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Volume 1999 | Issue 1 Article 3
3-1-1999 Proselytism and the Freedom to Change Religion in International Human Rights Law Tad Stahnke
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Recommended Citation Tad Stahnke, Proselytism and the Freedom to Change Religion in International Human Rights Law, 1999 BYU L. Rev. 251 (1999). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1999/iss1/3
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Proselyt ism and t he F reedom to Ch ange Religion in International Human Rights Law
Tad Stahnke*
I. Intr oduction ...... 252
II. Preliminary Issu es ...... 254 A. The Definit ion of Proselyt ism ...... 254 B. Religious Views on Pr oselytism ...... 256 C. Restrictions on P roselyt ism ...... 262 1. I ndirect restrict ion s ...... 262 2. Discrim ina tion in restrictions on proselyt ism .. 266
III. Proselytism an d Int ernational Human Rights Law .. 268
IV. The Rights and Interests Implicated by Restrictions on Proselytism ...... 274 A. Th e Righ ts of t he Source ...... 275 1. The freedom to manifest religion or belief ..... 275 2. The r igh t to freedom of exp ression ...... 278 3. Conclu sion ...... 279 B. The Rights of the Target ...... 280 1. The fr eedom to change r eligion ...... 280 2. The fr eedom to receive in formation ...... 285 3. The fr eedom to have or main tain a religion .... 286
* Lecturer, Columbia Law School; Associate, Cleary, Gottlieb, Steen & Hamilton; J .D., Colu mb ia La w Sch ool, 19 95. Mu ch of the work on th is art icle was done in conjunction with the Religion, Human Rights, an d Re ligiou s F re edom Program, a program of the Columbia Law School and the Cen te r for th e St ud y of Human Rights. The au thor would like to tha nk The Pew Char itable Trusts for their support of his work a nd t he Colu mbia progr am , as well a s Dean Micha el Youn g, Professor Louis H enk in a nd D r. J . Pa ul Ma rt in for t heir tr ust , encoura geme nt , and inspiration. The a ut hor wou ld also like to th an k Wen dy Rhein for her invalua ble re sear ch and editorial assistance, and the entire st aff a t t he Cen te r for th e St ud y of Human Right s for their ass ista nce. Thi s a rt icle is ded icat ed t o all th ose w ho, i n good faith and consiste nt with th e pr inciples of inter na tional h um an righ ts la w, ar e seeking to resolve th e conflicts th at ar ise over proselyt ism a nd t he fre edom t o chan ge religion.
251 D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
252 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
4. Fr eedom from in jury to religious feelings ..... 289 5. The r igh t of person s belon gin g t o religiou s minorities to maintain their religious traditions and identity ...... 300 C. The Interests of the State ...... 305 1. Protection of a dominant religious tradition or political ideology ...... 305 a. Ma laysia ...... 307 b. The People’s Republic of China...... 310 c. Ukraine...... 312 d. Con clu sion...... 315 2. The preservat ion of public order ...... 317 3. P rotect ion of consu mer s in the r eligiou s marketplace ...... 321 a. Th e a va ila bilit y of in formation ...... 322 b. Fraud...... 324
V. Important Factors in Drawing the Line Between Proper and Improper Proselytism ...... 326 A. Th e Character istics of the Source ...... 327 1. Coercive sources ...... 327 2. Foreign sources ...... 330 B. The Characteristics of the Target ...... 332 C. Wher e t he Act ion Ta kes Pla ce ...... 334 D. T he N ature of t he Act ion ...... 335
VI. Conclu sion ...... 338
I. INTRODUCTION Justice Frankfurter of the United States Supreme Cou rt once wrote: “Adjustment of the inevita ble conflict between free speech an d oth er in ter ests is a problem as per sist ent as it is 1 per plexin g.” Pr oselytism is one form of expression that has resulted in inevitable, a nd s omet im es fier ce, con flict . Bu t on Justice Frankfurter’s terms, proselytism—whether it is viewed as an exe rcise of fr ee exp ression or a manifes tation of religiou s belief—is not in itself the problem. Th e problem lies in finding
1. Niemotko v. Maryland, 340 U.S. 268, 275 (1951) (Frankfurter, J., con cur ri ng ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 253 the proper balance between the freedom to proselytize and the multitude of righ ts, du ties , a nd inter ests of r eligiou s groups , individuals, and the state that may conflict with that freedom. The difficulty of this “adjustment” is deepened by a number of factors. Persons who proselytize, whether as a matter of con- science or religiou s belief, may adhere to their entitlement to do so with great strength . Likewise, the targets of proselytism may hold their religiou s beliefs (or their sense of pr iva cy in those beliefs) with equal strength; at tem pts to persua de them in mat- ters of religiou s belief m ay lead t o in jury t o religiou s feelings. Fin ally, religious groups, desir ing to preserve or expa nd th eir numbers, ma y have strong views as to the term s on wh ich per- sons may change t heir religiou s identit y or affiliation . This may influence the gr oups’ view on proselytism. With in th e framework of int ern at ional human rights law, states are responsible for sorting out these, and other, compet- ing int erests in formulating policies t hat adequ ately pr otect the rights of all involved. But states themselves exhibit different views on the necessity of regu la tin g, or the wisdom of influ en c- ing, religiou s ch oices of their people. I n som e societies a chan ge in religious beliefs may have far-reaching social ramifica tion s, whereas in others, such a change will have only private impact. Inevitably, differ en t st ate practices will be a refle ction of more genera l societal considerations. It appears that the extent to which other righ ts an d interests give way to the freedom to proselytize is indicative of the extent to which a society views itself as hospita ble to chan ge in th e religious beliefs of its mem- bers, and con siders a n open (and con sequ en tly con frontational) excha nge of differ en t religiou s view points t o be acceptable , or even desirable. Given all of the variables at play, it is very difficult in th e abstract to pos e ge ner al solu tion s to the conflicts raised by pros- elytism. As Justice Frankfurter noted: “Court[s] can only hope to set limit s and point th e way. It falls t o the lot of legislative bodies and a dm in istrative officia ls to fin d p ractica l solu tion s within the frame of [court] decisions.”2 The same practical limi- tations constrain the application of international human rights standards.
2. Id. at 275-76. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The goal of this article is to explore in a variety of polit ica l and religiou s con text s the different rights and interests at issue when conflict arises over proselytism. States must consider these righ ts a nd inter ests in order to establish a decision-mak- ing framework consistent with the principles of international human righ ts law. T his article concludes that certain state action restr icting proselyt ism, eith er by employing discrimin a- tory methods or in furtherance of interests not recognized in international instruments, is in consist en t wit h in ter nation al standards. The validit y of other r estrictions will depend upon a variety of circumstantial variables primarily relating to the potential for coercion. These varia bles can not be sort ed out in any consistent way without resorting to the particulars of each case. Part II of this article addresses important preliminary is- sues including (a) the definition of proselytism as employed here, (b) a br ief over view of t he views of variou s r eligion s on proselytism, and (c) a discu ss ion of the differ en t forms that restrictions on proselytism can take and the discrimination that may ar ise from su ch rest rictions. P art III reviews the provi- sions in international human rights instruments most relevant to the issue of proselytism. These provisions pert ain to the righ t to freedom of religion, th e right to freedom of expression, the righ t to be free from discr im in ation on the basis of religion, and the rights of religious minorities to profess and practice their religion . Pa rt IV outlin es in detail the competing rights and interests that arise in conflicts over the freedom to engage in proselytism. These rights a nd interests include: (1) the rights of the sour ce of the proselytism t o manifest their religion and engage in free exp ression; (2) the rights of the target of the proselytism to cha nge th eir religion, to receive in forma tion, to be protected from injury to th eir r eligious feelings and to main - tain th eir religious identity; and (3) the interests of the State to protect th e domina nt religious t ra dition or official ideology an d to preser ve public order. Part V clarifies the different factors states have employed to draw the line between “proper” and “improper” pr oselyt ism. F our pr im ary fa ctors are identified: the characteristics of the source, the characteristics of the target, where th e pr oselytism t ak es place, and th e na tu re of the ex- change between the source and the target. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 255
II. PRE LIM IN ARY ISSUES
A. The Definition of Proselytism The term “proselytism” has been used so far with out defini- tion . In many contexts, it has had a decidedly n ega tive connota- tion . Consider this definition of “proselyte” contained in a Cath- olic diction ary: “A Gentile converted to Judaism, hence any convert from one r eligion to an other. To proselytize, meanin g to make converts, is generally used in a pejorative sense, either because one’s own religion is the loser or as implying unscrupu- lous m ethods . . . .”3 A more complete elabora tion of the nega tive mean ing t ha t has been ascribed to proselytism is found in a study document entitled Comm on Witness and Proselytism, prepared in 1970 by a Joint Theological Commission between th e Roman Ca th olic Church and the World Council of Churches.4 This document defines the term “Christian witness” as “the continuous act by which a Christian or a Christian Community proclaims God’s acts in history and seeks to reveal Christ as the true light which shines for ever y ma n.”5 In contrast, th is document de- scribes proselytism as a perversion of Christian witness: Here is meant improper attitu des and behaviour in the
practice of Christian witness. Proselytism embraces wha tever violates the right of the hum an person, Christian or non-Chris- tian, to be free fr om ext er nal coer cion in re ligiou s m at te rs , or whatever, in th e p rocla m at ion of th e G osp el, d oes not con form to the ways God dra ws free m en to h im self in respon se t o his calls t o ser ve in spir it a nd in t ru th .6 As used in this article, “pr oselyt ism” means expressive con - duct undertaken with t he pur pose of trying to change th e reli- giou s beliefs, affiliation , or identity of anoth er. Th e per son initi- ating the con du ct is the “sou rce,” and t he per son on the receiv- ing en d is t he “target.” This definition of pr oselyt ism en compa ss es sever al im por - tant concepts. First, it avoids t he n otion of per se im pr oper con-
3. A CATHOLIC DICTIONARY 408 (Don al d At tw at er ed ., 2d r ev. ed . 19 54). 4. This document is reprin ted in 23 E CUM EN ICAL REV. 9 (19 71) [hereinafter Com m on Witness and Proselytism]. 5. Id. ¶ 5. 6. Id. ¶ 8. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
256 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 duct; wheth er proselyt ism is improper u ltimately depends on a variety of factors t o be discu ss ed below. The definition also stresses that proselytism is intentional conduct, un dertaken with a particular goal in view. For this reason, the term “proselytization” is avoided, as that term can suggest a process, rather than a purposefu l h uman action . F in ally, t his defin it ion implies th at th e sour ce need not ha ve religious beliefs of their own. Thu s, pr oselytism includes attempts to persuade the targets to aban don t heir curren t r eligious beliefs or affiliation without necessar ily replacing them with t hose of the source.
B. Religious Views on Proselytism Religion s hold a wide va riety of views on the propriety of proselytism. While one religion may require its adherents to attempt to bring others to the faith, such activity may be prohibited or even impossible for another.7 Other religions adhere to the ent ire r an ge of views in between . Fu rt herm ore, a religion may have a different view on bein g t he source of
7. The following statement by t he Eva ngelical Luth eran Church in America is an example of a manda tory call to engage in proselytism, here termed “evan gelistic outreach”: In Ch ri st , God cal ls t he chu rch to share t he gospel in word and deed, to proclaim the Good News of Jesus Christ, and t o witness to God as Creator, Redeem er, a nd San ctifier. “Go . . . and m ake disciples of all nations, baptizing them in t he na me of th e F at he r a nd of th e Son an d of the Holy Spir it, an d tea ching t hem to obey everyt hin g th at I ha ve commanded you.” (Matthew 28:19,20) Answer ing the call of God to evangelistic outreach where Christ is not known, or not fully known, requires people to bear the message. The missionary calling is bot h gen era l an d specific: all Christians are called by God to m iss ion w he re ver th ey a re ; som e a re ad dit iona lly ca lled by a local body of Chr ist ian s t o missi on in an oth er locat ion. Divis ion of Global Mission, Evangelical Lutheran Chur ch in Amer ica, The Role of the Missionary in the Global Mi ssi on of th e Ev an gelica l L ut her an Ch ur ch i n A m erica (visited Nov. 19, 1998)
251] PROSELYTISM IN HUMAN RIGH TS LAW 257 proselytism, as opposed to being the target.8 Likewise, views on proselytism ma y var y depending upon the r eligiou s identit y of the target. For instance, a distinction may be drawn between targeting those of a differ en t denomin ation within the same religion , and those of a different religion altogether. Given these divergent views, pr oselytism can raise problems of an in trareligiou s nature, a s w ell as p roble ms of inter religiou s relations and unity. The intricacies of theological disputes and intra or int erreligious relat ions are outside of the scope of this study.9 They are, however, relevant, as religious views inevit ably influence state policies. One or two brief examples will help to illustrate the pertinent points to be made here. A significan t featu re of some r eligions is th e belief th at th eir path to the t ru th is an exclusive on e. Inevitably, these groups are confronted wit h the reality that other people have different religiou s beliefs, or no religiou s beliefs at all. Su ch gr oups may respond in va riou s w ays. At the ext rem e, t his confrontation has contributed to war, forced conver sion, a nd fier ce r eligiou s persecut ion throughout history. This type of response has been repudiated by most religions.10 Instead, many religious groups direct activities at convincing targets to change t heir religiou s beliefs by choice.
