot h neces sa ry and p er mit ted, even in the fa ce of t he principles of freedom of religion and equ alit y. H owever , bot h the scope and details of the Church of Sweden Act must be limited to include only tha t wh ich is absolut ely necessary;332 the Act must not contain any excessive regulations.333 Carl Bildt of the Conserva tive pa rty stated in a motion that the party viewed the Church of Sweden Act positively. Bildt felt that som e r egu la tion may be necess ary t o pr eser ve t he Church’s iden tit y, particularly the idea of the Church as a Folkkyrka. It was important to Bildt that the Church continue to promote renewal of, and participation in, societ y. These obligation s requir e that it be given an opportunit y to fun ction as a true Folkkyrka, open and a ccessible to people in all geogr aph ica l
328. See 1995/96:KU12, supra note 237, at 200-02. 329. See id. 330. See Mot. 1995 /96:K3, K5. 331. See 1995/96:KU12, supra note 237, a t 202 . 332. The Chur ch agreed with t he governmen t th at t he scope of the Act must be ana lyzed further. See supra note 298 and accompanying text. 333. See 1995/96:KU12, supra note 237, at 203. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
750 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 areas of Sweden.334 The Church should therefore be required to ser ve in both populated and rural areas,335 desp it e t he fa ct that the urbaniza tion of religion crea tes an in cen tive for religiou s associations to serve the more heavily populated areas for bot h efficien cy a nd economic r ea son s. Marita Ulvskog336 stated that in addition to being readily ava ilable on a na tionwide basis, t he idea of a Folkkyrka includes the r equir em en t that it be accessible to the gamut of spirituality disp la yed in all of societ y, fr om those of lit tle or no spirituality to people who have infinit e faith.337 Anders Svärd338 explained the concept of Folkkyrka as an association based on the Gosp el, bapt ism an d sacra ment, rejecting no one. To function as a Folkkyrka, the Church must, according to Svärd, be democratically organized.339 That these important characteristics, necess ary t o the con cept of the Church of Sweden as a Folkkyrka, should be regu lated is to some degree necessa ry, and a majority of the members of the Conservat ive, Social Democratic and Liberal parties therefore accepted the refor m, including the special Church of Sweden Act, as a substantial and essential step towards a future of complete sepa ra tion notwith stan ding the resultin g preferen tia l treatment of the Church.340 Alf Sven ss on of the Christia n Democratic P arty341 also accepted the Act as a substantial step in the right direction despite the fact that the Act grants the Church a special status.342 According t o Sven ss on, t he gu idin g prin ciple for the refor m should be t o allow all religious associat ions to fulfill th eir religious an d civic responsibilities on as equal terms as possible. The modifications to the church-state relations do not change the r espon sibilit ies of th e r eligiou s a ss ociations; r ather, they will open u p new possibilities for all den ominations.
334. See Mot. 1995 /96:K1. 335. See supra notes 118-19 an d accompa nyin g text . 336. Ulv sk og is a mem ber of the Social Democratic Party. She was th e Church Minister in 1995 and was t he moving force behind the government’s proposal and its passage. See infra note 391. 337. See Marit a Ulvskog (s), Prot. 1995/96:34, anf. 41. 338. Svärd is a m embe r of the Liber al P ar ty. 339. See Anders Svä rd (c), Prot. 1995/96:34, anf. 50. 340. See Motion t ill rik sda gen [Mot ion to the Pa rlia men t] Mot. 19 95/96:K1. 341. “Kristdemokraterna” (trans. by author). 342. See Mot. 1995 /96:K5. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 751
Religiou s activities, including those pr ovid ed by t he Church of Sweden, cannot be isolated from society in genera l, accordin g to Svensson.343 A state cannot be based on neutral ethics or values; because the sta te a nd its political parties should and must be nonconfessional, Svenss on sa id, t he r eligiou s associa tion s of a society must embrace the task of promulgating, clarifying and imparting respect for the values and views of life underlying t he coh esive forces that allow for a nation’s society to remain concordant.344 “The most important task for the Church is and has always been to preach the Gospel of Christ.”345 Since the Ch urch of Sweden has pr eached the Gospel in all of Sweden, a nd h as h istorica l im por tance for the development of Swedish society, the Church has a particularly grea t r esponsibility to be pr esen t on a n at ionwide scale.346 It is ther efor e a cceptable to have s ome temporary regulation of the Church, said Svensson. On the other hand, the task of promotin g values to society, including the n ecess ary prin ciples of freedom of religion , thought and expression, requires the removal of any ties between the state and any denominations,347 just as Bishop Billing argued seventy year s ago. Fur th erm ore, the opportun ity for people to practice or not to practice according to religiou s faiths and belief systems other than wha t is promoted by the Church of Sweden should not be thwarted merely because Sweden ha s declared itself a Christia n n at ion an d cultur e for many hundreds of years.348 A balance must be found that considers bot h of these factors, accordin g to Sven sson. It appears that th e govern ment ’s proposal of enacting a framework la w r egu la tin g on ly t he ess en tia l ch aracteristics of the Church satisfied Svensson’s concern for a balan ce between the state’s demands on the Church and t he n eed for religiou s freedom and equality, as he accepted the Church of Sweden Act.