8. This posi tion ma y be d irect ly r ela te d t o a r eligi on’s view on con ver sion : [W]hile man y religions or beliefs welcome—and in some cas es even encourage—the conver sion of individu als belon ging to oth er fait hs, t hey a re reluctant to admit the conversion of individuals of their own faith; apostasy is viewed wit h disfa vour by t hem and often is pr ohib ite d by t he ir re ligiou s law or discouraged by social ostracism. ARCOT KRISHNASWAMI, STUDY OF DISCRIMINATION IN THE MATTER OF RELIGIOUS RIGHTS AND PRACTICES, U.N. Doc. E/CN.4/Sub . 2/2 00/R ev. 1, U .N . Sa les No. 60. XIV.2 (196 0), [here inafter KRISHNASWAMI STUDY], reprinted in RELIGION AND HUMAN RIGHTS: BASIC DOCUMEN TS 2, 2 2 (Ta d S ta hn ke & J . P au l Ma rt in ed s., 199 8). 9. For a good review of views on proselytism as ar ticulated in document s issued by Cat holic, Prot esta nt , and Ort hodox Chr istia n church bodies and associations, see Joel A. Nichols, Mission, Evangelism, and Proselytism in Christianity: Mainline Con cepti ons as R eflected in Ch ur ch D ocuments, 12 EMORY INT’L. L. REV. 563 (199 8). 10. For exa mp le, t he Ca th olic Ch ur ch e xpr ess ed t he followin g at th e Se cond Vat ica n Cou ncil re gar din g rela tion s with non -Chr ist ian s: “The Church therefore has this exhortat ion for her sons: prudent ly and lovingly, through dialogue and colla bor at ion with th e followers of other religions , and in wit ness of Christian faith and life, acknowledge, preserve, an d prom ote th e spir itu al and moral goods found among these men , as well as the values in their society and culture.” Declarati on on the Rel ati ons hi p of t he C hu rch to N on-Ch ris tia n R eligi ons , in THE DOCUMENTS OF VATICAN II 660, 662-63 (Walter M. Abbott & the Very Reverend Monsignor Joseph Gallagher ed s., 196 6) (foot note om it te d). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
258 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
In this context, some religions have developed theological principles or ethical rules regarding the appropriate treatment of those wh o do n ot sh are t heir religiou s beliefs. If a religiou s gr oup is dominant in a state, that religion’s principles or rules may in flu en ce official state policy concerning the treatment of those outside the dominant tradition. Laws concerning proselytism between such groups must t her efore be viewed in the context of these broader religious views. For exa mple, Abdu lla hi Ah med An-Na’im, a sch ola r of traditional Islamic law, has summarized the applicable r ules in this fashion: (1) If a person chooses to become a Muslim, or is born and
raised as a M uslim , th en he or sh e w ill h av e fu ll righ ts of citizen sh ip in an Islamic state . . . . However, once a Mu slim or officially clas sified a s such, a pe rs on will b e su bject to t he death penalty if he or s he be com es an ap ost at e, t hat is, on e wh o pe rs ist s in re pu dia tin g h is or her fait h in Islam . . . . (2) If a p er son choose s to be or rem ain a C hr istian , Jew, or believer in an oth er scr ipt ura l re ligion , as defined by Shari’a — one of ahl al-kitab, th e P eople of the Book or be liever s in divin e scripture who are called dhimmis — h e or sh e will suffer certain limita tion s of righ ts as a s ub ject of an I sla m ic state. [D]himmis are not supposed to enjoy complete legal equality with Mu slims. (3) If a p er son is n eithe r a Mu slim nor on e of ahl al-kitab, as defined by Shari’a, then that person is deemed to be an unbeliever (kh afir or m ush rik). An u nb elieve r is not perm itted to reside perm anen tly, or even temporarily according to stricter inte rp re ta tion s, in pe ace as a fr ee pe rs on within the territory of an Islam ic st at e ex cept u nde r s pe cial pe rm ission for safe conduct (aman). In theory, unbelievers should be offer ed the choice of adopting Islam, and if they reject it they may eith er be k illed in ba tt le, en sla ved , or r an som ed if captured.11
The tr aditiona l Islamic view on proselyt ism is clear ly consistent with the above scheme: proselytism t ar geted at Mu slims is prohibited, whereas aggressive proselytism by Muslims directed at nonbelievers is demanded. As certain modern States
11. Abdullahi Ahmed An-N a’im, Islamic Foundations of Religious Human Rights, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERS PE CTIVE : RELIGIOUS PERSPECTIVES 352 (J ohn Wit te J r. & J ohan D. v an de r Vy ver ed s., 199 6). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 259 purport to app ly p rin ciples followin g or ba sed on tradition al Isla mic law, it is clear that those States cannot be indifferent to the religious choices of its people. Proselytism within a religion can pr ecip it ate con flict as intense as t hat between religion s. It is ther efor e a sign ifica nt issue with regard to ecumenism, or th e path of Christia n cooperation and unity. Churches that identify themselves as Chr istian have different views on the question of whether unity is possible or desirable. As a result, they may have different standards on the question of proselytism as between Christians. For exam ple, if a church refuses t o recognize that “other churches also . . . provide a ccess to salva tion in Ch rist,”12 then that church will make no distinction between its proselytism directed at other Christian s a nd p roselyt ism direct ed at non- Christians. However , if a church considers t hat at lea st som e other churches provide access t o sa lva tion , a dist in ction may be made between proselytism towards these Christians and proselytism directed at non-Christians. It is this la tter dist in ction that underlies the standards on proselytism expressed by the World Council of Churches and the Catholic Church in Comm on Witness and Proselytism.13 Recalling the definitions of Christian witness and proselytism contained in that document and related above, Christians are reminded that “[t]he Lord has called all his disciples to be witnesses to him and his Gospel, to the ends of the eart h.”14 This wit ness, wh et her direct ed at other Ch ristia ns or non- Christians, “should be completely conformed to the spirit of the Gospel, especially by r espectin g t he ot her ’s righ t to religiou s freedom.”15 A number of requirements are stated in this regard, including the a void ance of “ph ysica l coer cion , moral constraint or psychological pressur e,”16 the “offer of temporal or material benefits,”17 th e “exploitation of . . . need [and] weak ness,”18 and
12. Com m on Witness and Proselytism, supra note 4, ¶ 11. 13. Id. 14. Id. ¶ 1. 15. Id. ¶ 25. 16. Id. ¶ 27(a ). 17. Id. ¶ 27(b ). 18. Id. ¶ 27(c). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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“unjust or uncharit able refer en ce t o the be liefs or practices of other religious comm un ities.”19 Additional consideration s a pp ly t o wit ness by m em bers of one Christian church to those of another. Under these circumstances, wit ness “sh ould be complet ely concerned to do nothing which could compr omise t he progr ess of ecumen ica l dialogue and action,”20 and should “be concerned in fosterin g whatever can restore or st ren gthen bet ween [Ch ristia ns] t he bonds of true brotherhood.”21 In light of these principles, appropria te action towards other Christians is suggested as follows: Mis sion ar y action sh ou ld b e ca rr ied ou t in an ecu m en ical
spir it wh ich ta ke s in to consider ation th e p rior ity of t h e announcement of th e G osp el t o non-Ch ris tia ns. The m issionar y effort of one Church in an area or milieu where anoth er Chu rch is already at work depends on an honest answ er to the question: what is the quality of th e Ch ristia n message proclaimed by the Chu rch a lready at work, and in what spir it is it bein g pr oclaimed and lived? Here frank dis cus sion between the Churches concerned would be high ly desirable, in order to have a clear understanding of each other’s missionary and ecumenical con viction s, and wit h t he hope that it would h elp to d et er m ine t he p ossibilit ies of coopera tion , of com m on witn es s, of fr ate rn al assistance, or of complete withdrawal. In the same mann er and spir it the re lation s between minority and ma jority Churches should be considered.22
Although some groups may distinguish between opposing proselytism as a m oral or ethical matter and calling on the state to prohibit it, states—democratic and otherwise—nonetheless ten d t o respon d t o religiou s view s on proselytism.23 These views, particularly those of the dominant
19. Id. ¶ 27(f ). 20. Id. ¶ 25. 21. Id. ¶ 28. 22. Id. ¶ 28(b) (footnote omitt ed). Even grea ter restr ictions a re suggested between the Or thodox churche s and the Ca tholic Church, whereby all proselytism, as it is defined in th is art icle, is prohibited: “Whatever has bee n th e past , the Ca tholic Church an d t he Or th odox Ch ur ch a re det er mi ne d t o re ject not only proselytism but also th e intent ion even to dr aw t he fa ith ful of one Ch ur ch to a nother .” Id. ¶ 28(e )(iii). 23. Som e groups that oppose proselytism in any form likewise oppose any appeal to th e civil aut horit ies to silen ce other group s th at enga ge in it. See COMMISSION ON D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 261 religiou s group, may influence state policy. In order to adequat ely protect the rights of all, restrictions on proselytism must be given careful att ention to determine if they are based solely on the consideration of religious views. Given the complexity in distin guishin g between religious an d secular consideration s, this analysis may be difficult; but, it is no less essentia l for its difficulty. As im por tant as r eligiou s beliefs are to the individuals that hold them and to the societies of which they are a part, considerations beyond those of a strictly religious character must gu ide a st ate’s app roach to proselytism. While international human rights instr uments recognize the right to have religiou s beliefs and t he fr eedom to act on them, these instruments also confirm that states can limit this freedom to act in order to ensure ot her specified interests.24 Therefore, even th e strongest religious impera tive t o engage in proselytism, such as a requirem ent to bring a s many to the “true” religion as possible, can not prevail over a valid lim it ation . This is th e case even though those who believe they are entitled to engage in pr oselytism ma y be burdened, perhaps sever ely, in the m anifes tation of th eir religiou s beliefs. Conver sely, a str ictly religious basis for restricting proselytism is not by itself a valid limita tion on the activity. Thus, a religiou s gr oup’s ass essm en t of “the qualit y of the Chr istian message”25 of a Church or a determination that proselytism weakens “the bonds of true [Christian] brotherhood”26 would not give r ise t o a va lid lim it ation on proselytism. As a result of this pr in ciple, mem bers of s ome religion s may be frustr ated in the attempt to enforce what they
FAITH AND UNITY, MIDDLE EAST COUNCIL OF CHURCHES, PROSELYTISM, SECTS, AND PASTO RAL CHALLENGES: A STU DY DOCUMENT ¶¶ 61-64 (1989) (prepar ed for th e Middle East Council of Churches’ Gene ra l Assem bly, J uly 198 9), cited in David A. Kerr, Mi ssi on and Proselytism: A Middle East Perspective, 20 INT’L BULL. MISS ION ARY RES. 12, 18 (1996) (citing id.). 24. These in te re st s a re th e p rote cti on of “public safety, order, h ealt h, or m orals or th e fu nd am en ta l ri ghts an d fr eed oms of oth ers.” Inter na tiona l Covenan t on Civil and Political R ight s, opened for signature Dec. 19, 1966, art. 18(3), 999 U.N.T.S. 171, 6 I.L.M. 36 8, 38 3 [he re ina fte r I CCP R]; see also The Europ ea n C onve nt ion for th e Pr ote ction of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 9(2), 312 U.N.T.S. 221, repr in ted in INTE RNAT ION AL LAW: SELECTED DOCUMEN TS at 464, 467-68 (Barry E. Ca rt er & P hi llip R. T ri mb le e ds ., 1995 ) [he re in aft er Eu rope an Con ven ti on]. 25. Com m on Witness and Proselytism, supra note 4, ¶ 28(b ). 26. Id. ¶ 28. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
262 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 believe to be appropriate standards of behavior. But by employing th ese prin ciples, in tern at ional hu ma n r ight s standards are directed at achieving a peaceful balance between the int erests of those holding different r eligious views on proselytism, as well as the interests of those holding no religious beliefs.27
C. Restrictions on Proselytism States can restrict proselytism in a variety of ways: directly or in direct ly; inten tion ally or unintentionally. Before exam ining the various rights and interests that may determine t he propriety of a restrict ion on proselytism, it is necessar y to consider certain issues particular to indirect restrictions on proselytism and t he m anner in wh ich restrict ion s on proselytism may lead t o dis crim ination on t he ba sis of religion or belief.
1. In direct restrictions In addition to laws tha t directly regulat e proselytism,28 there are a myriad of laws, ru les an d regula tions tha t in directly restrict proselytism. For instance, t he fa ilu re of a religiou s gr oup to be r egist ered wit h, or be recognized by, the state as a prerequisite to functioning as an organizational entity can result in a restriction on proselytism. Moreover, activity t ha t can be character ized a s p roselyt ism may t ake differ en t forms, such as r eligiou s d iscuss ions; prea ching; tea ching; the publication, dist ribu tion or sa le of printed and electronic works; broadcasting; solicit ation of funds ; or pr ovis ion of humanitarian or socia l ser vices. All of these actions can be proselytism depending upon the int ent with wh ich they are undertaken. Therefore, regulation of any of these activities may intentionally or unintentionally restrict proselytism.
27. A certa in measure of moderation on th e part of religious groups is required to make th is scheme work. A religious view that does not accept that under any circumsta nces other int erests can be paramount to the freedom to proselytize is likely to give rise to consistent conflict and is not amen able to a p roce ss of confli ct resolution. On t he other ha nd, a religious view th at no form of prose lytism could ever be val id ca n le ad to s eve re re st riction s on , an d ev en per secu tion of, other religious groups. 28. See infra Part IV. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Further, laws that do not have as their apparent purpose the prohibition of proselytism can neverth eless be employed in furtherance of that goal. For exam ple, governmen t officials ma y determine which religious views can be dissemina ted thr ough the discretionary grant or denia l of per mit s r equir ed for activities related to proselytism (su ch as distr ibut ing literature); or, officials can suppress such activity through means such as a tax or fee. These types of restrictions are manifest in the experience of the Jehovah’s Witnesses in the United Stat es dur ing t he first ha lf of the twentieth cent ur y. Between 1937 and 1953, t he U nit ed St ates Su pr em e Court examined a number of laws and regulations—mostly loca l municipal rules—that indirectly affected proselytism. A table of these cases is provided at the end of this article. These cases prima rily involved Jehovah’s Wit nesses, wh o at that time enga ged in a pu blic and ver y confrontation al style of proselytism that em ployed st rong n ega tive views abou t the government and other religious groups, particularly t he Cat holic Church.29 For this and other reasons—including their steadfast refusal to salut e th e flag or to serve in the armed forces—the Witnesses were extr emely unpopular . Substan tia l pressure was put on local authorities to suppress th eir activities or otherwise remove them from pu blic places.30 The Witnesses, however, were persistent in their proselytizing activities, in their willingness to disobey the law as applied to them and be arrested for it, an d in th eir efforts to cha llenge th eir convictions as improper restrictions on the freedoms of free exercise of religion, speech, and the press guaranteed by the F ir st Amen dm en t to the U nit ed St ates Con st it ution .31
29. See Dougla s v. Cit y of Jea net te, 31 9 U.S. 1 57, 170-74 (1943) (J acks on, J ., dis se nt in g). 30. See id. at 181 (Ja ckson, J ., dissen tin g) (“[L]ocal authorities caught between offended householders and th e drive of the Witnesses, have been hard put t o keep the pea ce of th eir com mu ni ti es .”). 31. The First Amendment provides that “Congress shall ma ke no law respecting an establishment of religion, or pr ohibitin g th e free exercise t her eof; or abridgin g th e fre edom of speech, or of the press; or the right of the people peaceably to assemble, and to pet ition t he Gover nm ent for a redre ss of grievances.” U.S. CONST. amend. I. For a brief description of the Witnesses’ persistence, see Table of United States Supreme Court Cases Concerning the Regulation of Proselytism (1937-1953) at the end of this ar ticle. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The regulations at issue in the majority of these cases were similar in that they required the procurement of permission or a license (sometimes alon g with pa ym en t of a fee) from the loca l government authorit ies in order to pu rsu e a va riet y of activities.32 Many of these activities were directly expressive, such as dist ribut ing literature, soliciting contribution s for charitable causes, h olding out door meetings, having processions, or using sound a mplification devices. Other activities could be described in a more commercial vein, such as selling or solicit in g or ders for books or other merchandise, or carrying on a t ra de. Some of the r egula tions specifically targeted those who went door-to-door to conduct these activities, wherea s oth ers restr icted t he a ctivity in public places, such as on the street or in a park.33 The Supreme Court found two prim ar y problems in the course of invalidating these regulations as contrary to the constitutional gua ra nt ees of freedom of religion, of speech, a nd of the press. The first problem was th e absen ce of objective standards to guide decision m ak ing in th e gra nting of permits and licenses. In some cases, ther e were no st an dards at a ll.34 This left local officials with u nfetter ed discretion in t he application of the rules. In other cases, the standards were overly va gu e or subject ive; one ch allenged regu la tion , for example, required a deter min ation of wh et her the ca use for which a person was soliciting was a “religious” one, an d whether it was “free from fraud.”35 These subjective standards lik ewise le ft to the discret ion of local officials which ideas could be disseminat ed and which could not. The types of discretion identified in these cases could be em ployed to intimidate, harass and even silen ce t hose en ga gin g in exp ression, including proselytism, simply because t he local population or government found their message to be objectionable. The Court was also troubled by the fact that there were other, less restrictive,
32. See Table of United Stat es S up rem e Court C ases Con cern in g th e Reg ul ati on of Proselytism (1937-1953) at t he end of this ar ticle. 33. For an overview of these regulations, see id. 34. S ee, e.g., Kun z v. New York, 340 U.S. 290 (1951) (involving a Baptist minister); Niemotk o v. Maryland, 340 U.S.268 (1951); Saia v. New York, 334 U.S. 558 (194 8); Mar sh v. Alaba ma , 326 U.S. 501 (1946); Tucker v. Te xas, 326 U. S. 5 17 (1 946 ); Largent v. Texas, 318 U.S. 418 (1943); Lovell v. City of Griffin, 303 U.S. 444 (193 8). 35. Schneider v. New J ersey, 308 U.S. 14 7, 157-58 (1939) (quoting ord ina nce of Irvington, Ne w J er se y). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 265 means to prevent the dangers, such as fraud, at which these subjective standards were directed.36 The second p roble m arose in situation s where a license fee was charged for en gagin g in a ctivities, such as selling or otherwise distributing literature, that encompassed the dissemination of ideas an d opinions, in cludin g proselytism. No discretion was placed in the hands of the administrating officials in the a pp lica tion of these revenu e-raising arrangements.37 Fu rt her more, th ese a rr an gement s fell clearly with in the state’s taxation power. Nevertheless, the Supr eme Court prohibited th eir a pplication to proselytism because it believed that the danger they posed to the freedoms protect ed by the First Amendment was too great to be tolerated: No one could doubt that ta xation which may be freely laid
upon act ivit ies not within the protection of the Bill of Rights could, when ap plie d t o th e d issem inat ion of ideas, be made the ready instru men t for destruction of that right. Few would deny that a licen se ta x la id s pe cifically on th e p riv ilege of diss em ina tin g ide as wou ld in fringe the right of free speech. For one reason among others, if th e State may tax the privilege it may fix the rate of tax and, through the tax, control or s upp re ss th e a ctivity wh ich it t ax es...... The con st itu tion al protect ion of th e Bill of R igh ts is n ot to be evaded by classifying with business callin gs an activity wh ose sole pu rp ose is t he diss em ina tion of idea s, and ta xing it as business callings are taxed. . . . . The First Amendment is not confined to safeguardin g freedom of speech and freedom of religion against discr im inat ory attempts to wipe them out. On the contrary, the Constitution, by virtue of the First and the F ourteenth Amendmen ts, has put those freedoms in a preferred pos ition . Th eir commands are not restricted to cases where the protected privilege is sought out for attack. They extend at least to every form of taxa tion wh ich, beca use it is a con dit ion
36. S ee, e.g., Schneider, 308 U.S. at 164. 37. The Court was deeply divided on the issue of licensing fees, and the mat ter was only set tled afte r t he Cou rt reve rse d its elf an d overr uled an ear lier d ecision. See Mu rd ock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. Opelika , 316 U.S. 584 (1942) [hereinafter Jones I], va cat ed, 319 U.S. 103 (1943) [her eina fter Jones II]; see also Follett v. T own of McCor mi ck, 321 U.S. 573 (1944) (holding license tax unconstitutional as ap pli ed to a pr ofes siona l m in ist er ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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of the exercise of the privilege, is capable of being used to cont rol or su pp re ss it .38
These cases r epresen t an im pr essive b ody of decision s giving concrete form to the human rights of unpopular minorities in the face of both government and popular opp osition . Because the r egu la tion s in qu estion gave too much power to public officials to impinge on the fr eedom s of r eligion , speech, an d the press, the Suprem e Court in valida ted th eir application to proselytism even t hough they could h ave va lidly rest ricted other activit ies in furtherance of the normal range of police powers of the state, an d did not single out any particular class of speech or speakers for inferior treatment. For the same reason, the Court prohibited taxes levied on the exercise of those freedoms. F ina lly, it should be noted that in these cases, the Su pr em e Cou rt pr otect ed the fr eedom to proselytize even though at times the message and the manner in which it was delivered wa s intoler ant, divisive a nd a bu sive, and cou ld disturb the targets in their own r eligious feelings and in their tolerance of others: Con side ra ble emph asis is placed on the kin d of literature
which pet ition er s wer e dis tr ibu tin g — its provocative, abusive, and ill-mannered character and the assault which it makes on our established chu rch es an d t he ch er ish ed fait hs of m an y of us. But those cons ide ra tion s a re no just ificat ion for the license tax wh ich t he ord ina nce impose s. Plain ly a comm un ity may not suppr ess, or the state tax, the dissemination of views because th ey a re unpop ular, a nnoyin g or dis ta st efu l. If that de vice were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minorit y ch er ish es bu t w h ich doe s n ot h app en to be in favor. That wou ld be a com plet e r ep u diation of th e p h ilosoph y of t h e Bill of Rights.39
38. Jones I, 316 U.S . at 607-0 8 (St one , C.J ., dis sen tin g); see al so Fol lett , 321 U.S. a t 57 9 ( Mu r ph y, J ., con cu r r in g) (“I t is wise to remember that the taxing and licensing power is a da ngerous and potent weapon which, in t he ha nd s of unscrupulous or big ote d m en , cou ld b e u se d t o su pp re ss fre edom s an d de st roy re ligion unless it is k ep t w it hi n a pp ropr ia te bou nd s.”). 39. Murdock, 319 U.S. at 115-16 (citation omitted); see als o Ma rt in v . Cit y of Struthers, 319 U.S. 141, 157 (1943). Recent United Stat es Suprem e Court cases involving proselytism include Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S . 640 (1981 ); Board of Airport Comm ’rs v. Jews for Jesus , In c., 482 U.S. 569 (198 7); J im m y S wa ggar t M in ist ries v . Boa rd of Equ ali zat ion , 493 U.S . 378 (198 9); Int’l D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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2. Discrimination in restrictions on proselytism Rest rict ion s on proselytism can give rise to a number of issues regarding discrimination on the basis of religion or belief. A restriction may on its face make distinctions on the basis of religion (either that of the source or that of the target). Even in t he abs ence of a facial distinction, a r estriction may have a differential effect on religious groups due to differences between those groups (either in ter ms of belief or other wis e). Further, a r estriction may be applied or enforced by th e relevant authorities in a differential manner. All of these differ en tia tion s are poten tia lly discr im in atory. The danger of discrimin at ion is particu lar ly high where un der lying t he distinctions ar e tensions bet ween the domin ant religiou s group and min orit y gr oups, coupled wit h t he a bility of the domin an t group to effect public policy, as well as th e law an d its application. Exam ples of facial dist inctions include t he la ws of certa in Isla mic countries that prohibit proselytism only where the target is a Muslim.40 In other situations, a restr iction may be placed on proselytism by a part icular group. This type of restriction may accompany, or be a n inten ded con sequ en ce of, a ban on t he existen ce or lim it ations on the a ctivit ies of th at gr oup in its organizational form. Examples of this type of restriction ha ve included the Ahma dis in Pa kist an , Bah a’is in Iran, and Jehovah’s Witnesses in Argentina, Singapore, Gabon and the Cen tral Afr ica n Repu blic.41 Another t ype of facial
Society for Krishna Consciousness, In c. v. Lee, 505 U.S. 672 (1992); and Lee v . Int’l Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992). Tabl e of U ni ted S ta tes Supreme Court Cases Concerning the Regulation of Proselytism (1937-1953) at the end of this article further illustrates the range of regulations that swept proselytism under their purview and the variety of interests asserted by the states in these cases. 40. See, for exam ple, t he s itu at ion in Mala ysia d escrib ed in Pa rt IV.C.1.a a nd accompanying notes. 41. See Im plem ent at ion of th e Declaration on th e Eli m in ati on of All Form s of In toler an ce an d of Dis crim in at ion Ba sed on R eligi on or Bel ief, Com mi ssi on on Hu ma n Rights, U.N . ESCO R, 52d Se ss., Agen da I tem 18 ¶ ¶ 9, 13, 21, 41-44, U .N. Doc. E/CN.4/1996/95/Add.1 (199 6) (Ah ma dis in Pa ki st an ) [he r einafter S pecia l R apport eur ’s Report 1996 A dd . 1.]; Im plem ent ati on of th e Declar ati on on the Elimin ation of All Forms of Intolerance and of Di scri m in at ion Ba sed on R eligi on or Bel ief, U.N. Com mi ssi on on Hu ma n Rights, 52d Sess ., Age nd a I te m 1 8 ¶ ¶ 55-7 0, U .N. Doc. E/CN.4/1996/95/Add.2 (1996) (Baha’is in Iran) [hereinafter S pecia l R app orteu r’s Report D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
268 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 dist inction th at is pr evalent in restrictions on proselyt ism is regulation of the foreign, as opposed to native, source.42 Fa cially neu tr al r estrictions on pr oselytism m ore heavily impact religiou s groups that encourage, ma ndat e, or frequ ent ly engage in proselytism than those groups that discourage, prohibit, or otherwise do not enga ge in proselytism. Simila rly, facially neu tr al r estrictions of proselytism m ay affect majorit y and minority religious groups in different ways. To the exten t that a control on proselytism is intended to preserve a certa in pattern of religiou s a ffiliation by lim it in g t he oppor tunities for conversion, such a provision will na tu ra lly favor the m ajorit y religiou s gr oup, part icular ly if the ma jority is n ot aggressively seeking converts of its own. As noted above with respect t o the cases involving the Jehovah’s Witnesses in the United States, regulations that are vagu e or tha t lea ve official decision makers br oad d iscret ion are susceptible to discr im in atory a bu se in their app lica tion . Furthermore, even restrictions that are framed in more precise, neutral ter ms can be enforced in a differential manner. In Kokkinakis v. Greece,43 an applicant to the European Court of Human Rights described such a situation. Although the Greek statute in question prohibited proselyt ism by mem bers of all religiou s groups,44 the applicant asserted that Greece did not uniformly enforce the prohibition: [I]t would surpa ss “even the wildest academic hypothesis” to
imagine, for exa m ple, th e pos sibilit y of a com pla int bein g made by a Catholic priest or by a P rotest an t clergym an against an Orthodox Christian who had att em pt ed to e ntice one of his flock away from him. It was even less likely that an
1996 Ad d.2]; Report on the S ituation of Hu ma n R ights in A rgentina, In te r-Am er ica Com mi ssi on on Human Rights, OEA/ser.LI/V/II.49. doc. 19 corr.1 (1980) at 251-55 (Jeh ovah’s Witnesses in Argentina); Zaheeru ddin v. Sta te, 26 S.C.M.R. (Sup.Ct.) 1718 (1993) (Pak .) (Ahmadis in Pa kistan); Cha n H ian g Leng Colin v. P ub lic P ros ecu tor [1995] 1 SLR 687 (Jehovah’s Witnesses in Sin gapore); Chan Hia ng Len g Colin v. Minister for Information and the Arts [1995] 3 SLR 644 (Jehovah ’s Witnesses in Sin ga por e); U.S. Depar tmen t of State, 104t h Cong., 2d Ses s., Cou nt ry R eport s on Hum an Right s Practices for 1995, at 47 (Jeh ovah’s Witnesses in Central African Rep ub lic); id. at 98 (reporting restrictions on Jeh ovah’s Witnesses in Gabon although they ar e n ot fo rm al ly e nforce d). 42. See, for exam ple, th e situ at ions in China and Ukraine described in Part IV.C .1.b-c and accompanying notes. 43. 260 Eu r. Ct . H .R. (se r. A) (199 3). 44. See infra note 101 and accompanying text. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Orthodox Ch ris tia n wou ld b e p ros ecu te d for pr oselyt isin g on beh alf of th e “dom inan t r eligion.”45
Regardless of whether or not this is, or was, an accurate portrayal of th e enforce men t of the Greek r estrictions, it sufficiently illustrates the type of problem that can arise. Differentia l application or enforcement of nondiscriminatory rules can bring about the same results as discriminatory ones.
III. PROSELYTISM AND INTERN ATIONAL HUMAN RIGHTS LAW All major international human rights documents recognize the right t o freedom of religion, which includes not only the freedom to hold religious beliefs, but also the freedom to manifest those beliefs.46 Article 18 of the International Covenant of Civil and Political Rights (“ICCPR”) provides: Ever yon e sh all h ave the right to freedom of thought, 1. conscience and r eligion. Th is r igh t s hall in clude fre ed om to have or to adop t a re ligion or be lief of his ch oice, an d fr ee dom , either ind ividually or in comm un ity w ith oth er s a nd in p ub lic or pr ivate, to m an ifest his religion or belief in w orship, observa nce, pra ctice and tea ching. 2. No one sh all be su bject to coer cion w hich wou ld impa ir h is fre ed om to h av e or to a dop t a re ligion or b elief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limita tion s a s a re pr escr ibed by la w a nd are ne cessa ry to prot ect p ub lic safety, or der , healt h, or m ora ls or the fundam enta l rights and freedoms of others.47
45. Kokkinakis, 260 Eur . Ct. H.R. (ser. A) at 16-17. 46. See ICCP R, supra note 24, ar t. 18. Th is ar ticle will deal primarily with the developing body of international human rights law through the work of the United Nations Hu ma n Righ ts Co m m it t ee (“H u m a n Ri gh t s Co m m it t ee ” or “Co m m it t ee ”) under th e IC CP R, a nd th e r epor ts an d d ecis ion s of t he hu ma n r igh ts tr ibu na ls of t he Council of Europe, the European Court of Huma n Rights (“European Court”), and the European Commission of Human Rights (“European Commission,” together the “European Bod ies ”) un der t he E ur opean Conven tion. See supra note 24. The European Com mi ssi on was disbanded in 1998 , an d it s r ole h as bee n s ub su me d in to a reorganized European Court. See Pr otocol No. 11 to t he E ur opean Conven tion, supra note 24. 47. The pr ovisi ons of oth er int er na tion al i ns tr um en ts ar e ba sed on t he same lan gua ge as ar ticle 18 of the ICCPR, which itse lf is de ri ved from a rt icle 18 of t he Universal Declaration of Human Rights. Article 9 of the European Convention provides: Everyone has the rig ht to fr eed om of t hou ght, con science an d r eligi on; th is rig ht incl ud es fr eed om t o chan ge h is r eligi on or beli ef a nd fre edom , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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While the freedom to hold beliefs is considered to be absolute, i.e., n ot su bject to limitation by the State, the freedom to manifest beliefs is subject to valid limitations.48 According to the Human Rights Committee, Art icle 18.3 permits restrictions on the freedom to
ma nifest religion or belief only if limitations are prescribed by law and are necessary to pr ote ct p ublic safe ty, ord er , hea lth or morals, or t he fu nda m en ta l righ ts an d fr eedom s of other s. . . . The Com mittee observes tha t paragr aph 3 of article 18 is to be strict ly interpr eted: restrictions ar e not allowed on grounds not specified there, even if they would be allowed as rest rict ions to other rights pr otected in the Covenant, such as national security. Limitations may be applied only for those purposes for w hich they were pr escr ibed an d m us t be dir ectly rela ted and proportionate to the specific need on which they are predicated.49
Bot h the Human Rights Committee and the European Court have clearly stat ed t ha t t hose provisions gu ar an teeing th e right to freedom of religion protect n ot only religious beliefs, bu t a lso
either alone or in community with others an d in p ublic or p riva te, t o manifest his religion or belief, in worship, teaching, practice and observance. Freedom to m an ifes t on e’s re ligion or bel iefs sh al l be su bject only to such lim it at ion s a s a re pr escri bed by la w a nd ar e n eces sa ry in a d em ocra tic society in the interest s of public safety, for the protection of public order, health or m ora ls, or for the protection of the rights and freedoms of others. European Conven tion, supra not e 24 ; see also American Convention on Human Rights, Nov. 22, 1969, ar t. 12, 9 I.L.M. 99 (1969) [herein after American Con ven ti on]; Declar ati on on t he E lim in ati on of All Form s of R eligi ous In toler an ce an d of Dis crim in ati on Based on Religi on or B elief , G.A. Res. 36-55, U.N. GAOR, 36th Sess. Agenda It em 75, Su pp . N o. 51 , a rt . 1(1 ), U .N . Doc. A/36/55 (1 981 ) [he re in aft er Declar ati on on Religious Intoler an ce]; Concluding Docum ent of the Vienna M eeting, Con fer en ce on Secur ity an d Coopera tion in Eur ope, prin c. 16, repr in ted in 28 I.L.M. 531, 534 [hereinafter CSCE Vienna]. 48. See Human Rights Comm itt ee, General Comm ent No. 22 (48) (art. 18), U.N. GAOR, 48th Ses s., Supp. No. 40, ¶ 3, U.N . Doc. CC PR /C/21/Re v. 1 /Add .1 (1 989 ), repr in ted in U.N. Doc. HR1/GE N/1/Rev.1 at 26 (1994) [hereinafter Gen eral Com m ent on Article 18]. 49. Id. ¶ 8. The European Court ha s adopted a simila r for mu lat ion for th e review of an interference with th e freedom to manifest religion or bel ief. “Su ch a n in te rfe re nce is con tr ar y to Ar ticl e 9 u nle ss i t is pr escr ibed by la w, di re cte d a t on e or more of the legit ima te a ims in par agr aph 2 an d neces sar y in a democr at ic socie ty for achieving th em.” Kokkinak is, 260 Eu r. Ct . H .R. (se r. A) at 18 (q uota ti ons om it te d). For an interfer en ce t o be “ne cess ar y in a d em ocra tic s ociet y,” it m us t b e bot h “justified in principle and proportionate” to the aim to be achieved. Id. at 21. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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other beliefs of a similar fundamen ta l char acter, in cluding atheism and agnosticism.50 Alon g with t he right to freedom of religion, international human rights instru men ts recognize t he prin ciples of equality and nondiscrimination on the basis of religion. The ICCPR and the Eu ropea n Convent ion bot h contain obligations to secure the rights specified in those inst rumen ts wit hout “distinction of an y kind” (in the words of Article 2(1) of t he ICCP R51) or “discrimi- nation on any ground” (in t he words of Art icle 14 of t he European Convention).52 In addition, both instruments recognize that the pr in ciple of nondiscrimin at ion extends beyond the assurance of the specific rights ar ticulat ed in th e instr um ent s. Article 26 of the ICCPR obligates stat es to provide for the equa l protection of the law and “equal a nd effective pr otect ion aga in st discr im in ation on any ground.”53 This protection is not limited to the rights specified in th e ICCPR, but extends to “any field regulated and protected by public authorities.”54 Although the obligation to pre
50. See General Comm ent on Article 18, supra not e 48 , ¶ 2 (“Art icle 1 8 pr ote cts th eis ti c, non-theistic and at heistic beliefs, as well as the right not to profess any re ligion or b elie f.”); Kokkinakis, 260 Eur. Ct . H. R. (se r. A) a t 1 7 (Art icle 9 “is al so a precious as se t for at he ist s, a gn ost ics, sk ep ti cs a nd th e u nco nce rn ed .”). 51. Article 2(1) of the ICCPR provides: “Each State Part y to the present Covenant un dert ake s to r espect an d to en sur e to all in dividu als wit hin its te rr itor y and subject to its jur isd icti on t he rig ht s r ecogn ized in t he pr ese nt Coven an t, w ith out dis tin ction of any k ind, s uch as r ace, colour, sex, language, religion, political or other opinion, na tional or social origin , prope rt y, birt h or other s ta tu s.” ICCPR, supra note 24, ar t. 2(1). 52. Article 14 of t he Eu rop ea n C onve nt ion p rovide s: “The enjoyment of the rights and freedoms set forth in this Convent ion shall be secured wit hou t dis crim ina tion on a ny gr oun d s uch as sex, r ace , colou r, la ng ua ge, r elig ion , poli ti cal or other opinion, national or social origin, as sociation w ith a n at ional m inorit y, proper ty, birt h or other s ta tu s.” Eur opean Conven tion, supra note 24, art. 14. 53. Article 26 of the ICCPR provides: “All persons are equal before th e law an d are entitled with out an y discrimination to the equal prot ection of th e law. In th is respect, th e law sh all pr ohibit a ny discr imin at ion an d gua ra nt ee to a ll persons equal and effect ive p rot ect ion a gai ns t d iscr im ina tion on any ground such as race, colour, sex, lan guage , re ligion , polit ical or ot her opinion, n at ional or social origin, pr opert y, birth or oth er s ta tu s.” ICCPR, supra note 24, ar t. 26. 54. The Human Rights Committee has determi ne d t ha t “art icle 26 doe s n ot mer ely duplicate the gua ra nt ees pr ovided for in a rt icle 2 . . . . [Article 26] prohibit s dis crim ina tion in law and in practice in any field regulated an d prot ect ed by pu blic au th orit ies.” S.W.M. Broeks v. The Netherlands (views adopted 9 April 1987, 29th Sess .) Communication No. 172/1984, Report of the Commission on Human Rights, U.N. GAOR 4 2d S ess ., Su pp. No. 4 0, ¶ 12.3 , U.N. D oc. No. A/4 2/40 (1987), repr in ted in 2 Y.B.H.R. Comm . 293, 297 (applyin g Article 26 t o social secur ity legislation D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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vent discrimination contained in article 14 of the European Con ven tion does n ot have t he same r ea ch as a rticle 26 of t he ICCPR, an indepen dent violat ion of a right specified in the European Convention is not necessary to support a claim of discrimin at ion under article 14. To raise a va lid cla im of discrimination, it is enough to sh ow t hat the subject matter of the claim falls within the scope of an a rt icle protecting a specified right.55 It should be men tion ed, h owever , t hat not every case of unequal tr eatment is considered to be discrimination.56 Under both the ICCPR an d the European Conven tion , un equal t rea tm ent is not discrimina tion if it is