343. See id.; see also supra notes 91 an d 92 an d accompa nyin g text . 344. See Mot. 1995 /96:K5. 345. Id. (“Kyrkans viktigaste uppgift är och har alltid varit att förmedla det kristna bu ds ka pe t. ”) (tr an s. b y a ut hor). 346. See id. 347. See id. 348. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
752 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
The majority of the Committee on Constitutional Qu estion s noted that the government’s proposal to disestablish the Church as a matter of pr in ciple ca lled for further in ves tiga tion s to solve th e para mount questions involved in the impending disestablishm ent. Consequently, the ma jority of the Committee ultimately suggested that the parliament pass the government’s pr opos al in it s entir et y, in clu ding t he Church of Sweden Act, as working guidelines for the disestablishment of the Church of Sweden.349 Noneth eless, four reservations wer e allowed to accompa ny t he Commit tee’s consideration as alt erna tive considerations for the final vote by the parliament. The first was made by Kenneth Kvist,350 who suggested that the government’s pr opos al be rejected as it viola tes the prin ciple of religiou s freedom and equalit y.351 Birgit Fr iggebo and Håkan Holmberg 352 drafted the second and third a lt er natives, wh ich proposed th at th e mean ing of the proposal be rewritten to say that the church-st ate r ela tion s w ill be modified in accorda nce with the r equir em en ts of fu ll equ alit y a nd r eligiou s fr eedom ; that the Church is not to be governed by public law;353 that the Constitution must not be modified to in clu de pr ovis ion s granting special status to the Church of Sweden; that the law pertaining to all religious associations be strictly construed insofa r as it r equires an y special provisions regula tin g th e Church; and that the Church should be aut horized to decide its internal affairs.354 Th e la st alt er native, subm it ted by s ome Conservatives and Liberals, per tain ed to giving supp ort to the Church for the maintenance of culturally and historically valuable religious monument.
2. The parliamentary debate on the consideration of the Com m ittee on Con stitutional Qu estion s On December 8, 1995, t he parlia men t deba ted and voted on the completed consideration su bm it ted by t he Commit tee on Constitutional Questions.355 Birgit Fr iggebo spoke first and
349. See 1995/96:KU12, supra note 237, at 191. 350. Kvist is a m embe r of the Comm un ist P ar ty. 351. See supra notes 301 t hr ough 306 an d accompa nyin g text . 352. Bot h Fr iggebo and Holmbe rg a re m embe rs of th e Liber al P ar ty. 353. See supra note 238. 354. See 1995/96:KU12, supra note 237, at 215. 355. See Prot. 1995/96:34 D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 753 asked whether the state-church system will in reality be dissolved in th e year two thousand, considering that the results of the called-for investigations will not be known at the tim e of the vote.356 She also objected that the government’s proposal was too vague. Friggebo’s concern was in large part grounded on the fact that the governmen t’s proposal ment ioned a special understanding between the Social Democratic government and the Center Party, as the lat ter firmly stated du ring the debate that the reform in no way causes a separation of the Church and the state—it was, according to the Center P ar ty, only a modification of the existing relations between the two instit utions.357 The proposal a cknowledges, said Friggebo, that Sweden has a state-church system at present but does not pronounce th at th is system will be abolished. In stead, the phrases “cha nged relations” or “changes in the relations” between the Church an d the stat e are used, indicat ing t he rela tion s will continue t o exist.358 Moreover, the proposal speaks of increased equ alit y, but does not su ggest fully developed equalit y am ong all den ominat ions. To the contr ar y, the government seeks to esta blish a balance between the Church’s sp ecia l status a nd t he prin ciple of fr eedom of religion .359 Religious freedom deman ds complete equalit y among all r eligious associations, t hought Friggebo; however, due to the h istorical chu rch-sta te r elat ionship, Fr iggebo said she would be willing to compromise, allowing some special treatment of the Church, if such treatment was kept to a bare minimum.360 Her compr omise con sist ed of a reser va tion to the proposal, admitting tha t some special—but very limit ed—regulations ma y be necessar y, stat ing t ha t t he Church, rather than the parliament, must be allowed to regulate its internal affairs and confession.361 The reserva tion was ultimately not successful, however, and received only fort y- seven of two hundred and ninety-eight votes.362
356. See Birgit Fr iggebo (fp), Prot. 1995/96:34, anf. 2. 357. See Prot. 1995/96:34, anf. 38. 358. See Birgit Fr iggebo (fp), Prot. 1995/96:34, anf. 2. 359. See id. 360. See id. 361. See supra note 354 and accompanying text. 362. See Pr ot. 1995/96:34. A tota l of 251 votes support ed th e proposa l (140 Social Democra tic Pa rt y, 65 Con ser vat ive P ar ty, 21 Ce nt er Pa rt y, 14 En vir onm ent al P ar ty, D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
754 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