outside the pu rview of any of the other rights specified in the ICCPR) [hereinafter Br oek s]. See also, General Comm ent on Article 18, supra note 48, ¶ 12. 55. See Bel giu m v . Ma rck x, 3 1 E ur . Ct . H .R. (se r. A) at 15-16 (1979); Inze v. Austria, 126 Eur . Ct. H .R. (ser. A) at 17 (1987). This relationsh ip is established when a stat e enacts m easur es tha t go beyond the minimu m requir ement s of specified rights. S ee, e.g., Belgian Linguist ics Cases, 6 Eu r. Ct . H.R. (ser . A) (1968) (suggesting that sta te pr ovision of educat ion in m ult iple lan guages beyond th e r equ irem en ts of the righ t t o educat ion protected un der a rt icle 2 still is su bject to pr ovisions of art icle 14). The r elat ionsh ip ma y also be estab lis he d whe n t he st at e s ee ks to j us ti fy limitations on spe cified righ ts. S ee, e.g., Gra ndr at h v. Federal Republic of German y, App. No. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626, 678 (Eur. Comm’n. on H.R.) (1967) (limitation on ri gh t t o be fre e fr om forced la bor pr ote cte d u nd er ar ti cle 4 (3)(b)); Belgian Lingu istics C ase , 6 Eu r. Ct . H.R. (Ser. A) at 34 (1968) (“It is as th ough [article 14] formed a n in tegr al pa rt of each of the Ar ticles laying down righ ts a nd fre ed om s.”). For more on the debate behind th is issue, see E. W. VIERDAG, TH E CONCEPT OF DISCRIMINATION IN INTERNATIONAL LAW 113 -20 (1 973 ). 56. The Hu ma n R igh ts Com mi tt ee h as su gges te d t he followin g de fini tion under the ICCPR: “[D ]i s cr im in a t io n ”. . . sh ould be under st ood t o imply a ny dis tin ction , exclu sion , restriction or preference which is based on any ground such as race, colour , se x, la ngua ge, r eligi on, p olit ical or oth er opin ion, na tion al or social origin, pr opert y, birt h or ot her sta tu s, an d which ha s the pur pose or effect of nullifying or im pair ing the r ecognition, en joyment or exercise by all persons, on an equal footing, of all rights and freedoms. Human Right s Comm itt ee, Gen eral Com m ent N o. 18 [37], ¶ 7 , U.N. Doc. CCPR/C/21/Rev./Add.2, reprinted in 2 Y.B.H.R. Comm. at 377 [hereinafter General Com m ent on N on-d iscri m in ati on]. This definition is pattern ed after th e d efini ti ons con ta in ed in ar ti cle 1 of th e International Con ven tion on t he Eli mi na tion of All For ms of Racial D iscr im ina tion , opened for signature Ma rch 7, 1966, 660 U.N.T.S. 195, reprinted in 5 I.L.M. 352 (entered int o force J an . 4, 19 69) [h er ein aft er Ra ce Con ven tion ] and a rt icle 1 of th e Women’s Con ven tion (excep t t ha t t he Wom en ’s Conven tion definition does not include the term “preference”). These latter definitions do not a ppear to allow for any unequ al treatment on th e bas is of race or s ex, res pectively. Th e use of the word “imply” in the Human Rights Comm ittee’s definition of discrimination under the Covenant appears to re cognize the possibility t ha t n ot all differen tial or un equa l tr eat men t is discrimination. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 273 made in pu rsuit of a legitimat e aim an d is based on objective and reasonable grounds.57 The right to freedom of religion is also explicitly recognized in th ose provisions of intern at ional huma n r ights documents that concern the rights of min orit ies . Specifica lly, a rticle 27 of the ICCPR provides: “In those St ates in wh ich et hnic, r eligiou s or lin gu istic m in orities exist , per son s belon gin g t o su ch minorities shall not be denied the right, in community with the other mem bers of t heir gr oup, t o enjoy th eir own cultu re, to profess and practise their own religion, or to use their own lan gua ge.”58 Although it has been expressed that article 27 provides for dist in ct, a nd a dd it ion al, p rotect ion of the r igh t of persons belongin g to religiou s min orities to profess a nd practice th eir religion ,59 it is not entirely clea r how t hese provis ion s
57. The Hu ma n R igh ts Com mi tt ee h ad st at ed: “ The right to equality before the law and to equal protection of the law without any discrimination does not m ake all differences of tr ea tm en t d iscr im in at ory. A d ifferentiation based on reasonable and objective criter ia does n ot am ount to pr ohibited discrimination within the meaning of ar ticl e 26 .” Broe ks, supra not e 54 , ¶ 13; see also General Comm ent on Article 18, supra note 48, ¶ 13 (“[T]he Com mi tt ee ob ser ves th at not every differ en tia tion of trea tment will constit ut e discrim ina tion, if th e crite ria for such d ifferent iation are reas onable an d objective an d if the aim is to ach ieve a pu rpose w hich is le gitimate under th e Co ven an t. ”). The Eu rop ea n C our t h as come to a sim ila r con clus ion: [T]he principle of equality of treatment is violated if the distinction has no objective an d r ea son ab le ju st ificat ion. Th e exist en ce of su ch a jus tificat ion must be assessed in relation to the aim a nd effects of the measure u nder cons ide ra tion . . . . A difference of trea tm ent in the exe rcise of a r ight laid down in th e Convention m ust not only pur sue a legitimat e aim: Article 14 is likewise violated when it is clearly esta blished that th ere is no reason able re lat ionship of proportion ality between t he m ean s em ployed an d th e aim sought to be realised. Belgian Lin gu ist ics C as e, 6 Eu r. Ct . H .R. (se r. A) at 34 (1 968 ). 58. ICCPR, supra not e 24 , ar t. 2 7; see Decl aration on t he R igh ts of Pers ons Belonging to National or Et hnic, Religiou s an d L in gu ist ic M in orit ies, An ne x 2 G .A. Res. 47/135, U.N. GAOR, 47t h Se ss., Su pp. N o. 49, ar t. 1(1), U.N . Doc. A/47/135 (Vol. I) (1992), reprinted in 32 I.L.M. 911 (1993) [hereinafter Mi nor iti es Declar ati on]; Framework Con ven tion for t he Pr ote ction of Nat ional Min orities Adopted by t he Cou ncil of Europe, Fe b. 1, 1995, a rt . 8, reprinted in 34 I.L.M. 351 (1995) [hereinafter Framework Con ven tion ]; Docu m ent of th e Copen hagen M eetin g of th e Conferen ce on the Hu m an Dim ens ion , Conferen ce on Secur ity an d Cooperation in Eu rope, Ju ne 29, 1990, ¶ 3 2, reprinted in 29 I.L.M. 1305 (1990) [hereinafter Copen ha gen Docu m ent ]. 59. See Hu ma n Righ ts C omm itt ee, General Comment No. 23(50) (art. 27), U.N. GAOR 50t h S es s., ¶ 1, U .N . Doc. CCP R/C/2 1/Re v.1 /Add .5 (1 994) [hereinafter General Com m ent on Article 27] (“[Article 27] establishes an d recognizes a right which is conferred on i nd ivid ua ls b elon gin g t o mi nor it y gr oup s a nd wh ich is distinct from, and additional to, all t he other righ ts wh ich, as in dividua ls in comm on with everyone else, D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
274 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 provide any additional protection in this regard than that provided to all persons under the general provisions covering the rights to freedom of religion and to equal protection of the laws. One possible exception to this general statement is the obligation of the state to take measures to protect the identity, including the r eligiou s identit y, of t hose belonging to a m inority group.60 Such measures must be consistent with the general obliga tion s against discrimination. The Human Right s Committee has stated that special measures are not discrimin at ion wh en (1) t hey “a re a im ed at correcting condition s which pr event or impair th e enjoyment of th e right s guaranteed under article 27,” (2) they a re “ba sed on rea son able and objective crit er ia ,” an d (3) they “r espect the provisions of articles 2(1) and 26 of th e [ICCPR] both as regar ds t he treatment between different minorities and the treatment between the persons belonging to them and the remaining part of th e popu lat ion.”61 The key factor here is some condition that
they ar e a lr ea dy e nt it led to e nj oy u nd er th e Co ven an t. ”). 60. According to the H uma n Rights Commit tee, “positive measures by Stat es may also be n ecessa ry t o protect th e iden tit y of a min orit y. . . .” Id. ¶ 6.2; see also id. ¶ 8. Article 8(3) of the Mi nor iti es Decla rat ion provides that “[m]easures t aken by Stat es to ensur e the effective enjoyment of the rights set forth in [the presen t] Decla ra tion shall not prima facie be considered contrary to the principle of equality contained in the U niver sal Declara tion of Hu ma n Righ ts.” Mi nor iti es Decla rat ion , supra note 58, ar t. 8(3). The Min orities Declar ation does n ot, however , contain an y positive obligat ion on S ta tes to ta ke s uch specia l mea sur es. See PATRICK THORNBERRY, INTE RNAT ION AL LAW AND THE RIGHTS OF MINORITIES 51 (1 991 ). Article 4 of the Framework Convention stat es: “[U]ndertake to adopt, where necessa ry, adequa te measures in ord er to pr omote . . . full and effective equality between per son s be long ing to a na tion al minority an d t hos e be long ing to t he ma jority.” Fra mework Convention , supra note 58, art. 4(2). Such special measures are not discrim ina tion. S ee id. ar t. 4(3). In th e fra mew ork of th e pr otection of minor ities un der th e Or gan izat ion for th e Security and Coopera tion in Eu rope (forme rly the Con feren ce for the Secur ity and Coope ra tion in Eur ope): The par ticipat ing St at es will prote ct t he et hn ic, cu lt ur al , lin gu ist ic a nd religious ide nt ity of na tion al m inor ities on their territory and create cond iti ons for the prom otion of tha t iden tity. They will take the necessary measu res to th at effect after due cons ult at ions, in cluding cont acts with organ iza tion s or as sociations of such minorit ies, in a ccordance with th e decision-ma king procedures of each State. Copen ha gen Docu m ent , supra note 58, ¶ 33. 61. General Comm ent on Article 27, supra not e 59 , ¶ 6.2; see also Copen ha gen Docu m ent , supra not e 58 , ¶ 33 (“Any s uch me as ur es w ill be in con form ity wit h the principles of equ al it y a nd non -dis cri mi na ti on w it h r espect to t he oth er citi zen s of the D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 275 truly th reat ens the exist ence or way of life of the minority, 62 or the ability to exercise their rights.63
IV. THE RIGHTS AND INTERESTS IMP LIC ATE D B Y RESTRICTIONS ON PROSELYTISM In conflicts involving proselytism, the rights a nd interests of the sou rce, t he t arget and t he state ca n be arrayed against one another. The task of determining wheth er proselytism can be rest ricted consistent with international human rights standards will necessar ily involve an a na lysis of th ese r ight s and int erests. This section explores the r ights and int erests of each of these parties, referring whenever possible to the adjudication and commentary by international bodies on these issues.
A. The Rights of the Source 1. The freedom to m an ifest religi on or belief Is proselytism a m an ifestat ion of religion or belief, and therefore encompassed within the concept of the right to freedom of religion or belief? There is no definitive consensus in international human rights inst rumen ts. Wit h the excep tion of the Amer ican Convention, which explicitly st at es in ar ticle 12(1) that the righ t to freedom of religion in clu des t he fr eedom to “disseminate one’s religion or beliefs,”64 neither proselytism nor th e freedom to dissem ina te a religion is men tioned in
participating St at e con cer ne d.”). 62. See Omina yak v. Can ada, Comm unicat ion No. 167/1984, U.N. GAOR, 45th Sess ., Su pp . N o. 40 , (Vol. I I), An n ex 9A, Commission on Hum an Right s, ¶¶ 32.2, 33, U.N. Doc. A/45/40 (1990), reprinted in Y.B.H.R. Comm. at 381 (holding that state development plans that t hreaten to destroy subsistence patterns of Canadian Indian group violated th e righ t “to enga ge in econom ic and s ocial activities which are part of th e cu ltu re of th e com mu nit y to which they belong” and which were protected under ar ti cle 2 7). T hi s cou ld r ai se tr oubli ng iss ue s for re ligi ous m in orit ies if their exis te nce is based on personal choice rather tha n na tional or ethn ic difference. 63. See Lovelace v. Canada, Comm unicat ion No. 24/1977, U.N. GAOR, 13th Sess ., Sup p. No. 40, (Vol. II), ¶ 15, U.N . Doc. A/36/40 (1981), repr in ted in Y.B.H.R. Com m. at 320 (suggesting that th e national law tha t deprived author of her right to rem ain on tr ibal r eser ve violated her righ t u nder ar ticle 27 to have access to her na tive culture a nd langu age in community with other s because th e reserve was the only pla ce s he cou ld h av e a cces s t o th ose th in gs). 64. Ame ri can Conven tion, supra note 47, ar t. 12(1 ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
276 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 international instruments.65 Th e la ck of any dir ect recogn it ion of proselytism m ay be a n indication of the sensitivity of states to th e issu es it raises and the difficulty of delineat ing agreeable standards.66 Given that proclaiming religious experience and belief is important to many of the major religions of the world, it is logical that the freedom to manifest religion would include the attempt to persuade another to adopt new religiou s beliefs or affiliation .67 As Arcot Kr ishnasw ami, a sp ecia l r app orteu r to the
65. Som e activities that are closely associated with proselytism are m entioned in these international documents. S ee, e.g., General Comm ent on Article 18, supra note 48, ¶ 4 (“fre edom t o pr epa re an d dist ri bu te re ligious te xt s or pu blica tions” is part of teaching and pra cti ce of re ligion ); Decla rat ion on R eligi ous In toler an ce, supra note 47, a rt . 6(d) (fr eed om t o “write , is su e a nd dis se mi na te re lev an t p ub lica ti ons”); id. art 6(f) (free dom “[t]o s olici t a nd re ceiv e vol un ta ry fin an cia l . . . con tr ibu ti ons”); CSCE Vienna, supra note 47, p ri nci ple 16d (fre ed om to s olici t fi na nci al con tr ibu ti ons); id. pr in cipl e 16 j (fr ee dom to d iss em in at e r eli giou s p ub lica ti ons). 66. As ap pr oved by t he dr aft ing comm ittee of the Com miss ion on H um an Right s in 1947 , th e a rt icle in th e dr aft Coven an t on Civil an d P olit ical Righ ts on fr eed om of re ligion cont ain ed t he followin g pr ovisi on: Every pe rs on of ful l a ge a nd sou nd mi nd sh al l be fre e, either alone or in a community with other persons of like mind, to g ive a nd re ceive an y form of religious tea ching [and endeavor to persuade other persons of full age and sou nd min d of the truth of his beliefs], and in th e case of a m inor the parent or gua rdia n sh all be fre e to det erm ine wh at religious tea ching h e sha ll receive. MALCOLM D. EVANS, RELIGIOUS LIBERTY AND INTERNATIONAL LAW IN EUROPE 194 (1997) (quoting Report of the Workin g Group to th e CHR, E/CN.4/56, art. 15) (emph asis adde d). The it alicized por tion of t he dr aft pr ovisi on w as del et ed fr om t he ar ticle as ad opt ed b y th e Com mi ssi on. See id. at 194-95. 67. Not all states are in agreement. The Malaysian government has argued that laws pr ohib iti ng pr osel yti sm dir ect ed a t M us lim s do not impact upon the right to religious freedom of non-Muslims. For th e prot ection of its sp ecial position a s t he re ligion of th e F ede ra tion , art icle 11 (4) of the Constitution provides tha t Sta te law (and federa l law in respect of the federal territories) may control or restrict the propagat ion of non-Islamic religions among Muslims. . . . . Such being th e limit ed scope of th e en actm ent s, th ey could not in any way diminish the enjoyment by non-M us lim s of fr eed om of t hou gh t, cons cien ce and religion. Im plem ent ati on of the Declaration on the Elim ination of All Forms of Intolerance and of Dis crim in at ion Ba sed on R eligi on or Bel ief, U.N. ESCOR, 46th Sess., Capital Provisional Agen da It em 24, C omm it te e on Hu ma n R igh ts , ¶ 58, U .N. Doc. E/CN.4/1990/46 (1990) [hereinafter S pecia l R app orteu r’s Report 1 990]. The Indian Supreme Court in Stainislaus v. Mad hy a Pr ad esh & Ors., (19 77) 2 S.C.R. 611, discussed infra notes 206-208 an d accomp an ying t ext, held that “the right freely to profess, practice and propagate religion” as enshrined in the Indian Constitution, did not encompass th e right t o convert (or attempt to convert) anoth er D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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United Nations, has said: “While some faiths do not attempt to win new convert s, man y of them m ake it m an datory for their followers to sp rea d t heir messa ge t o all, and t o attempt to convert others. For the la tter , dissemin ation is an im por tant aspect of the righ t t o manifest t heir r eligion or belief.”68 International recogn it ion of th e freedom t o change religion further support t his view. The European Court has held that proselytism is a compon en t of the fr eedom of religion gu aranteed by a rticle 9 of t he E uropean Con ven tion : Wh ile r eligious freedom is primarily a matter of individual
conscience, it a lso im plie s, inter alia, freedom to manifest [one’s] religion. Bearing witness in words and deeds is bou nd up with the existence of religious convictions. Accordin g to Article 9, freedom to manifest [one’s] re ligion . . . includes in p rin ciple the righ t t o tr y t o con vin ce one’s neighbou r, for exa m ple th rough te achin g, fa ilin g w hich , moreover, fre ed om to ch an ge [on e’s] re ligion or be lief, enshrined in Article 9, would be likely to remain a dead letter.69
The Inter-American Commission on Human Rights has apparen tly reached a similar conclusion, although in a case that did not directly concern proselytism. In Ortiz v. Guatam ala,70 the Inter-American Commission adjudicated claims concer nin g t he k idnaping, det en tion and torture of an Amer ica n Ca tholic n un, Sist er Or tiz, by agen ts of t he Guatemalan governmen t. Th e Inter -Amer ica n Com mission determined that the violence inflicted on Sister Ortiz violat ed, inter alia, her right to freedom of religion protected under the Amer ica n Con ven tion :
per son to one’s own religion. Id. at 615-16. A close readin g of th e Cou rt’s ana lysis shows that it made this determina tion beca us e it bel ieve d t ha t r ecogn izin g su ch a right wou ld violat e t he rig ht s of others. It can be q ue st ione d wh et he r or not th e Cou rt should have made this determination at such an abstract level. It is on e th ing to say that t he statu te before it, by virtue of selecting the appropriate criteria, is a valid lim it at ion on th e r igh t t o pr opa ga te re ligi on in fur th erance of protectin g th e rights of others . It is a noth er t o implicitly hold tha t u nder no circum sta nces wou ld a limitation be invalid, at lea st as aga ins t t he cons tit ut iona l pr ote ction of free dom of religion. 68. KRISHNASWAMI STUDY, supra not e 8, a t 3 4. In te rn at iona l recogn it ion of th e fre edom to cha nge r eligion fur th er s upp ort s th is view. See infra Par t IV.B.1. 69. Kokkinakis v. Gr eece , 260 Eu r. C t. H .R. (se r. A) a t 1 7 (199 3) (qu ota tion s om it te d). 70. Case 10. 526 , In te r-Am . C.H .R. 45, OE A/se r. L/V.I I.9 5 doc. 7 r ev. 2 (19 96). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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It is likely that the attacks against Sister Ortiz were inten ded
to punish and supp re ss her re ligiou s a ctiv ities as a Ch urch m issionar y an d h er wor k w ith th e in digen ous p eop le of [Guatemala]. . . . In add ition , be cau se of th e surveillance, threats, kidna pp ing, tortu re an d r ap e wh ich S ister Or tiz experienced, she return ed to the United Sta tes to escape her captors an d t he violen ce agains t h er in Guatemala and has been unab le t o re tu rn beca use of he r fe ar . As a result, she has been denied her righ t to ex ercise h er rig ht to freed om of conscien ce and religion by working as a foreign m issionary in Gu at em ala for th e Ca th olic C hurch .71
As proselytism falls within the ambit of the manifestation of religion , it does so regardless of the form t ha t it ma y ta ke. A particular problem arises wh ere th e proselytizing activity is in a form that is unusual in comparison to other religious groups, or where it includes practices tha t a re disfavored by those groups. However, in the words of the Human Rights Committ ee, the scope of th e r igh t to fre edom of religion “is not limited [to] . . . practices analogous to those of traditional religions.”72 The United Stat es Su preme Court a ddr essed this problem by placing door-to-door proselytism of th e J ehovah’s Witnesses on equal footing with more traditional practices: Th e h an d d ist rib ution of re ligiou s t ra cts is a n ag e-old form
of missionary evan gelism—as old as the history of printing presses. It ha s been a p oten t force in various religiou s movemen ts down through the year s. This form of evangelism is utilized today on a larg e scale b y va riou s r elig iou s sect s whose colporteurs carry the Gospel to thousands upon thousands of hom es a nd seek t hr ough p er son al visitations to win adherents to their faith. It is more than preaching; it is more th an dist ribut ion of religiou s literatur e. It is a com bin at ion of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under th e F irst Am en dm en t a s do w orship in the churches and preaching from the pu lpits. It has the same
71. Id. ¶ 119 (empha sis a dded ). Accord ing to the case report, Sister Ortiz “was present in Gu at em al a a s a re pr es en ta ti ve of t he [Ca th olic] C hurch who worked with poor indige nou s per sons . . . .” Id. ¶ 81. 72. General Comm ent on Article 18, supra note 48, ¶ 2. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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claim to p rot ect ion as th e m ore ort hodox an d con ven tion al exe rcis es of re ligion .73
2. The righ t to freedom of expression As proselytism is here defined as expressive activity, it is encompassed by the right to freedom of expression protected under international human rights instruments. Although the dist inction between proselytism as the manifestation of religion or belief and proselytism as expression may seem formal, there can be pr actica l r amifica tion s t o the design ation as on e or the other. First, th at branch of proselytism where t he source is motivated by a desire t o convince the target to change her religiou s beliefs, but not adopt n ew ones, does not fall easily with in the notion of the manifestation of religion or belief because the source does not necess arily have r eligiou s beliefs of her own . Secon d, categorizing proselyt ism as expression relieves the exa min er from the t ask of deter min in g wh et her or not the beliefs asserted by the source a re “religiou s,” or whether proselytism falls wit hin the scope of religiou s fr eedom . Third, different results might be reached concerning the same conduct if the legal principles and standards employed to review the manifest at ion of religion differ from those governing expression.74 Although this requir es a close exa mination of th e particulars in any given legal system , a n exa mple ca n be found in international instruments. While th ese instruments recognize that th e protection of national secur ity is a valid
73. Mu rd ock v. P en ns ylva ni a, 319 U. S. 1 05, 108 -09 (1 943 ) (footnote s om it te d). 74. An issue of this type is reflected in the United States Supreme Court decis ion in Employment Division v. Smith, 494 U.S . 872 (1990 ), wh er e t he Cou rt determ ined tha t “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicab ilit y on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes ).’” Id. at 879 (quot ing U nit ed St at es v. Lee , 455 U.S . 252, 263 n .3 (1982) (involving the religiously-motivated use of peyote by m embe rs of th e Na tive Ame ri can Chu rch)). The Cour t r ecognized, h owever , th at prior cases (including those discussed supra Part II.C.1) held that the First Amendment ba rr ed t he ap plica tion of a neu tra l law of general applicability, but that t hese cases involved “the Free Exercise Cla us e in conju nct ion w ith oth er cons tit ut iona l pr ote ction s, su ch a s fr eed om of spee ch or of th e pr ess.” Smith, 494 U.S. at 881. Therefore, under curren t Un ited Stat es precedent, if proselytism were viewed only as a manifestation of th e free exercise of religion, it might be subject to a different set of standa rds th an if it were viewed as a ma tt er of freedom of speech or of th e pre ss as well. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
280 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 interest that may supp ort a lim it ation on the r igh t to freedom of exp ression,75 they do not list national security as a just ifica tion for limit ations on the freedom to manifest religion .76
3. Con clu sion Determining th at proselytism is encompassed with in eith er the freedom to man ifest religion or belief or the righ t to freedom of exp ression does not mean that it can not be restricted. However, such a determination establishes a presumption in favor of permitting proselytism, and any restriction mu st meet t he r equirem ent s laid down in international instruments. Th er efor e, t he va lid it y of lim it ation s on proselytism turns on the existence of overriding interests, articulated on behalf of the state, either in the protection of society in gen er al or in the protect ion of the rights of others. Equ ally important, th e limitations must sufficiently further those interests.77 These rights and int erests are discussed in the following sections.
B. The Rights of th e Target The protection of the rights and freedoms of others is a recognized gr ound for lim it in g t he fr eedom to ma nifest religion or the fr eedom of exp ression.78 Thus, the source may be limited in order to protect the rights of the target to main tain a religion and be free from injury or offense t o religious feelings. However, limiting the source may also restrict th e target as the target is entitled to the freedom to change religion and the
75. See ICCP R, supra note 24, art. 19 (3)(b); Eur opean Conven tion, supra note 24, ar t. 1 0(2); Am er ican Con ven tion , supra not e 47 , ar t. 1 3(2)(b); African Charter on Human and Peoples’ Right s, J un e 27, 1981 , ar t. 27(2), reprinted in 21 I.L.M. 59 (1981) [he re in aft er Afri can Ch ar te r]. 76. The Human Rights Comm ittee ha s not ed th is in Gen eral Com m ent on Article 18, supra not e 48 , ¶ 8: “The Committee observes that paragraph 3 of art. 18 is to be strictl y interpr eted: restr ictions are not allowed on grounds not specified there, even if they would be allowed as restr ictions to other rights protected in the Covenant, such as n at ional secur ity.” Id. 77. See id. ¶ 8; Hu man Rights Comm itt ee, General Comm ent 10 (art. 19), U.N. GAOR 19t h S es s., ¶ 4, U .N . Doc. HR I/G EN /1/Rev. 1 a t 1 1 (19 94). 78. See ICCP R, supra not e 24 , ar t. 1 8(3); E ur opea n C onve nt ion, supra note 24, art. 9(2); American Con vent ion, supra note 47, ar t. 12(3); African Ch arter , supra note 75, art . 8. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 281 freedom to receive in formation . Th ese con siderations can move a state in contradictory directions.
1. The freedom to change religion There is some controversy in the international community over the question of wh et her or not the r igh t to freedom of religion en compa ss es the fr eedom to change r eligion .79 Although this freedom is explicitly recognized in the Universal Decla ration , the European Con ven tion , a nd t he Am er ica n Con ven tion ,80 th e ICCPR adopted a r elat ed, but different, formulation: “No one shall be subject to coercion wh ich would impair his freedom to have or to adopt a r eligion or belief of his choice.”81 The Human Rights Committee’s comment on the scope of this provision states that: The Com m itt ee obse rv es th at th e fr eedom to “hav e or to
adopt” a religion or belief necessarily entails the freedom to choos e a religion or belief, including the right to replace one’s current re ligion or belief with another or to adopt atheistic vie ws , as w ell as t h e r igh t t o ret ain on e’s re ligion or be lief.82
In certain countries, the treatment of apostasy overshadows and determines that of proselytism. If aposta sy, i.e., the abandonment or renunciation of one’s religious beliefs, is considered an offense, it naturally follows that proselytism, as the attempt by another to change one’s beliefs, will be prohibited. Certain Islamic states have laws pr ohibitin g a pos tasy from Islam.83 These la ws pur port edly stem from the Shari’a (i.e. the
79. See EVANS, supra note 66, at 238. 80. See Universal Declaration of Human R ights, G.A. Res. 217, U .N. GAOR, a rt . 18 (1948); Eur opean Conven tion, supra not e 24 , ar t. 9 (1); Ame ri can Conven tion, supra note 47, ar t. 12(1 ). 81. ICCPR, supra not e 24 , ar t. 1 8(2). Ov er tim e, r ea chin g a con sensus on this point seem s to be even mor e elu sive. Th e Declar at ion on Re ligious I nt olera nce, a rt . 1(2), ad opt ed th e s am e wordin g a s a rt icle 18(2 ) of the ICCPR but deleted the important phr ase “or to adopt .” See Declar ati on on Rel igiou s Intolera nce, supra note 47, ar t. 1(2). 82. General Comm ent on Article 18, supra note 48, ¶ 5. 83. Islam ic Stat es are n ot the only ones tha t ha ve, or have had, pun ishmen ts for apostasy. According to Blackstone’s Commentary on th e laws of England, apostasy was at one tim e app ar ent ly pun ished by deat h, and in th e seven teen th centu ry a statute was enacted that provided that “any person educated in, or having made pr ofess ion of, the chr istia n r eligion, shall by wr iting, p rin ting, tea ching, or advised D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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law based on t he Qur’an a nd other Isla mic holy writ ings, as well as subsequent jurisprudential interpretation of those texts), an d the approach of th at body of law to the commitment of those t ha t h ave become, or ha ve been born as, Muslims: The Qur’an vigorou sly denou nces thos e wh o renou nce Isla m ,
for “the Devil ha s sedu ced th em” away from the true faith (67:2 5). The m ajor hist orical exa mple is the revolt of the tribes after Muh am ma d’s death in 632 A.D. Abu Bakr, and jurists since th en , condem ne d se cession from Isla m (ridd a) as doubly heinous: It not on ly is a v iolation of th e com pa ct of su bm ission made with Allah, but it is also a brea ch of cont ra ct with his represent atives on ea rt h. It is, t hen , an offen se bot h agains t God and against t he state: it is bot h ap ost as y a nd t re as on. Fa r from having the right t o becom e a non -Mu slim , th e Mus lim faces the death penalty as a sanction for such a change.84
spea king, deny the chr istian r eligion to be true, or the holy scriptures to b e of divine au th orit y,” was, for s uccessive violat ions, ine ligible to hold a public office, incapable of bringing a legal a ction or pur chas ing la nd, a nd im pris oned for th ree year s. 4 WILLI AM BLACKSTONE, COMMENTARIES *44. Nepal ap pa re nt ly h ad , un til re cen tly , a p roh ibit ion on ap ost as y th at ap plie d t o all religions. Art icle 19(1) of th e Con st itu tion of th e Kin gdom of Nepal provides that “Every pers on sh all ha ve the freed om t o pr ofess an d pr act ice h is own re ligion as han ded down t o him fr om an cient t imes ha ving due regard to the traditional practices: Provid ed th at no pe rs on sh al l be en ti tl ed to conver t t he re ligi on of an y per son.” NEPAL CONST. ar t. 19(1), reprinted in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Blaustein & Flanz eds., 1987). Apparently, a person is no longer prohibited from cha ngin g th eir r eligion by virt ue of th eir own free will, as a law penalizing self-convers ion wa s re pea led in 1992. See Kusum Shr est ha , Fundam ental Rights in Nepal, 15 ESS AYS IN CONSTITUTIONAL LAW 1, 21 (1993) (citing Amendment to se cti on 1 of t he cha pt er on Mis cell an y of t he code of th e cou nt ry in 199 2). 84. David Litt le et. al., Hum an Righ ts and th e World’s Religions: Christianity, Islam and Religious Liberty, in RELIGIOUS DIVERSITY AND HUMAN RIGHTS, 213, 215 (Irene Bloom et al . ed s., 199 6). In the Declaration on the Rights and Care of the Child in Islam of the Islamic Conference, th is p rohi bit ion on ap ost as y is note d in Art . 8, which addresses the right to education: While Isl am guar an te es M an ’s freed om t o volu nt ar ily a dopt Isl am wit hou t comp uls ion, it pr ohibi ts ap ost as y of a Mu slim a fte rw ar ds , in view of th e fa ct that Islam is th e Sea l of Religions and , therefore , the Isla mic society is committed to ensur ing tha t th e sons of Muslims preserve their Islam ic nature and Cr eed and t o protecting them a gainst a ttem pts to force them to relinquish their religion. Declar ati on on the Rights and Care of the Child in Islam, U.N. GAOR, 50th Sess., Item 28, Annex I: Res. 16/7-C (IS), at 269, U.N. Doc. A/50/85/S/1995/152 (1995) [hereinafter Child in Islam]. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The enforcement of rules prohibiting apostasy in Islam ic countries may vary, but in recent years at least a few states have sought to invigor ate them and have defended them as consistent with international human rights standards. For example, Mauritania apparently has a provision in its Penal Code that imposes a deat h sentence for “any Muslim who abandons his faith and does not repent with in t hr ee da ys.”85 The Mauritanian government has defended this offense an d its penalty as a proper limitat ion (in furth erance of public order and m oralit y) on the r igh t to freedom of religion : The Isla m ic religion, w hich pla ys a n im por ta nt role in the
maintenance of security and stability . . . is an integrated re ligiou s faith and any person who embraces it of his own free will must be assumed to have accepted all its teachings, inclu ding the rules governing apostasy, which stren gthen the foun da tion s of th e societ y ba sed up on it . Apostasy from this re ligion, which guarantees so many freedoms an d so m uch secu rit y, stab ility an d socia l justice, is regarded as high treason and everyone is aware of the penalties th at St at es im pos e for this t yp e of offen ce, w hich threaten s their sta bility and their very existence. While th is r eligion doe s n ot comp el a ny one to em brace it, it does not tolerate duplicity in this respect or apostasy, which are incompatible with its sacrosan ct na ture a s a divinely- revealed religion based on immuta ble principles. The precepts of this religion cannot be changed, since the holy law on w hich it is b as ed com pr ises m ora l pr inciples in which our society believes and any person wh o violates them arouses social indignation. Consequently, apostasy constitutes one of the most serious offences against the public order and m ora lity est ab lish ed by t his r eligion . . . .86
85. Special Rapporteur’s Report 1990, supra note 67, ¶ 60 (quoting a letter addressed to M au ri ta ni a’s gov er nm en t “t ra ns mi tt ed by S pe cia l Ra pp orte ur ”). 86. Im plem ent ati on of th e Declar ati on on t he E lim in ati on of All Form s of In toler an ce an d of Discrim in ati on B ased on Religi on or Bel ief, U.N. ESCOR, 47th Sess ., Pr ovisi ona l Agen da It em 22, C omm iss ion on Hu ma n Rights, ¶ 76, U .N. Doc. E/CN.4/1991/56 (1991) [hereinafter S pecia l R apport eur ’s Report 1991]. A similar view on ap ost as y wa s a ppa re nt ly h eld by Th oma s Aqu ina s, who w rot e that those “who at one tim e accept ed t he F ait h, a nd p rofesse d it; t hey m ust be compe lled, even by physical force, to carry out what they pr omised an d to hold what they once accept ed.” ERIC D’ARCY, CONSCIENCE AND ITS RIGHTS TO FREEDOM 159 (196 1). S ee Litt le et. a l., supra note 84, at 222-23. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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In a society that imposes su ch a high price for apostasy, and claims such a close connect ion between adh er en ce t o the dominant faith a nd social an d political stability (even to the point of threatening the ver y existen ce of t he state), it follows that proselytism—at least proselytism of Muslims by others—will not be tolerated.87 Nonetheless, laws penalizing apostasy are inconsistent with international human rights standards. In those instruments that explicitly recognize the freedom to change religion, at the
87. The Sudan also has a pr ohibition against aposta sy, punishable by deat h, that direct ly prohibits pr oselytism as well. The law encompas ses “every Muslim who propagates for the ren un ciation of th e Cree d of Islam or pu blicly declares his re nu ncia tion thereof by an express statem ent or conclus ive act .” Im plem ent ati on of the Decla rat ion on t he E limination of All Form s of I nt olera nce a nd of Dis crim in ati on Ba sed on R eligi on or Bel ief, U. N. E SCO R, 49 th Ses s., P rovision al Agenda Item 22, Com mi ssi on on Hum an Rights, ¶ 56, U.N. Doc. E/CN.4/1993/62 (1993) [hereinafter Special Rapporteur’s Report 1993] (quoting section 126 of the Sudan Cr iminal Act 199 1). The government of the Sudan has defended this law on the grounds that an Islam ic Sta te sh ould ap ply Isla mic law—or ru les cons ist en t w it h I sla mi c la w—t o problems th at exist wit hin an Islam ic society: Islam is regarded by Muslims not as a mer e religion but as a complete system of life. It s r ul es ar e pr escribed not only t o govern t he in dividua l’s cond uct but also to shape t he ba sic laws a nd pu blic order in th e Mus lim Stat e. . . . For Muslims, Islam provides a total system of life, s ta rt ing even b efor e birth extendin g thr oughout ever y moment of life. Matters such as infant- feeding, child-rea rin g, abort ion, ma rr iage and divorce, lega cy and inheritance, bargains and contracts, war and peace, international relations, the treatment of minoritie s a nd all oth er as pect s of life a re gover ne d in one way or an other by lega l rules in the sources of Islamic law. Furtherm ore, Muslims consider all these aspects as having the same im portan ce as, let us say, r itu al pr ayer an d fast ing. He nce, an y problem which ar ises sh ould be tr ea te d a nd solve d in th e wa y recom me nd ed b y, or at lea st in h ar mon y with, the related rules of Islam. Accordingly, al l a sp ect s of Islamic law should be taken and accepted as a un it, one t otal a nd in divisible syst em. H ence, a posta sy from Is lam is classified as a crime for which ta’zir [disciplinary, reformative and deterr ent] punishment ma y be ap plie d. T he pu ni sh me nt is infl ict ed in cases in wh ich the apost asy is a cause of harm to t he socie ty , wh ile i n t hos e ca ses in wh ich an individua l sim ply ch an ges his re ligion th e pu nis hm en t is not to be applied. But it must be remembered that unthreatening apostasy is an exceptional cas e, and t he common t hing is th at a postasy is accompanied by som e ha rm ful act ions a gain st t he s ociety or S ta te. . . . Ass ur edly, t he protect ion of societ y is t he un der lyin g pr inci ple in t he pu nis hm en t for apostasy in the legal system of Islam. Id. ¶ 56. For a case study on the a pplication of the apostasy law to an important religiou s an d politica l figure in t he S uda n, se e Abdulla hi Ahm ed An-N a’im, The Islamic Law of Apostasy and its Modern Applicability: A Case from the Sudan, 16 RELIGION 197 (198 6). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 285 very lea st , pen al sanction s on apos tasy im permissibly restrict that freedom. In addition, the Human Rights Committee has clear ly stated that: “Article 18.2 [of the ICCPR] bars coercion that wou ld im pa ir the r igh t to ha ve or adopt a religion or belief, including the u se of threa t of ph ysica l for ce or penal sanction s to compel be liever s . . . t o adh er e t o their religiou s beliefs . . . .”88 It does not necessarily follow tha t t he freedom to chan ge religion , th e freedom t o aba ndon religious belief, or t he “right t o replace one’s curren t r eligion or belief with another or to adopt at heistic views,”89 supports the freedom of others to proselytize. In other words, does restricting the a bility t o proselyt ize impair the rights of those who have not expressed a desir e to receive such information? There is no international consensus on the answer to this question. For example, th e Malaysian government has a rgu ed that a pr ohibition on proselyt ism of Muslims by n on-Mu slim s d oes not in ter fer e wit h the a bilit y of Mu slim s t o change t heir religion : If any Muslim desires to seek knowledge about another
religion or even to possess an oth er religion of h is own free will and on h is ow n in itia tive, [la ws pr oh ibit in g p rose lyt ism ] are not capable of deterring him. Those laws are merely aimed at protecting Muslims from being subjected to attempts to conv er t t hem to a noth er re ligion .90
However, as noted above, the European Court has adopted a different view, s tatin g t hat the fr eedom to change r eligion would likely be “a dead letter” if the freedom to manifest religion did n ot in clu de “th e r igh t to try t o convin ce on e’s neighbour.”91 The distinction between these two views lies in the condition s necessary to ensure a person’s freedom to change her religion . Un der one view, t he a bsen ce of any hindrance or penalty on the part of the state is considered su fficient. The other view holds tha t, in order t o truly ensure a person’s right to change her religion , t he state m ay n ot over ly r estrict the source from seeking out targets and attempt ing to deliver
88. General Comm ent on Article 18, supra note 48, ¶ 5. 89. Id. 90. Special Rapporteurs R eport 1990, supra note 67, ¶ 58. 91. Kokkin akis v. G re ece , 26 0 E ur . Ct . H .R. (se r. A) at 17 (1 993 ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
286 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 information relevant to exercisin g that freedom . Th is conflict of views is taken up a ga in in the followin g sect ion .