Nils Fr edr ik Aurelius of the Conservat ive Party responded to Fr iggebo’s argu ment s by acknowledging that th e proposal is a compromise an d not flawless. However, Au relius said the people wh o argu e for the va riou s r eser va tion s and further- reaching reforms do not appea r t o rea lize they thereby promote the status quo or, in the best case, greater delays. This proposal is, accordin g to Aur elius, a necessary a nd subst an tia l, th ough per ha ps a n in complet e, st ep in th e right direct ion toward a just objective—a complete severance of the church-state ties.363 Aurelius also affirmed that the Church would be allowed to govern its internal affairs, although historical reasons and the need for broad support from bot h the polit ica l a nd Church spheres dictate that a separate law for the Church be enacted.364 In support of a separate law for the Church, Aurelius argued that a common law for all r eligiou s associations wou ld, t hrough the sheer volu me of t he r egu la tion necessary to preser ve the Church’s identity and obligations, be over wh elm ed by s uch regu la tion .365 The Church of Sweden Act contains at present some seven hundred section s, sa id Friggebo.366 If a la w governing all denominations other than the Church would need only a few sections, the gr ea t collection of regu la tion s for the Church may appear to demand a separ ate Church of Sweden Act, as argued by the government, Aurelius and others. Nonet heless, noted Friggebo, a draft law submitted to the Investigatory Committee of 199 4 r efu ted this ar gum ent . Friggebo said th e draft law contained an d needed only eight een sections to govern all religious associations, including the Church of Sweden. It consisted of eight sections specifically designed to govern the Church, four sections aimed at overseeing denominations other than the Church, and four sections common to all religious associations.367 This “eighteen section law” argu ment , th ought Friggebo, sh owed it is pos sible to regulate all denominations
11 Chr istia n Dem ocrat s), and 47 voted for t he a lterna tive (4 Conservative Part y, 23 Liberal Par ty, 18 Communist Par ty, 2 Environmen tal Pa rty); 3 abstained an d 48 were absent. S ee Prot. 1995/96:34. 363. See id. 364. See Nils Fr edrik Aur elius (m), Prot 1995/96:34, anf. 3. 365. See id. 366. See Birgit Fr iggebo (fp), Prot. 1995/96:34, anf. 4. 367. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 755 with one law that would include, bu t n ot be over whelmed by, the regulations necessary t o preser ve th e Chur ch’s ident ity. Thus, th e ar gum ent th at th e regulations of the Chu rch would overpower a single law governing all religious associations should be of little, if any, concern an d does not logically just ify a separate law a nd special treatment of the Church of Sweden.368 Whether ther e should be one la w gover nin g a ll r eligiou s associations, wh ich wou ld in clu de all r egu la tion s of t he Church of Sweden , or one la w for all religious associations and one separate la w con taining th e regulat ions for t he Chu rch, ha s become a symbolic question, Friggebo continued.369 Marita Ulvskog, although nonresponsive to the “eighteen section law” argument, answered that she did not wish to impart grea ter importance to the question of wh et her to enact one or two laws for the Church and other denominations, as she viewed it as an issue only of practical significance.370 Eva Zetterberg371 agreed with Friggebo and said she had hoped that Kyrkomötet would recommend to the government that it should enact one gener al la w for all r eligiou s associations rather than two laws.372 In response to Ulvskog, she also said it is wrong to view t his qu estion only a s a pr actica l issu e—it does, after all, involve principles that are fundam ental to a progressive society. 373 Pär-Axel Sa hlbe rg, of the same party as Ulvskog, answered that the need for two laws lies in the government’s inten tions to protect religious associations other than the Church, in par ticular th e non-Christian denominations which often operate under st ructures and values very different from the Church’s.374 One law would be
368. See id. This “eighteen section law” argument seems very persuasive, at least against th e conten tion t ha t one law govern ing all religious a ssociation s—includin g th e Chu rch—would be overpower ed b y th e n eces sa ry an d sp ecia l re gulat ions for t he Church. Th e “eigh te en sect ion law” argum ent seem s even more per suasive when consider ing that the government’s final proposa l for a C hu rch of Swe den Act contained onl y fou rt een secti ons an d t he Rel igiou s De nom in at ion Act consiste d of only seventeen section s. See Rege ringen s pr oposition [The Government’s Proposal], Prop. 1997/98:116, at 5-11 [hereinafter Prop. 1997/98:116]. Strangely enough, no one seems to have pursued this argument much further. 369. See id. 370. See Marit a Ulvskog (s), Prot. 1995/96:34, anf. 57. 371. Zetterberg is a m embe r of the Comm un ist P ar ty. 372. See Eva Zett erberg (v), Prot. 1995/96:34, anf. 53. 373. See id. at anf. 58. 374. See Pär -Axel Sahlberg (s), Prot. 1995/96:34, anf. 56. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
756 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 overwhelmed by the r egu la tion s of t he Church.375 Zetterberg replied that it had been determined during the in ves tiga tion s that most of the religious associations would prefer one law over two, based on equality and religious freedom principles.376 Sahlberg’s answer t hat the gover nmen t in ten ds to pr otect religiou s ass ocia tion s ot her than the Church is not satisfactory to this author. Besides the lack of response to the “eighteen section law” argumen t described a bove,377 he a tt empts to justify a sepa rate la w for the Ch urch of Sweden on the basis that the other religious associations come from situations that are too different from the Church’s to be accounted for in one general law. This argument does not make much sense to this author, as the various religious associations in Sweden that would be lumped toget her in th e general la w come from equ ally varied situations. A Swedish Baptist would have m ore in common with the Church of Sweden than with a Japanese Buddhist or a person devoted to Islamic teachings. It appears to the author that the proponents for two separate la ws come fr om two camps, espousing either an ideologica l or a pragmatic position. First, the Center Party illustrates the ideologica l position , in that it argu es for the enactment of two laws, rather than one, on the grounds it wishes to keep a relationship between the Church and the state and subst antially regulate t he Church eve n after the r efor ms occur.378 This seems to the author to also be the basis for Sahlberg’s position. On the other hand, Aurelius accepts the two laws based on the pragmatic position, as the enactment of two la ws app ea r to be necessary in order to reach a political consensus for taking this subst antial, but incomplete, step toward a full disestablishm ent. The more important concern to Aurelius was not whether there was one or two laws; rather, the important fact is that the
375. See id. at anf. 54. 376. See Eva Zett erberg (v), Prot. 1995/96:34, anf. 55. 377. See supra notes 366 t hr ough 368 an d accompa nyin g text . 378. Pa ra doxically, th e mor e regu lations of the Chu rch on e includ es in t he reform, th e gr ea te r t he per su as ive p ower for an argument from the prem ise “regulations for the Chur ch would be too overpowering” becomes , as this argument is based on an equ ivocation of two idea s of equalit y. The firs t idea, which t his comment dis cus ses, con sis ts of equ al it y a mon g a ll r elig iou s a ss ociat ions in tha t th ey shou ld all be t rea ted t he sa me by t he st at e. The ot her idea is that each en tit y or per son sh ould b e t re at ed equ al ly in an y en act ed la w, i n t he la w it se lf. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 757
Con st it ution will only gen erally r eference a law regulat ing t he Church and all other religious association s and not grant lawmaking or norm-giving authority to the Church.379 Whether a person attaches symbolic meaning to the enactment of one or two laws must be Fr iggebo’s individu al concer n, a ccording t o Aurelius. However, sin ce F riggebo has con ceded that historica l and practical rea son s m ay dictate t he special trea tmen t of th e Ch urch of Sweden , a deba te on the t opic is mer ely academic.380 A stronger attack along the same question of equality among religious associations was advanced by Kenneth Kvist,381 who said that although th e proposal indicat es a step in th e righ t direction, the proposed reform is far from being complete.382 The Communists viewed the proposal as a compromise, not the defin it ive sepa ration of th e Church and the state dem an ded by religious freedom, an d they th erefore felt obliged to mark the point of disagreement with the majority through a r eser vat ion to the proposa l.383 Kvist argued that not one person had p roven the exis tin g const it ution al protect ion of freedom of religion and association for both individuals and organizat ions to be ineffective or insufficient.384 No other form of association or corporation enjoys special protection under the law,385 he pointed out, and a law enacted for the protection of religiou s associations, and particularly an Act specifically designed for the Church or Sweden , should absolutely be opposed on the principle of religious freedom .386 Furthermore, the proposed reform would not further the protection of religiou s associations; on the contrary, it would subject such association s to more regulation than before, and would thus be a burden.387 Another proposal that clearly and absolut ely severs the bonds between th e stat e an d any religious associat ion should therefore be submitted to the parliament, said Kvist.388
379. See Nils Fr edrik Aur elius (m), Prot. 1995/96:34, anf. 5. 380. See id. 381. Kvist is a m embe r of the Comm un ist pa rt y. 382. See Kenneth Kvist (v), Prot. 1995/96:34, anf. 8. 383. See id. 384. See supra note 304 and accompanying text. 385. See supra note 305 and accompanying text. 386. See Kenneth Kvist (v), Prot. 1995/96:34, anf. 8. 387. See supra notes 306-09 an d accompa nyin g text . 388. See Kenneth Kvist (v), Prot. 1995/96:34, anf. 8. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
758 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
Aurelius respon ded wit h two question s. Fir st , h ow m uch more time would be needed to prepare a new proposal? Second, how can const it ution al protect ion of religiou s a ss ociations be considered a burden?389 No w ell-formulated responses came from Kvist on these question s. On the ot her hand, Pär-Axel Sahlberg of the Socia l De mocratic government said the Communists appeared to complet ely disregard the problems of non-Christian denominations, such as Japanese Buddhism,390 that are forced into a form of as sociation that is not suitable to th eir structure.391 The proposal will alleviate this problem by allowing such den ominat ions to obtain legal entity status alon g with all ot her register ed Tr ossamfund, with out compromising its original structure.392 A pragm at ic approach, sim ilar to tha t of th e Conservat ives, came from In ger Da vid son .393 She first noted that all previous proposals for disestablishment were rejected by th e government and Kyrkomötet. She also commented that any proposal, to be successful, would need t o further the equ alit y a nd r eligiou s freedom principle to the greatest possible extent by sever ing a s many ties between the Church and the state as possible, while also maintaining the support of a broad majority in both the polit ica l and religious spheres.394 As a Church Minister under the previous Conservative government, Davidson attempted to implement such a proposa l.395 The new Social Democrat ic government’s proposal, which continued Davidson’s project by using the proposition of the Committ ee of 1994 as a foundation, had obtained such broad political support.396 The altern atives proposed by the Communists and others, to make a more progressive or radical reform by a complete disestablishm ent, would not obtain the same broad support given the existing proposal; if the parliament were t o reject th e presen t proposa l, said Davidson, any kind of refor m would be impeded, and