2. The freedom to receive information The freedom to receive information has been expressed in international instruments as a corollary to the right to freedom of exp ression.92 As stat ed in ar ticle 19(2) of the ICCP R, th e righ t to freedom of expression “shall include freedom to seek[] [and] receive . . . inform at ion and idea s of all kinds.”93 The European Court has noted that the right of a person to “take cognisance” of certain views is im plied in the right to impart those views.94 As wit h the fr eedom to change r eligion , a n im por tant question her e is wh et her the per son exe rcisin g t he fr eedom to receive information must seek it out themselves, or whether that person has some right to be confronted with views that others would like to put before him, which could then be accepted or declined. If the former is the case, th e state may place significant restrictions on the mechanisms used to deliver information, and consequently will d et er min e t he in formation with which people will be confronted. Under the lat ter viewpoint , the state cannot usurp from potent ial receivers of information the power to determ ine t he in forma tion with which they will be confronted; th us th e stat e will be limited in its abilit y to restrict the delivery of information, even to those who ha ve not expressed a desir e to receive it. An exam ple of this latt er view is found in the ca se of Martin v. City of Struthers,95 in wh ich the United States Supreme Cou rt invalidated a statute that made it unlawful for a person to summon the occupant of a residence to the door for the purpose of distributing a handbill, circular or advert isement.96 The Court noted that the freedoms of speech and of the press
92. See ICCP R, supra note 24, a rt . 19 (2); Eur opean Conven tion, supra note 24, art. 10 (1); America n Con vent ion, supra note 47, a rt. 13(1); African Cha rt er, supra note 75, art. 9. 93. ICCPR, supra note 24, ar t. 19(2) at 374. 94. See Ot to-P re mi ng er -In st it ut v. Au st ri a, 295 Eu r. Ct . H .R. (se r. A) at 20 (199 4). 95. 319 U. S. 1 41 (1 943 ). 96. See id. In this case, a Jehovah’s Witness was convicted under the statut e for dist ribu tin g a lea flet for a religiou s me etin g. See id. at 142. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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“embrace[d] the right to distr ibut e liter at ur e, an d necessa rily protect[ed] the right to receive it.”97 The statute criminalized the dist ribu tion of inform ation rega rdless of t he desir e of the recipient to receive it, and therefore “substitut e[d] the judgment of the community for the judgment of the individual househ older.”98 The Court found that the statute was a “naked restriction of the dissemina tion of ideas” because other legal avenu es were ava ilable 99 — such as the la w of t respa ss — that would “leave[] the decision as t o wh et her dist ribu ter s of literature may lawfully call at a h ome wh ere it belongs — with th e hom eowner h imself.”100 International human rights standards do not lead to a simple solution to this problem. The presumption is on the side of expression, an d the state seeking to restrict expression must just ify t he limit ation . H owever , r estrict ion s on expression must be viewed in ligh t of the circumstances in which they arise, including the extent to wh ich in formation of all k in ds flows freely within a society. For instance, if people are cont inu ally confronted wit h in formation design ed to in flu en ce t heir polit ica l opinion s, th eir m oral values, and even their consumer choices, it might be inconsisten t t o other wise overly restrict information designed to influence their religious choices. Such may be the case in European and American democracies. On the other hand, in societies where in forma tion is generally restricted and people mu st seek it out ra th er t ha n be confronted by it, it may be more pr oble matic t o allow in formation on religion to flow freely. Although generally restrictive policies on free exp ression cannot, in themselves, support further restrictions, it should be left open to states to articulate the sp ecific harm that could result from the confrontation occasioned by unsolicited exp ression.
3. The freedom to h av e or m ainta in a religion While the freedoms to change religion and to receive information may support the freedom to proselytize, other
97. Id. at 143 (cit at ion om it te d). 98. Id. at 144. 99. Id. at 147. 100. Id. at 148 (referring to a pr oposed ordinance that would make it illegal to ap pr oach th e h om e of a pe rs on wh o has in dica te d t ha t s olici ta ti on is u nw elcom e). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
288 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 rights an d freedoms ma y support a restr iction on proselytism. In Kok kin ak is v. Greece,101 Greece successfu lly argu ed to the European Court that a restriction on proselytism can, in theory, be sust ained as an effort to protect the right of the target to the peaceful en joym en t of their freedom of religion . H owever , for such a r estriction to be a valid lim it ation on t he r igh t of th e source to manifest their religion, the Court ruled that particular cir cumstances must be present that render the proselytism “improper.” In the Kokkinakis case, the European Court examined the conviction of a J eh ova h’s Wit ness, Min os Kokkin akis, for a violation of a Greek law criminalizing proselytism. Article 13(2) of the 1975 Greek Constitution provides, in relevant part: “There shall be freedom to practise any known religion ; individua ls shall be free to perform their rit es of worship without hin dr ance a nd u nder the protect ion of the law. The performance of rites of worship must not prejudice public order or public mora ls. Proselytism is prohibit ed.”102 The term “proselytism” as used in the Greek Con stitu tion was defined in the statutory enactments of the late 1930s that made proselytism a criminal offense: 2. By “pr oselytis m ” is m ea nt, in pa rt icular, a ny dire ct or
in dir ect attempt to in tr ude on th e r eligious be liefs of a p er son of a d ifferen t r eligious p er su as ion . . . , with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent m ea ns or by t ak ing a dvan ta ge of his inexper ience, tru st, need, low intellect or n aivety. 3. The com m ission of such an offence in a school or other educational establish m en t or a p hila nt hr opic institu tion sh all constitute a particularly aggravating circumstance.103
Further cla rifica tion on proselytism was given by the Greek courts as follows:
101. 260 Eu r. Ct . H .R. (se r. A) (199 3). 102. GREEK CONST. ar t. 13(2), reprinted in Kokk inakis, 260 Eu r. Ct . H.R. (ser . A) at 11. P re viou s Gr eek cons tit ut ions , beg inn ing in 1 844, cont ain ed a pr ohib iti on against proselytism only wh en ta rgeted a t th e dominan t religion, the Christian Eastern Orthodox Church. See Kokkin akis, 260 Eur. Ct. H.R. (ser. A) at 12. 103. Sect ion 4 of Act 1363/1 938, as am en ded by Se ction 2 of Act 1672/1939, repr in ted in Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 12. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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[P]urely spir itu al t ea chin g does n ot a m oun t t o pr oselytism,
even if it demonstrates the errors of other religions and entices pos sible d iscip les aw ay from th em , wh o abandon their original re ligion s of t h eir ow n fr ee wi ll; t h is is because spiritual teaching is in th e n at ur e of a r ite of wors hip per form ed fr eely and without hindrance. Outside such spiritual teach ing, wh ich may be fr eely giv en , an y det er m ined , im por tu nate attempt to entice dis ciple s a wa y from the dominant religion by means that are u nlawful or morally repreh ensible constitutes proselytism as pr ohibit ed by t he a fore m en tion ed pr ovision of the Constitution.104
The Greek government argued to the European Court that “[t]h e sole aim of [the prohibition on pr oselyt ism] wa s t o pr otect the beliefs of others from activities which undermined their dignit y an d personality,”105 and that such a prohibition was necessary “to protect a person’s religious beliefs a nd dignit y from at tempts to influen ce th em by immoral and d eceitful means.”106 Although not explicitly adopting these arguments, the Court ruled that th e conviction of Mr. Kokkina kis was in pursuit of the le git im ate a im of pr otect in g t he r igh ts of others.107 Furthermore, t he Cou rt went on t o ap pr ove of t he attempt in the Greek legisla tion to develop criter ia t ha t would separate wha t it ter med “Christian witness” from “improper proselytism”: First of all, a dist inction ha s to be m ad e betw een bea rin g
Christian wit ness a nd im pr ope r p ros elytism. The former corresponds to tr u e e va n gelism , [wh ich h as b ee n ] de scr ibe [d] as an essen tial mission and a respon sibilit y of ever y Ch ristia n and every Church. The latt er re pr esen ts a cor ru pt ion or de form at ion of it. It may . . . tak e the form of activities offerin g material or social advantages with a view to gaining new mem bers for a Church or exerting improper pressure on people in distress or in need; it may ev en en ta il th e u se of violen ce or bra inwa shin g; m ore gen er ally, it is not compatible with
104. Supreme Admin istr at ive Cour t, ju dgme nt no. 2276/19 53, reprinted in Kokkinakis, 260 Eu r. Ct . H.R. (ser . A) at 13. Th is cas e was decided prior t o 1975, when th e con st it ut ion al pr ovis ion wa s r evis ed t o en compass all proselytism, rather than only that targeted at Orth odox Christians. 105. Kokkinakis, 260 Eur . Ct. H.R. (ser. A) at 18. 106. Id. at 20. 107. See id. at 20. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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respect for th e fr eed om of th ough t, con science a nd r eligion of others. Scrutiny of [the Greek statute] shows that the relevant crit er ia ad opted b y th e Gr eek legisla tu re ar e reconcilable wit h the foregoin g if a n d in so far as they a re designed only to pun ish improper pr oselytism, which the Court does not have to define in the abstra ct in the presen t case.108
Noting, however, t hat it had not been shown in the Greek courts that Mr. Kokkina kis ha d done anyt hin g improper, t he Cou rt determined th at his conviction was a violation of article 9 of the European Convention.109 Although it is open to other inter pretations, the identification of “improper proselytism” in this case seems to correspon d to the notion of coercion that would impair the freedom to have, or more clearly, to maintain, a religion. The important question that follows is at wh at point can exp ression by one per son work a coercion on an other t o relinquish t heir religiou s beliefs ? Th is qu estion is take n up fu rther in Part V below.