389. See Nils Fr edrik Aur elius (m), Prot. 1995/96:34, anf. 9. 390. See supra note 125 and accompanying text. 391. See Pär -Axel Sahlberg (s), Prot. 1995/96:34, anf. 12. 392. See infra notes 408 t hr ough 410 an d accompa nyin g text . 393. Da vids on is a m embe r of the Chr istia n Dem ocrat ic Par ty. 394. See Inger Da vidson (kds), Prot. 1995/96:34, anf. 11. 395. There wa s a sh ift in th e gove rn me nt from a con ser vat ive t o a socialist coali tion befor e Da vidson coul d com ple te he r p roj ect . S ee Inger Davids on (k ds), P rot . 1995/96:34, anf. 11. 396. See Inger Da vidson (kds), Prot. 1995/96:34, anf. 11. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 759 perhaps made impossible.397 Th e Christia n Democrats, therefore, su pp orted the gover nmen t’s proposal. Th ey wer e, as Davidson stat ed, aware th e Chur ch would continu e to enjoy a special st atus a fter the ye ar-two-t housa nd r efor m; the proposal was, according to her, still a substantial move in the direction of equalit y a nd r eligiou s fr eedom .398 She also said that the Church’s status must be su bjected to further discussions after the reform is enacted.399 Nonetheless, Davidson said the “Christian Democrats prefer to cooperate and make possible a move forward rather than trudge in the same footsteps for the next several yea rs.”400
E. Comm ittee Investigations, Constitu tional Ch anges, the Church of Sweden Act, and the Religious Denomination Act The parliament passed the government’s proposal in December 1995. Because the proposal did not answer several important questions in rela tion to the disest ablishment, more in ves tiga tion s were found to be necessary. The government issued a directive401 that authorized and obligated several Investigatory Committ ees to analyze and propose solutions to specific problems in relat ion to disestablishm ent , including questions of a constitutional, legal and r egulatory nature.402 Enacting laws affecting the Chu rch of Sweden is curren tly possible, th ough th e exist ing Church of Sweden Act provides heightened protection against frivolous regulation of the Church. Other religiou s a ss ocia tion s h ave n o su ch pr otect ion .403 In its directive, the government stated the protect ion against regu la tion of the Church should be transferred to chapter eight of the Constitution, and that it should encompass all religiou s associations, including the Church.404 The constitutional modifica tion s, according to the directive, should be the grounds for a future Church of Sweden Act, which ought to contain the
397. See id. 398. See id. 399. See id. 400. Id. (“Vi kristdemokrater föredrar att medverka till att det steget tas framför att stå och stampa på samma fläck under ytterligare någr a å r. ”) (trans. by author). 401. See Dir. 19 95:162, supra note 116, at 217. 402. See id. (“Konstitutionella och andra rättsliga frågor.”) (trans. by author). 403. See supra notes 231 t hr ough 239 an d accompa nyin g text . 404. See Dir. 1995:162, supra note 116, at 221. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
760 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 special regu la tion s n ecess ary t o main tain the ch aracteristics and identity of the Church of Sweden , a nd a Religiou s Denominat ion Act, governin g all religious associat ions—inclu- ding the Church.405 The instructions said the Chur ch of Sweden Act should contain only a fram ework of regulations pertaining to that which is essentia l t o the ch aracter istics of the Church, such as guidelines for the responsibilities and obligat ions among the local, regional and national levels of the Church. In particular, it should explicitly state that Church members are obligated to pay a Church fee.406 The direct ive em ph asized the im por tance of authorizing the Church to regu la te it s inter nal a ffair s w it hout coupling th is aut hority too closely to the stat e an d without making th e Chur ch of Sweden Act more int ru sive than a simple framework act.407 Mor eove r, t he Religiou s D en omin ation Act must create great er equality between the Church and all other religious ass ocia tion s. Today, a s n oted ea rlier, it is difficu lt for Japanese Buddhism to conduct its religious affairs under its traditional structure, or lack ther eof, a s n o legal for m of organiza tion can accommodate its traditional means of operating.408 One important step towa rd equalit y am ong all denominations is to allow ea ch religiou s a ss ociation to formally and legally con du ct itself according t o it s ess en tia l, r eligiou s characteristics, ther eby a ccommoda tin g r eligiou s a ss ocia tion s for wh ich exist in g lega l for ms of a ss ocia tion are n ot suitable—Japanese Buddhism is but one exam ple of su ch associations.409 Th e dir ect ive st ated that a new legal for m of orga niza tion should be created and labeled the “Religiou s Denominat ion.” Th e gover nmen t sa id in it s d ir ect ive that the guidelines for th is new lega l organiza tion , as proposed by the Investigatory Committ ee of 1994, should be examined, and that the comments submitted by affected organizations and experts during the “remissbehandlings” period should be given due consideration when drafting the Religiou s D en omin ation Act.410
405. See id. 406. See id. 407. See id. 408. See supra notes 125, 390-91 and a ccompan ying te xt. 409. See Dir. 1995:162, supra note 116, at 219. 410. See id. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 761
1. Con stitutional m odifications The Invest igatory Com mit tee of Con stitutional Questions published its findings in 1997411 and suggested that the language of chapter 8, section 6 should read as follows: “Regulations affect in g r eligiou s a ss ocia tion s will be enacted as la ws . In su ch a la w s hall r egu la tion s of t he basic founda tion s of the Church of Sweden as a religious association be promulgat ed.”412 The government’s draft proposal submitted to Kyrkomötet in 1995 stat ed t ha t “Regulat ions a ffecting t he Church of Sweden and all other religious associations will be enacted as laws. Such la ws may r egu la te t he basic founda tion s of the organizat ion and activities of the Church of Sweden.”413 Compa rin g the language of the government’s draft proposal of 1995 and the Committee’s findings, one observes that the second part of section 6 still contains language that grants the parliament authority to enact the Church of Sweden Act. Note, however, the key difference between the new and old versions: the removal of the statement “[T]he Church of Sweden and all other.”414 The elimina tion of this language achieves greater equality among all religious associations through the government’s rejection of constitutionally mandated authority in Kyrkomötet over the Church’s internal organization—a point of great contention during the previous deliberations.415 Furthermore, the Commit tee su ggest ed that section 16 of chapter 8 should be ch anged to rea d: “The Riksdags Act and laws under section 6 of th is chap ter . . . .”416 Such lan gua ge will provide all r eligiou s a ss ocia tion s wit h the h eighten ed pr otect ion granted the Riksdags Act and the Church of Sweden against reckless lawmak ing.417