4. Freedom from injury to religious feelings Proselytism ma y fall within the ambit of laws prohibiting blasphemy or the in jury to religious feelings where the exp ression by t he source includes criticism or a n egative portrayal of th e doctrine, script ur es, or founder of a par ticular religiou s tradition. The precise scope of these laws raises
108. Id. at 21. 109. See id. at 50. Accor din g to t he Gr eek Cou rt s, the evidence indicated that Mr. Kokkin akis ha d done t he following: [The Kokkin ak ises] wen t t o the hom e of [the t ar get] . . . an d t old her that they brought good news; by insisting in a pressing m ann er, they gained admittance to the house and began to read from a book on the Scriptures wh ich th ey in te rp re te d wit h r efer en ce t o a kin g of h ea ven , t o eve nt s wh ich had not yet occurred but wou ld occu r, e tc., en cour agi ng he r b y m ea ns of th eir judicious, skilfu l [sic] exp lan at ions . . . t o cha nge h er Or th odox Christian beliefs. [Mr. Kokkin ak is] vis ite d [t he ta rget ] an d a fte r t ellin g her he br ought good news, pressed her to let him int o the house, wher e he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the [J ehovah’s Witn esses ] and be gan to read out pa ssa ges from H oly Scripture, wh ich he skilfully [sic] analysed. Id. at 8-9. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 291 sensitive issu es, a s a n attem pt to change a person ’s religiou s beliefs will at times include some ar gum ent as to what is in correct or undesirable about those beliefs. These types of laws can be used t o su pp ress t he expression of religiou s beliefs or opinion s on religious issues that are perceived to be incorrect by or are unpopular with adherents of other religiou s groups , particularly the dominant group. It is to prevent th e dissemination of a faith in a ma nner
offensive to others that special laws, such as laws aga inst blasph emy, have been enact ed . . . . Un fort unat ely, in som e cases th e la ws again st blasph em y h ave been fra m ed in such a ma nner that they characterize any pronouncement not in conform ity with the predom inan t fa ith as bla sp hem ous. . . . [They] have sometimes been u sed to limit undu ly — or even to prohibit altogether — th e dissemination of beliefs other than those of the predominant religion or ph ilosophy.110
Blasphemy and injury to religious feelings are closely related. Blasphemy has been described in general as: pu rp osely usin g w ords concer nin g G od ca lcula ted and
designed to impair and destroy the reverence, respect a nd confide nce due to Him as the intelligent creator, gove rn or, and judge of th e w orld . . . . It is a willful and malicious attempt to lessen men’s reverence of God by den ying H is exis tence, or H is attr ibutes as an inte lligent cr ea tor , govern or, a nd ju dge of m en , an d t o pr event th eir having confidence in Him as such.111
It follows that one purpose of prohibitions against blasphemy is to protect adherents of religious beliefs in t heir own feelings about th ose thin gs tha t a re sacred to them. In t his regar d, the European Com mission ha s det erm ined th at th e “main purpose” of the English common law offense of blasphemous libel is “to protect the rights of citizens not to be offended in their religiou s feelings.”112 There are, however, important distinctions between the concepts of blasphemy and injury to religious feelings. Blasphemy stat ut es, for exa mple, do not necessarily pr otect a ll
110. KRISHNASWAMI STUDY, supra note 8, at 35. 111. BLACK’S LAW DICTIONARY 216 (4th ed. 1968) (quotin g Com monwea lth v. Kneeland, 20 P ick . (Ma ss .) 20 6, 2 11, 212 (183 8)). 112. Gay News Ltd. v. United Kingdom, 5 Eur . H.R. Rep. 123, ¶ 11 (1983) (Commi ssi on re por t). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
292 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 persons from in jury to religious feelings. In the leading modern En glish case on blasph emous libel at comm on law, Lord Scarman crit icized the bla sp hem y la w on the gr ounds that it did not sufficiently protect the religious feelings of all in a plura l society: I do n ot s ubscr ibe to t he vie w t hat th e com m on la w offen ce of
bla sp hem ous libe l se rves n o u se ful purpose in the modern law. On the contrary, I think th ere is a cas e for legis lation extending it to pr otect th e r eligiou s b eliefs an d feelin gs of n on- Christians. Th e offence belon gs t o a gr oup of crim ina l offen ces designed to safeguard the internal tr an qu illity of th e k ingdom . In an in cre asin gly p lu ra l socie ty su ch as that of modern Britain it is necessary not only to r esp ect t he differing re ligiou s beliefs, feelings and practices of all bu t a lso t o pr ote ct them from scurrility, vilification, ridicule and contempt.113
Laws prohibiting injury to religious feelings broaden th is protection to safeguard all religious beliefs. Add it ion ally, wh er ea s p rotect ion of the in jury t o religiou s feelings ma y be directed toward th e securit y of persons in holding their religious beliefs, and perhaps also to the maintenance of public order, it has been argued th at protection against blasphemy is directed toward maintaining the health of one of the very roots of society. In other words, damage to the dominant religion is equ ated wit h da mage t o one of th e foundational elements of both society and the state. An English court expressed this idea as follows:
113. R. v. Lemon [1979] 1 All E.R. 898, 921-22. The E nglish court s explicitly declined to extend the offense of blasphem y to cover other religions in R . v. Ch ief Metropolitan S tip end air y M agis tra te, ex p art e Ch oud hu ry, 1 All E. R. 3 06 (Q .B. 199 1). In that case, a British Muslim had sought to bring summonses against Salman Rush die an d h is p ub lish er for The S at an ic V erses . The Europea n C omm iss ion determ ined th at th e prot ection pr ovided by En glish blasphe my la w on ly t o th e Ch ur ch of En gland, an d in som e res pects t o Chris tianit y as a w hole , wa s n ot d iscr im ina tion on th e ba sis of re ligion in v iola tion of Art. 1 4 of the Eu ropea n Con vent ion. See Choudhury v. U.K., 12 HUM. R. L. J. 172-73 (1991). The Eu ropea n Cour t did n ot ha ve th is ques tion be fore it wh en it consider ed En glish blasphemy laws in Wingrove v. United Kin gdom , 24 E ur . H .R. R ep. Ct . H .R. 1 , 18 (1 996 ), wh er e t he ap plica nt att acked th e found at ion of th e law of bla sph emy. See id. ¶ 50. In 1994, th e High Cou rt of Lahore apparently ruled that “blasphemy against any proph et of God would be tantamount to bla sph emy a gain st t he p roph et Moh am med .” S pecia l R apport eur ’s Report 1996 A dd .1, supra note 41, ¶ 27. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Indeed, all offences of this kind are not only offences to
God, but crimes against th e law of the land, and are pun ishable as such, inasmuch as they tend to destroy those obliga tion s wh er eby civil s ociety is bou nd togeth er ; an d it is upon this ground that the Ch ris tia n re ligion cons tit ute s p ar t of the law of England. . . .114
There is a strong similar ity between this view and the arguments the Maurita nian and Sudanese governments advan ced in defense of prohibit ions on aposta sy.115 As noted above, proselyt ism can include criticism of the religiou s beliefs of a t arget ; the un successful a tt empt to cha nge those beliefs is t hus likely to cause injury to religious feelings. When states seek to curtail such injury by limiting proselytism, these restrictions m ust be car efully str uctur ed. Legal provisions protecting religious feelings, either denominated as prohibitions of blasphem y or cast in m ore genera l ter ms, can sweep in to their pu rview a lm ost any act of pr oselyt ism if st ates define the offense too broadly. Specifically, states must carefully consider the level of intent necessary t o commit the offense and the per spective from which the offensive acts must be viewed. As to the former, if any attempt to convince someone that her religiou s beliefs are worthy of replacement satisfies the intent requirement of a stat ut e pr ohibit ing in jury to religious feelings, th e application of the la w to proselytism will be quit e br oad. As to the latt er, if the offense is viewed from the subjective per spective of th e a ctual target or from the point of view of a “typical” adh er en t to the be liefs of either the source or the target, th e application of the la w may be bia sed a nd s ubject to abuse. A 1960 case from Pakistan illustrates these problems. In Punjab Religious B ook Society v. S tate,116 the High Court of Pakistan reviewed the gove rnmen t’s seizure of a book that was alleged to violate a law prohibiting in jury t o religiou s feelings.117 Th e la w—sect ion 295 -A of the Pakistan Penal
114. Choudhury [1991] 1 All E.R. at 313 (quoting R. v. Williams [1797] 26 State Tr. 654 , 71 4). 115. See supra notes 86-87 an d accompa nyin g text . 116. [1960] P. L.D . 62 9 (W. P. ) La hore 631 (Pa k). 117. The Pen al Code of Pa kist an now conta ins a nu mber of offences relat ing to re ligion tha t could operate as r estrictions on proselytism. These in clude performing D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Code—was adopted in 1927 during British rule, and applied to all religions: Whoever, with deliberate and malicious intention of outraging
the re ligiou s fe elin gs of an y cla ss [of the citizen s of P akist an ], by words, either spoken or written, or by visible represen tations, insults or attempts to insult the re ligion or the religious beliefs of th at class , sh all be pu nis he d w ith im prisonment of eit her de scr ipt ion for a te rm wh ich m ay ext en d t o tw o yea rs , or w ith fine , or w ith bot h.118
According to the report of th e case, the Ur du tr an slation of a book writ ten by a German missionary nam ed Rev. C.G. Fander had been distributed in Pakistan since 1891. The book was clearly an act of proselytism, as it was described as a “comparison between Is la m and Christia nit y” an d t he “object of the author . . . was t o sh ow t hat Ch ristia nit y wa s a true r eligion and Islam was not.”119 The validity of th e book’s seizur e depended on whether or not its publication was punishable under section 295-A. Thus, the central question was whether the intention of the author met the requirements of the statute. On this point, the High Court of Lahore addressed the inevit able conflict between persuasion in religious beliefs and injury t o religious feelings: Now, it will be noticed that the intention contem plated by
section 295-A of the Pakistan Pena l Code is not ju st the ordinary intention that one finds mentioned with regard to almost all other offences made punishable by that Code but a deliberate and malicious intention to do the thing mentioned therein. It ap pe ar s t o m e t hat in sect ion 295-A of the Pakistan
acts or utt ering words inten ded to outrage or wound the r eligious feelings of others (secs. 295-A and 298); bla sp he my ag ai ns t t he Holy P roph et Mu ha mm ad (se c. 29 5-C); defiling a cop y of the H oly Quran (sec. 295-B); making derogatory stat ement s concerning other Muslim holy per sona ges (sec. 298-A); an d a var iet y of pr ohib iti ons on pers ons of the religious group known as Ahma dis, inclu ding “propa gation of [their ] faith, or invit [ing] other s to a ccept [th eir] faith ” (secs. 298-B and 298-C). See 1 ABDUL HALIM, THE PAKISTAN PENAL CODE WITH COMMENTARY 637-4 8 (4t h e d. 19 89). F or fur ther inform at ion on r estr ictions a gainst t he Ahm adis, a group th at proclaim s itself to be M us lim bu t t ha t s ome Mu sli ms cons ide r h er et ica l, see Com mi ssi on on Hu ma n Rights, S pecial R apport eur’s Report 199 6 Ad d.1, supra note 41, ¶¶ 9, 13, 21, 41-44. Som e of these crimin al pr ovisions wer e adopt ed du rin g Brit ish rule while others were added durin g the Isla micization campa ign of President Zia-ul-Haq in th e 1970s and 1980s an d of Prime M inist er N awa z She rif in t he 1990s. See id. ¶¶ 10-16. 118. 1 HALIM, supra note 117 , a t 6 40 (a lt er at ion in origin al ). 119. Punjab Book Society, P.L.D. at 631. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Penal Code th e Le gisla ture hedged “intention” with “deliberately” and “maliciously” because it was pr ovidin g punishment for in su ltin g or at te m pt ing to insu lt t he r eligion or re ligiou s be liefs of a pe rson an d it is w ell-known th at wh en followe rs of a r eligion try to show that th eir religion is the best in th e wor ld, word s which will n ot be pa lat ab le to the followers of oth er religions ar e difficult t o avoid an d if it were not made necessary that the intention to do the things mentioned in the section should be d elibera te an d m aliciou s, th e door wou ld have been closed on all re ligiou s d iscu ssions. . . . H owe ver , th e law s of Pa kista n, lik e those of every other civilised coun tr y, do not forbid religious dis cussion s a nd pr ea chin gs a nd I sh ould think tha t if a law attem pted to put a gag on th ese things it will be a tt em pt ing to a tt ain the impossible because it will be wanting to deny hu ma n beings the satisfaction they want to get from sh owin g to as many peop le a s the y can th at at lea st in matters which are n ot mundane th ey have m ade th e best choice. . . . It is clear that in the attempt to show that a particular religion is better tha n th e others, th ings ma y be said or written which will outrage the religiou s feelin gs of followers of oth er re ligion s. When a p er son doe s t hat , the law will presume that h e in te n de d t o in su lt re ligiou s b eliefs of th e followers of oth er re ligion s. But e ven so t he ingr ed ien ts of section 295 -A of th e P ak ist an Pen al Cod e w ill n ot have been satisfied beca use th ey ca n be s at isfied on ly if it is established that the intention to insult the religious beliefs was deliberate and malicious. When the thing objected to on the ground that it outrages the religious feelings of others is extrem ely offen sive a nd h as n o re lia ble sou rce to ju st ify it s a ccep ta nce a s corr ect , the Court will presume that it was done with the deliberate and malicious intention of insultin g the r eligious beliefs of the followers of the religion to which or the founder of which the thing relates. The sam e presu mption will be raised wh en th e thin g objected t o ind icates that the argument in favour of on e r eligion has su nk t o the leve l of ab use of another.120
Furthermore, the Court caution ed that the per sp ect ive from which the a ction wa s t o be ju dged wa s t hat of a n eut ra l person of normal susceptibilities: “a person who is neith er connected with th e religion of the person who is alleged to have outraged the religiou s feelings of som eon e n or wit h that of the person or
120. Id. at 637-38. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
296 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 persons whose religious feelings are stated to have been outra ged.”121 Although the content s of the book exhibited an intent to out ra ge th e religious feelings of Mu slim s, the Court found that it could not be sa id to have gone so far as t o be deliberate and malicious.122 Are the danger s identified by t he P akistani Cou rt recognized in international standards as well? The European Cou rt has on two occasions a ddr essed wheth er la ws pr ohibiting blasphemy and the injury to religious feelings were consistent with article 10 of the European Convention protecting free expression . Although these cases did not involve proselytism, they do a rticu la te ge ner al prin ciples that wou ld pertain to the application of these laws to proselytism.123 In Wi ngrov e v. Un ited Kingd om ,124 the European Court considered the Englis h common law of blasphemy as it was applied by the British authorities to prohibit the distribution of an original video work, entitled Visions of Ecstasy.125 The English courts had defined blasphemy as follows: Every pu blica tion is said t o be bla sph em ous wh ich
cont ains an y con te m pt uous, r eviling, scu rr ilou s or ludicr ous ma tter re latin g to God , J esus Chris t or th e Bible, or t he form u la ries of th e Chur ch of England as by law established. It is not blasphem ous to speak or publish opinions hostile to the Christian religion , or to de n y t h e e xis te n ce of G od, if th e pu blica tion is cou che d in de cen t a nd t em pe ra te langu ag e. The test to be applied is as to the manner in which the doctrines are advocat ed and n ot to the substance of the doctrines them selves.126
121. Id. at 638. 122. See id. at 639-40. 123. The European Comm ission has indicated th at pr ohibitions on blasphemy could be app lied to m an ifesta tions of religious belief. Gay News, 5 Eur. H.R. Rep. ¶ 13 (“Even assum ing tha t t her e ha d in fact been a n in ter feren ce with the applicants’ rights un der Art. 9 , it wou ld ha ve been just ified un der Article 9 (2) on . . . th e same grounds as th e r es tr ict ion of th e a pp lica nt s’ freedom of expre ssion u nder Article 10(2 ).”). 124. 24 Eu r. H. R. R ep . 1 (1 996 ). 125. The video depicted th e ar tist ’s explicit conception of the ecstatic visions of Jesus Chr ist b y St. T ere sa of Avila. See id. at 5-13. 126. Id. at 14 (emph asis a dded) (quotin g ar t. 214 of Stephen ’s Digest of th e Criminal La w (9t h e d. 1 950 ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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In th e view of the Eu ropea n Court , the int erference with free exp ression resulting from the law of blasphemy was in furtherance of “the protection of ‘the rights of others’ . . . . It is also fully consonant with the aim of the protections afforded by ar ticle 9 t o religious freedom.”127 In determining that there had been no violation of article 10 resulting from the restrictions on the video, the Court first noted that a less exacting level of international scrutiny was appropriate for restrictions on expression that could offend moral or religiou s convictions than for restrictions on “political” speech: Whereas the re is lit tle s cope u n de r Ar ticle 1 0(2) of th e
Con ven tion for r estr iction s on politica l sp eech or on de ba te of qu estion s of public interest, a wider margin of appreciation is gen er ally availab le to t he Con tr act ing St at es w he n r egu lat ing freedom of expr ess ion in relat ion t o mat ters liable to offen d intimate pe rs onal conv iction s within the sphere of morals or, especially, religion. M oreover , as in t he field of m ora ls, an d perhaps to an even greater degree, ther e is no uniform European conce pt ion of th e r equ ire m en ts of “the pr ote ction of the rights of others” in relation to attacks on th eir re ligiou s convictions. What is likely to ca use substantial offence to persons of a particular religious per sua sion will vary sign ifican tly from time to time and from place to place, esp ecially in an er a ch ar act er ised b y a n eve r g row ing a rr ay of faiths and denomina tions.128
The Court then found that because the English law of blasphemy “does not prohibit the expression, in any [possible] form, of views hostile t o the Chr istian religion,” or necessarily “opinions which are offensive t o Christian s,”129 “the reasons given to justify the measures taken can be considered as both relevant an d su fficient for t he purposes of Article 10(2).”130 In the case of Otto-Preminger-Institut v. Austria,131 the European Cou rt add res se d a n Austria n la w design ed to pr otect injury to religious feelings. The law provided:
127. Id. at 28. 128. Id. at 30. 129. Id. at 31. 130. Id. 131. 295 Eu r. Ct . H . R. (s er . A) (19 94). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Wh oever , in cir cum stan ces w he re his beh aviour is like ly
to arouse justified indignat ion, dis pa ra ges or in su lts a p er son who, or a n ob ject w hich , is an ob ject of ven er at ion of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of su ch a church or religious commun ity, shall be liable to a prison sen te nce of up to six month s or a fine of up to 360 daily rates.132
The law was a pp lied t o seize a film entitled Das Liebeskonzil (“Council in Hea ven ”).133 In the cou rse of it s d ecis ion , t he Court explained how criticism of a religion migh t in ter fere wit h a n adh er en t’s righ t to freedom of religion : Those who choose to exercise the freedom to manifest
their religion, irresp ective of whether they do so as members of a re ligiou s majority or a m in ority , cannot r ea son ably exp ect to be exe m pt from all crit icism . They m ust tolerate and accept the denial by others of their religious beliefs and even the pr opa ga tion by othe rs of doctr ine s h ostile to t he ir fa ith . However, the manner in which religious beliefs and doctrines are opp ose d or de nied is a m att er wh ich may engage the responsibility of the State, . . . guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extrem e cases the effect of particular methods of opposing or d en ying re ligion s beliefs can be su ch as t o in hibit th ose wh o h old s uch be liefs from exe rcis ing their fre ed om to hold and express th em. . . . The respect for the religious feelings of believers as guar ant eed in Ar ticle 9 ca n legitima tely be th ought to h ave been violated by pr ovoca tiv e p ort ra ya ls of obje cts of re ligiou s ven er at ion; and su ch p ort ra ya ls ca n be r ega rd ed as m alicious viola tion of th e spir it of tole ra nce, w hich must also be a feature of democrat ic society.134
The Court determined that the seizure of t he film did n ot violate article 10 of the European Convention because the Austrian Courts could reasonably determine that seizure was