411. SOU 1997:41, supra note 22. 412. Id. (“Föreskrifter om trossamfund meddelas i la g. I sådan lag skall meddelas föreskrifter om gru nd er na för S ven sk a k yrka n s om tr oss am fun d.”) (t ra ns . by au th or). 413. RegSkr 1995:1, supra note 5, at 47 (“Föreskrifter om Sve ns ka kyrk an och andra trossam fund meddelas gen om lag. I sådan lag får bestämm as grun der na för Svenska ky rk an s or ga ni sa ti on och ver ks am he t. ”) (tr an s. b y a ut hor). 414. Id. “Svenska kyrkan och andra . . . .” Id. (t ra ns . by au th or). 415. See supra notes 214 t hr ough 218 an d accompa nyin g text . 416. SOU 1997:41, supra note 22, at 19 (“Riksdagsordningen sam t la g som av ses i 6 § . . . . ”) (tr an s. b y t hi s a ut hor). 417. See supra notes 63, 232-33 an d accompa nyin g text . D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
762 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
Based on the consideration of the Committ ee of 1997, the government dr afted two propos als, one con tain in g suggest ion s for changes to the Const it ution ,4 18 and the other formulating the Church of Sweden and Religiou s D en omin ation Acts. 419 The new proposal for constitution al changes included sligh t differences when compared to the Committee’s consideration. The government changed the second sentence to read “Regulations of th e ba sic foun da tions of t he Church of Sweden as a religious association shall be promulgated in a law.”420 This change of la ngu age a pp ea rs t o br oaden the powers of the parliament, as it removes th e referen ce to laws regu lat ing religiou s associations in general. In the least, it makes clearer the government’s intention that the Church of Sweden shall be governed by a sepa rate a ct rather than by t he Religiou s Denomination Act. In further agreement with the Committee, however, the government’s proposal added a third sentence to the proposed constitutional modification, which provides that “Section 16, regulatin g th e pr ocess of enacting th e Riksda gs Act, sha ll govern th e pr ocess of enacting, modifying or eliminating such law.”421 Th is cla use will gr ant to all r eligiou s associations the same heightened protection aga in st frivolous regulations that the Church presently enjoys.422
2. The Religious Denomination Act The governmen t’s propos al for a Religiou s Denominat ion Act contain s s eve nteen sh ort section s or ga nized into two m ajor parts. The first part of the Act is labeled “General rules regarding Religious Associations,”423 and provides for the genera l protection of religious freedom. Section 1 provides that “The right to freedom of religion is contained in the Instrument of Government and the European Convention in regards to the
418. See Regerin gens pr oposition [The Governmen t’s Proposal] Prop. 1997/98:49 [hereinafter Pr op. 1 997 /98:49]. 419. See id. 420. Id. (“I lag skall också meddelas föreskrifter om grunderna för Svenska kyrkan som tr oss am fun d.”) (t ra ns . by au th or). 421. Id. (“Vid stiftande, ändring eller upphävande av sådan lag gäl ler vad som sägs i 16 § om st ift an de av ri ks da gso rd ni ng en .”) (tr an s. b y a ut hor). 422. See supra notes 63, 232-33 an d accompa nyin g text . 423. SOU 1997:41, supra note 22, at 24 (“Allmänna bestämm elser om trossamfund m. m. ”) (tr an s. b y a ut hor). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 763 protection of human rights an d ba sic freed oms,”424 an d section 3 states that a person is not obliga ted to join any r eligiou s association.425 Section 2 defines which denominat ions should be eligible to request registered status426 and p rovid es that “[a] den omin ation for purposes of th is law is defined a s an a ssociat ion with t he purpose of performing religious activities, part of which is to hold ser mons.”427 Some concerns were ra ised r egar ding this definit ion of eligible denominations. Arguments have been raised that organizations ma y abu se the la w based on th is br oad language, an d various groups therefore requested that a requir ement of a cer tain number of mem bers or a rela tion to some religious belief or doctrine be included in the law.428 The government rejected this idea, and st at ed tha t t he la w is sufficiently narrow to avoid abuse. Moreover, the requested additional requirements would constit ut e an un rea sona ble burden on those who wished t o register a religious association.429 Th e gover nmen t main tain ed that the purpos e of the crea tion of a new form of ass ocia tion wa s t o allow most existing and many future denominations to obtain the protection afforded by th e registration430 so that adding more and difficult registr at ion requirements would not advance the purpose of the law. The government also emphasized that a registration would not be an endorsem ent of the a ctivity
424. Prop. 1997/98:116, supra note 368, at 5 (“Bestämmelser om r eligionsfrihet finns i re ger ing sfor me n och den eu rop eis ka kon ventionen angående sk ydd för de mä nsk liga rä tt igh et er na och de gr un dlä gga nd e fr ih et er na .”) (tr an s. b y a ut hor). 425. See id. 426. See 1997/98:KU 20, supra note 9, at 9; Pr op. 1997/98:116, supra note 368, at 17. 427. SOU 1997:41, supra note 22, at 24 (“Med trossamfund avses i denn a lag en gemenskap för religiös verksamhet, där det ingår att anordna gudstjänst.”) (tran s. by author). 428. See La g om tr ossa mfu nd : Rege ringen s sk rivels e t ill k yrkom ötet: St at en och trossamfunden —grundläggande frå gor [Relig ious Den omina tion Act: The Government’s Draft Proposal to Kyrkomötet: The State and the Religious Denominations— Foundational Questions], RegSkr 1997:2 (visited Mar. 14, 1999)
764 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 performed by th e registered association s, neither would it be a stamp of appr oval or qu alit y.431 To the contrary, this author believes the underlying motivation for the parliament to propose the Church of Sweden and Religiou s D en omin ation Acts was benign in that it attem pt ed to pr ovid e for a “marketplace of ideas,” religious idea s in part icular, a s advocated by John Stuart Mill.432 In su ch a syst em , ea ch person should have the freedom to propoun d his or her ideas in competit ion with others’, and each individual ultima tely would be free to em br ace a nd follow, or not to follow, those beliefs and ideas which appear best to tha t in dividual. The secon d p art of the Religiou s D en omin ation Act actualizes the new legal form of association called “Registered Denominat ion.”433 The Church of Sweden is automatically given status as a Registered Denomina tion, while all other denominat ions will be requir ed to go through a pr ocess of registration.434 Subordina te levels with in a Registered Denomination ma y also become regist ered a s separa te legal entities, exten ding constit ut ional protection to, for example, each local parish of the Church.435 Th is uniqu e for m of associa tion , sp ecifically tailor ed to deal with religiou s denominations, allows a ll r eligiou s a ss ocia tion s t o become register ed to secure constit utional protection. Sections 7 and 8 set forth the requirements for registra tion. Section 7 provides that “[t]he government, or the state in stitution designated by the government to be in charge of such registration, shall register a denomination upon its request, provided the denomination has or dinances in dicatin g it s p urpos e a nd h ow decision s regarding its interests shall be ma de.”436 This section contains several crucial points. Fir st, the stat e “shall register” a
431. See Pr op. 1997/98:116, supra note 368, at 17. 432. See JOHN STUART MILL, ON LIBERTY 15-52 (Elizabeth Rapaport ed., 1978) (185 9). 433. See Prop. 1997/98:116, supra note 368, a t 5 (“Registrer at tr ossamfund.”) (trans. by a ut hor). 434. See id. 435. See id. 436. SOU 1997:41, supra note 22, at 25 (“Ett trossamfund som har stadgar där det finns bestä mm elser om tr ossam funde ts ä nda må l och om hur beslut i trossamfundets angelägenheter kommer till stånd skall registrer as av reger ingen eller den my nd igh et som re ger in gen bes tä mm er , om tr oss am fun de t b egä r d et .”) (tra ns. by author). D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 765 denominat ion “upon its request .” Thr ough th is langu age, th e government may r ea ch it s goal t o allow all r eligiou s associations th at so wish to become registered. Second, t he conditions for registration are n ot ba sed on any fixe d n umer ica l or structural prerequisite; they are instead based upon whether the association has devised some structure to govern its internal affairs and interests, which most organizations have, so there is nothing in th e lan gua ge th at appears to delibera tely hinder any r eligiou s or ga niza tion from register ing. The proposal did not st ate h ow strict ly t he r equir em en ts of s ect ion 7 should be the inter preted, but if the prior open and rather unbiased prepa ra tory work is any in dicat ion, interpreta tive problems will likely be resolved on behalf of t he r eligiou s associations to effectuate the government’s intentions of allowing greater equality among all denominations. The parliament’s purpose with t he new reforms seems rather benign in that it truly attempts to provide for a more equal standing of all r eligiou s a ss ocia tion s in rela tion to the state and to allow the Church gr ea ter in dependence a nd fr eedom . Once a r eligious association becomes a Registered Denomination, it obtains legal st at us such tha t it ma y acquire legal righ ts an d obligations and be a part y to a lawsuit.437 Under this law, the members of the association will also be protected against personal liability accruing against the register ed denomination to the be nefit of a t hird party.438 Also, the association’s name would be better protected u nder the new law, and it would be eligible t o pr ocure h elp free of charge fr om the governmen t in collectin g a ny ch urch-affiliated fees or payments through income deductions.439
3. The Church of Sweden Act The governm ent would, through the Church of Sweden Act, provide the guidelines and rules that are considered necessary to preserve the Ch urch’s ess en tia l ch aracter istics and historical iden tit y.440 The Church is defined in sections 1 thr ough 3 of this
437. See id. 438. See Pr op. 1997/98:116, supra note 368, at 20. 439. See 1997/98:KU 20, supra note 9, at 4. 440. The gover nm en t s ub mi tt ed a pr oposa l to K yrkom öte t of 19 97 for feedback, in which it indicated the importance for the Church of Sweden to be declared an D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
766 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
Act as a n eva ngelica l-Lu ther an denomin ation , bu ilt upon a democrat ic organizat ion, an d it must be open to all—a so-called “F olkkyrka”; th e Chu rch mu st also maint ain congregations in all parts of Sweden,441 irr espective of the ur ban izat ion of religion .442 Even though the la w decla res the Church’s fundamental religious beliefs, the Church itself would be allowed to deter min e t he det ails of its doctrine and teachings.443 In fact, the government stated in its writin gs to the Church Office in 199 7 t hat “[i]t is of great importance that the law does not lea ve r oom for detailed regulation by the government of doctrine and ot her concerns t hat pertain to the exer cise of t he faith and other internal matters of the Church of Sweden.”444 One important point that is not in clu ded in the Church of Sweden Act pertains to the King’s Church affiliation requiremen t. As port ra yed ea rlier in th is Comment , th e Swedish King has been the hea d of the Chu rch since the Middle Ages and has had to swear allegia nce t o God and t he Church.445 The King is under the same obligation today, although it does not appea r to be compatible with the current transformation of church-state rela tion s. Non et hele ss , t o obt ain br oad s upp ort for the reform s, the governm ent chose not to remove this
evangelical-Lutheran den omina tion to s how continuity from the Church’s earliest hist ory, beginning in th e late Fifteent h Cen tu ry. See Pr op. 1997/98:116, supra note 368, at 28-29. 441. See SOU 1997:41, supra note 22, at 27. The Church of Sweden performs most of th e ma rr iag e a nd bu rial s er vices in S wed en , an d it is t he re fore im por ta nt that everyone feels welcome in the Chur ch. Because Sweden is a spar sely populated country, it is also important tha t such ser vices are made a vailable even to people in rural area s. The Chur ch must ther efore be accessible in all parts of the country. See Lag om Svens ka kyrk an : Reg er in gen s s kr ivel se ti ll k yr kom öte t: S ta te n och trossamfunden—grundläggande frågor [Church of Sweden Act: The Government’s Draft Proposal to Kyrkomötet: The St at e a nd th e Re ligiou s Den omina tion s—F oun da tion al Qu est ions], RegSkr 1997:2, also available (visited Mar. 14, 1999)
703] DISESTABLISHING THE CHURCH OF SWEDEN 767 requirement due to the serious rift between t he opposing sides of the question.446 On th is issue, th e govern ment could have adapted Inger Davidson’s statement that it would rather “cooperate and make possible a move forward rather than tr udge in t he same footsteps for t he next sever al yea rs.”447
V. CONCLUSION After decades of debate and incremental reform, the time has come in Sweden t o reform church-state relat ions. The Church of Sweden’s status as a state church, instituted in the Fifteenth Century, is no longer strongly supported by either the people or the sta te. Societal cha nges durin g the last fifty years have neces sitated a reexamination of th e exis tin g r ela tion s between the Church and the state. The first modern state- sponsored series of investigat ions occurred between 1958 and 1968, and the arguments for a separ ation of the ties between the state a nd Church were m ain ly based on freedom of religion .448 In 1973, Alva Myrdal drafted a proposal based on the decade lon g in ves tiga tion s; Olof Palme, who was the Minister of Eccles ia st ica l Affa ir s, did n ot submit the proposal to the parliament because of an upcom in g elect ion .449 Meanwhile, the Church commenced its own investigations, and the state later became in ter ested in cooperatin g with the Church’s investigators. However, this attempt at reforming church-state rela tion s failed in 1979. A majorit y supp orted a motion to st op the suggested reform s, main ly because of an apprehension regarding the proposition that the Church should no longer have the right to collect a Church tax from members and nonmembers.450 Nonetheless, in 1995 the parliament agreed to pass a proposal submitt ed by the governm ent,451 which suggested reforms very similar to the recommendations of 1979.452 The parliament’s and Kyr komötet ’s reve rsa l of position twenty years later ma y be linked to changes in society and in
446. See Const itu tional Regu lat ion, RegS kr 1997:2, supra note 444. 447. See supra note 400. 448. See Gibson , supra note 123. 449. See id. 450. See id. 451. See generally RegSk r 199 5:1, supra note 5. 452. See Gibson , supra note 123. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
768 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 the attitu de of the Church. Whatever the cause, a transformation of the relations between the state and Church will occur by Jan ua ry 1, 2000. This will put t he Church of Sweden in a m ore equal position to all other denominations operating in Sweden . H owever , one ca nnot conclude that the Church of Sweden will be come on e among many churches. There will be a special law governing the Church, and the Church will automatically obtain status as a Registered Denomination, wherea s all other denominat ions m ust prove they fulfill the requirem ents for registra tion. The King will still be the head of the Church a nd mu st swea r a llegian ce to its faith, and the King’s children will be under the same requirement. It is also important to note the fact that the Church has, through out the h istory of Sweden, be en an in tegr al part of bot h society and the state, and this will n ot ea sily be eradicated from the culture, society or the individual Swedish person’s mind. The Church is in many ways the source for modern Swedish society and state, and as Edmund Burke observed: We ha ve r ea l he ar ts of flesh a nd blood beating in our bosoms.
We fear God; w e look up w ith aw e t o kin gs, w ith affection to parliam ents, with duty to magistrates, with reverence to priests, and with respect to n obility . Wh y? Beca use wh en su ch ideas are brought before our minds, it is natura l to be so affected.453
It is ofte n as d ifficult to let go of the past . On e n eed n ot and should not forget th e pa st; rath er, one should use the past as a stepping stone toward something great er, something richer and fuller. In a n at ion’s development , we may call it social progress. The proposed disestablishm ent will not achieve a full sepa ra tion of the church and state, but it is an important and necessary step in the direction of religious freedom in Sweden. History sh ows that the r ise of t he Church of Sweden came about as an evolution, ra th er t ha n t hr ough a revolution. Since the first glimpse of religious freedom sparkled in th e Seventeenth Century, many steps h ave been taken towards sever ing the t ies between the state a nd ch urch. Th e proposed
453. BURKE, supra note 13, a t 98. D:\ 1999-2\ FINAL\ STE-FIN.WPD Ja n. 8, 2001
703] DISESTABLISHING THE CHURCH OF SWEDEN 769 disestablishm ent of the year two thousa nd will be yet another st ep in this evolution . E. Kenneth S tegeby