132. Section 188 of Aust ria n P ena l Code, repr in ted in Otto-Prem in ger, 295 Eur. Ct. H.R. (Ser. A) at 12. 133. See Otto-Prem in ger, 295 Eu r. Ct . H.R. (Ser . A) at 8-9. According to the report of the case, the film was based on a play written by Oskar Panizza that was published in 189 4. P an izza wa s la te r i mp ri son ed b y a Ger ma n cou rt for “cr imes against religion,” an d th e play wa s ban ned in Germ an y. Id. at 11. 134. Id. at 18. The dissenting judges opposed the id ea th at th e r igh t t o fre edom of religion encom pas sed t he p rot ection of religious feelings from in jur y. See id. at 24 (Palm, Pe kk an en an d Mak ar czyk , J J ., d iss en ti ng ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 299 necessary to pr otect the r eligiou s p ea ce in the district in wh ich it was going to be shown.135 In bot h Wingrove and Otto-Preminger-Institut, it was the manner in which the m essa ge w as d eliver ed, a nd n ot the content of the m essa ge, that im plica ted a restrict ion on the freedom to deliver it. Any harm resulting from the subst ance of a message must generally be toler ated in respect of th e different views that make up a plura listic society.136 Harm resulting from the method of its delivery, however, may be limited through r estrictions wh en t he m an ner of expression is extrem e enough. As the European Court recognized in the Otto- Preminger-Institut case: Subject to pa ra grap h 2 of Article 10, it is applicable not only to
“information” or “ide as ” that ar e fa vou rably r eceiv ed or regarded as inoffensive or as a matter of indifference but also to t hose th at sh ock, offen d or dis tu rb th e S ta te or a ny se ctor of the population. Such are the demands of that pluralism, tolerance an d br oad m indedness without wh ich there is no “democratic society.” However , as is bor ne out by t he wor din g its elf of Article 10 § 2, whoever exercises the rights and freedoms enshrined in the fir st par agraph of that Article undertakes “duties and re sp onsibilities.” Amongst them — in the con te xt of re ligiou s opin ions and beliefs — may legitimately be included an obliga tion to avoid as far as possible expressions that are gratu itously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of pu blic deba te cap ab le of fur th er ing pr ogre ss in hu m an affairs.137
135. See id. at 20-21. 136. An exception to this principle may be fou nd in the obligat ion to pr ohibit “[a]n y advocacy of national, racial or religious hatred t hat constitutes incitem ent to discrimination, host ilit y or violen ce” a s p rovid ed in ar ti cle 2 0(2) of the ICCPR. See also Gen eral Com m ent on A rt icle 1 8, supra not e 48 , ¶ 7 (“[N]o ma nife st at ion of religion or belief may amoun t to . . . advocacy of national, racial or religious hatred that constit ut es incit emen t t o discrim ina tion , hos til ity or vi olen ce.”); Race Con ven tion , supra note 56, ar t. 4; Ame rican Conven tion, supra note 47, ar t. 1 3(5); Copen ha gen Docu m ent , supra not e 58 , ¶ 40; Ca iro Decla ra tion on H uman Right s in Is lam , Aug. 5, 1990, a rt . 22(d), repr in ted in U.N . GAOR, 4th Sess ., Agenda Item 5, U .N. Doc. A/CONF.157/ PC/62/Add. 18 (1993). Where th e content of proselytism includes exp re ssi on tha t falls within th e ambit of these provisions, the State ma y be obligated to act to prohibit such expression. 137. Otto-Prem in ger, 295 Eur . Ct. H.R. (ser. A) at 19. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The European Court appea rs willing to leave t o the discret ion of stat es—in light of conditions t ha t m ay exist in each—to determine at what point the manner of expression so overwhelms the messa ge th at th e righ t of others to hold contrary views has been violated. One factor that may be considered by a state in its exercise of this discr et ion is the a pp ropr ia te per sp ect ive from wh ich to view th e alleged offense or in jur y to religious feelings. The Austrian government in th e Otto-Preminger-Institut case had argued that the seizure of the film was necessary, in part, because of th e fa ct that a vast majority of the residents of the area wh er e t he film wa s t o be sh own were Roman Ca tholic. 138 The Court accepted that this could be used as a factor, without specifically addr essing the need to view these situations in an objective manner: The Court cannot disregard the fact that the Roman
Catholic religion is th e religion of the over wh elm ing m ajor ity of Tyrolea ns. In seizing the film, the Austrian authorities acted to ensure religious peace in tha t region and to prevent that som e p eop le s h ou ld feel th e ob ject of att acks on their re ligiou s beliefs in a n u nw ar ra nt ed a nd offensiv e m an ne r. It is in th e fir st pla ce for th e n at ional au th orit ies, wh o ar e better placed tha n th e international judge, to assess the need for such a m ea su re in th e ligh t of t he situ at ion obtain ing locally at a given time.139
In contrast, the United States Supreme Court has taken the view that the state m ay n ot legit im ately pr ohibit “at tacks u pon a particular religious doctrin e,”140 because of the inherent difficulty in adm in ister in g such a pr ohibition without favoring certain groups over others. In Joseph Burstyn, Inc. v. Wilson,141 the Supreme Court struck down a New York law that prohibited the commercial showing of motion pictures that were determined by s tate officials to be “sacrilegious.” The term “sacrilegiou s,” as used in the statute, was interpreted by New York ’s highest court to mean th at “no religion, as th at word is un derstood by the ordinar y, rea sona ble per son, sh all be treated
138. See id. at 20. 139. Id. at 21. 140. Joseph Bu rs ty n, In c. v. W ils on, 34 3 U .S. 495 , 50 5 (19 52). 141. Id. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 301 with contempt, mockery, scorn and ridicule.”142 The Supreme Cou rt noted the difficu lt y in app lying t he defin it ion of “sacrilegious” in an objective manner: In seekin g to ap ply th e br oad an d a ll-inclusive de finition of
“sacr ilegious” given by the New York courts, the censor is set adrift up on a bou nd less sea am id a m yriad of conflicting currents of religiou s view s, wit h n o charts but th ose provided by the m ost voca l and p owe rfu l oth odoxies. New York can not vest such unlim ite d r estr aining con tr ol . . . in a ce nsor . . . . Under such a standard t he m ost car efu l and t oler an t ce nsor would find it virtually im pos sible t o av oid fa vor ing on e r eligion over an oth er , an d h e wou ld be su bject to a n in evitable tendency to ban the expression of unpopular sentiments sacred to a r eligious m inorit y. . . . It is n ot t he bu sin ess of governmen t in our nation to suppress real or im ag ined at ta cks upon a part icular religious doctrine.143
5. The right of persons belonging to religious minorities to maintain their religious traditions and identity As rela ted above, one of t he purpos es of th e protection of the rights of person s belonging to religious minorities is to ensure the “sur vival and continued development ” of their part icular religiou s iden tit y.144 Stat es may take “positive measures” necessary to furth er t his goal.145 Th is raises the question of whether proselytism target ed at a min orit y gr oup in da nger of losing their r eligious identity may be justifiably restricted. The loss of identity through successfu l con ver sion effor ts cannot, with out more, ren der proselytism a violation of the rights of person s belon gin g t o a religiou s minority. Su ccess in proselyting may only be in dicative of th e fr ee choice of the target. It is the individual’s desir e to maint ain an iden tit y th at triggers protection for tha t identit y.146 This issu e ha s arisen in
142. Joseph Bu rn st yn , In c. v. W ils on, 10 1 N .E .2d 665 , 67 2 (19 51). 143. Wil son , 343 U. S. a t 5 04-0 5 (cit at ion om it te d). 144. General Comm ent on Article 27, supra note 59, ¶ 9. 145. Id. ¶ 6.2. 146. In th is regard, th ere can be significant conflict between individual members of min ority gr oups a nd t he gr oup as a collective body or it s lead ership. See Francesco Capot orti, Spe cial Ra ppor te ur of th e Su b-Com mi ssi on on Pr eve nt ion of D iscr im ina tion and Pr otection of Minorit ies, Study on the Rights of Persons Belon gin g to Eth nic, Religiou s an d L in gu ist ic M in orit ies, U. N. ES COR 32d Sess . ¶ 250 , U. N. Doc. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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connect ion wit h the r igh ts of indigenous peoples, and the protection of those who continue to adhere to their native religiou s beliefs. However, to more fully appr eciate th e situa tion of indigenous peoples, it is necessary to take a step back and consider briefly the process of religious change that attended th e colonial experience. Religiou s change has historically gone hand in hand with international exploration, conquest and colonization, and the resulting polit ica l re-alignments. The attempt to spread European Chr istian ity was a feature of the colonial enterprise in Africa and Asia, a lt hough policies a nd p ractices va ried from imperia l power to imperial power and according to local condition s. 147 The propagation of Christia nit y among the native inhabitants was an attenda nt pu rpos e t o the explor ation , conquest and settlement of the lands of the Wester n hemisphere.148 Like-wise conversion to Islam a ccompanied the
E/CN.4/Sub.2/384/Rev.1, U. N. Sa les No. E. 78. XIV.1 (197 9) [hereinafter Lingu istic Mi nor iti es]. 147. See 2 J USTO L. GONZÁLEZ, THE STORY OF CHRISTIANITY 305 -06 (1 985 ). 148. See The Papal Bull, Inter Caetera (Alexand er VI), Ma y 4, 1493, in DOCUMEN TS OF AMERICAN HISTORY 3 (Henry St eele Comm ager ed., Appleton -Centu ry- Crofts, Inc., 5th ed. 1949) (“We have in deed lea rn ed th at you, who for a long tim e had intended t o seek out and discover certain islands and mainlands remote and unknown and not h ith ert o discovered by oth ers, to th e end th at you migh t br ing to the worship of our Redeemer and t he pr ofession of the Cath olic faith their residents and inha bitan ts.”); First Chart er of Virginia, April 10, 1606, in DOCUMEN TS OF AMERICAN HISTORY, supra, at 8 (“We, greatly comm endin g, and gra ciously acceptin g of, their Desires for th e Fur ther ance of so noble a Work, which may, by the Pr ovid en ce of Almight y God, herea fter t end t o the Glory of his Divine Majest y, in propagating of Christian Religion to such People, as yet live in Darkness and misera ble Ignorance of the t ru e Knowledge an d Worsh ip of God, and m ay in tim e bring th e Infidels an d Sava ges, living in t hos e P ar ts , to h um an Civil ity , an d t o a settled an d qu iet Gover nm en t; D o, by t he se ou r L et te rs Pa te nt s, gr aciou sly accept of, and agree to, their hum ble and well-intended D esir es.”); May flowe r C omp act , November 11, 1620, in DOCUMEN TS OF AMERICAN HISTORY, supra, at 15 (“Having under taken for the Glory of God, and Advancement of the Christian Fa ith, and th e Honour of our King a nd Cou nt ry, a Voyage to plan t the first colony in the northern Parts of Virginia .”); The First Cha rt er of Ma ssa chuset ts, M ar ch 4, 1629 , in DOCUMEN TS OF AMERICAN HISTORY, supra, a t 1 8 (“[O]f a ll other Matters an d Thinges, whereby our sa id People, . . . may be soe religiously, peaceablie, and civilly governed, as th eir good Life an d order lie Conver sacon, m aie wyn n a nd in cite the N at ives of Country to t he Kn owled g an d Ob edi en ce of th e on lie t ru e God an d Sa uior of Mankin de, and the Christian Fayth, which in our Royall Intencon, and the Adventurers fre e P rofes sion, is t he pr in cipa ll E nd e of t hi s P la nt aci on.”). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 303 expansion of Arab empires into North Africa, the Middle East, and Persia.149 An assessment of these event s in term s of the right to freedom of religion of bot h native and n ewcomer is beyon d t he scop e of this study. However , t his history h as s haped t he policy of some sta tes towards proselytism, either in general or with respect to those segments of the population tha t still adhere to native religious beliefs. José R. Mart ínez Cobo, the U.N. Special Rapporteur that studied discrimin at ion against in digenous p opu la tion s, described the conflict between colonizers and natives over religious beliefs and practices in th is wa y: Since the very first contacts between the “newcomers” and
the “natives”, some of their respective religious beliefs and practices came to be expressed by each one of them and perceived by the other. Soon after, with renewed contacts, efforts we re set in m otion by t he “new com er s” to convert the natives to t he ir belief. By t he tim e colonia l ru le was established there was usu ally an ongoing religious struggle. The “colonizer s”, who generally brought with them what they believed to be the only true religion, considered the r eligious beliefs and practices of the “natives” as “pagan”, “gentile”, “heathen”, “idolatr ous”, and soon showed contempt for and intolerance of these beliefs. In most cases this haughty attitude contrasted with the “natives’” sincretism, which meant toler an ce, if n ot a ccepta nce of th e ot her beliefs or re ligion by the “natives”. Often where there w as a r eligious impera tive to catechize an d con ver t t he “paga n” to t he ne wly arr ived “tru e r eligion”, further problems ensu ed often resulting in legal or social pressures amounting to the inte rd iction of th e p ra ctice of th e in digen ous r eligion an d t he de secra tion or destruction of sacred symbols, objects and places, in th e n am e of r eligion an d civiliza tion . A re act ion by the “natives” to reaffirm their own beliefs and religion , particularly in the ligh t of t his a nd ot her not ver y civiliz ed or exemplary beh aviour by t he “colonizer”, wa s n ot lon g in coming.150
149. See IRA M. LAPIDUS, A HISTORY OF ISLAMIC SOCIETIES 51-5 3 (19 88). 150. José R. Mar tin ez Cobo, St udy of the Problem of Discrimination Against Indigenous Populations, U. N. Doc. E/CN.4/Sub.2/1982/2/Add.7, ¶ 48 (1 982 ) [he re in aft er Cobo Report]. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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As a result of the en suing or thr eat ened disorder , some colonial powers began to control access of religious groups to cert ain areas.151 To some subsequently indepen dent peoples, t his exp er ien ce has left a n a mbivalent legacy. On the one hand, there is a measure of acceptance of t he beliefs of the n ewcomer —as “adopted” by th e native inhabitants and as an important part of the culture of the now independent nation. On the other hand, there is a sometimes bitter or painful awareness of the element s of suppression and coercion that led to their adoption. The religiou s p olicies of cert ain indepen dent sta tes reflect t his ambivalence, which has led in some cases to heightened concern with proselytism a nd the activities of foreign missionaries.152 An exam ple of this ambivalence can be seen in the provisions of the Constitution of Papu a Ne w Guin ea , a ter rit ory former ly administered by Australia, adopted at its independence in 1975. The Const itu tion recognizes in its preamble that: “WE, THE PEOPLE OF PAPUA NEW GUINEA . . . pledge ourselves to guard and pass on to those who come after us our noble tr aditions an d the Ch ristia n principles th at ar e our s now.”153 However, Sect ion 45 of t he Con st it ution contains specific qualifications on t he righ t t o freedom of religion with respect to the ability to propagate religiou s views and int ervene in to the r eligiou s affairs of
151. See KRISHNASWAMI STUDY, supra note 8, at 55 n.1. 152. In addition to the example of Papua N ew Guinea described below, see ZIMB. CONST. ar t. 1 9(5)(b) (pe rm itt ing lim ita tion s on the fre edom of re ligion “for th e purposes of protecting the rights an d freedoms of other per sons , including the right to observe a nd pr actise an y religion or belief with out t he u nsolicited intervention of persons professing any other r eligion or belief”), reprinted in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Blaustein & F la nz , ed s., 198 7). 153. PAPUA N.G. CONST. pre am ble, reprinted in Constitutions OF THE COUNTRIES OF THE WORLD, supra note 83. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 305 others.154 The genesis of these provisions has been described as follows: The phr asing of [section 45] represents an at tit ud e, comm on in
Papua New Gu inea, of an acceptance of some Christian principles cou pled with a re se n tm en t of th e a ctivit ies of m an y of the missionar ies who brough t Ch ristia nity t o the coun try. Many Papua New Guineans, though sincere Christians, maintain links with tra ditional practices and beliefs and particularly resent the efforts of some missionaries to suppress aspects of the traditional culture, particularly art-forms and traditional cere m onie s. Th is exp lain s the em ph as is in th e section on the exercise of rights to propagate religious views only to the exten t that th ey do not interfere with the freedoms of others.155
In an effort to avoid the a bu ses of t he past , a number of countries have formulated policies directed at protecting those holding na tive beliefs. These express con cer ns m ay supp ort a restriction on certain aspects of proselytism. The fir st concer n is condemnation or suppr ession of na tive beliefs by state action or by religious groups—in particular, th ose religious groups admin isterin g educational or health care facilities or providing humanitarian assistance in areas where traditional beliefs remain prevalen t. Where proselytism is present in this context, its coercive possibilities are enhanced by a restr iction on the freedom of religion of those adhering t o native beliefs. Th e ext en t to wh ich pr iva te r eligiou s groups
154. See JOHN L. GOLDRING, THE CONSTITUTION OF PAPU A NEW GUINEA: A STUDY IN LEGAL NATIONALISM 233-34 (1978). Section 45 of the Constitution reads: (1) Ever y per son h as t he r ight to free dom of conscien ce, th ought and religion an d t he pr act ice of h is r eligi on a nd beli efs, i nclu din g fre edom to manifest an d prop ag at e h is r elig ion an d be liefs in su ch a way as not to interfere with th e freedom of oth ers . . . . (2) No person s ha ll be comp elle d t o re ceive re ligiou s in st ru ction or t o take par t in a r eligious cerem ony or obs erva nce. . . . (3) No person is e nt itl ed t o int er ven e u ns olicit ed i nt o th e r eligi ous affairs of a per son of a differ en t b elie f, or to attempt to force his or any re ligion (or irreligion) on another, by har assmen t or otherwise. . . . . (5) A referen ce in this sect ion t o re ligion incl ud es a re fer en ce t o th e traditional religious beliefs and customs of the peoples of Papua New Guinea. Id. at 234. 155. Id. at 233-34. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
306 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 ultimately restrict religious freedom under these circumstances depends upon th e extent to which those gr oups dom in ate or control important services. A second concer n is the preve ntion of any exer cise of governmental authority by religious groups in native areas. This pr actice of giving r eligiou s gr oups governmental power was employed in a nu mber of colonial sett ings; in particular, some Latin American countries granted administra tive authority to missionary or ga niza tion s of t he Catholic Church.156 The dangers of this policy are t he poten tia lly coer cive use of governmental authority, or the confluence of governmental and religiou s identity, tha t would exert pressure on those holding other beliefs to ad opt the “official” beliefs. A thir d con cer n is officia l policy based on the notion that a change in religiou s beliefs and p ractices , i.e., t he a doption of th e dominant or another recogn ized r eligion , is in the best interests of the indigenous peoples because it will assist th em in becoming more fu lly in tegr ated or ass im ila ted in to society at large.157 Regardless of t he considerable deba te ove r wh et her or not such efforts at assimilation have been successful, these policies substitute the choice of the state for t he ch oice of t he individua l. In th is rega rd, the Draft Un it ed Na tion s D ecla ration on the Rights of Indigenous Peoples provides that: Indigenous peoples h ave the collective and individual right
not to be subjected to ethnocide and cultural genocide, includin g pre ven tion of an d r ed re ss for: (a) An y a ction wh ich has the aim or effect of depriving them of th eir inte gr ity as dis tin ct p eop les, or of their cultu ra l va lues or e th nic ide ntit ies . . . . .
156. S ee, e.g., Cobo Report, supra note 150, ¶ ¶ 57-58 (reviewing a 1946 Argentinian decree that recommen ded “the establishmen t of missions among the Indians” and declared that “no new religious missions, t emp les or d en omina tion organ iza tion s belon gin g to fa ith s ot he r t ha n t he Rom an Ca th olic Apos talic faith shall be established in national territory for purposes of proselytism among t he In dia ns ”). 157. For an example of a restriction on proselytism in the face of this concern, see State Party Report of Brazil to the Human Rights Committee, ¶ 2 35, U.N . Doc. CCPR /C/81/Add.6 (199 7) (“All ch ur che s a nd de nomi na ti ons a re free to establish places of wor sh ip a nd re ligiou s ed uca tion , though t he Gover nm en t con tr ols a ccess of missionaries to i nd ige nous ar ea s s o as to a void forced accu lt ur at ion .”). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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(d) An y form of as sim ilation or integration by other cultures or ways of life imposed on them by legislative, ad m inist ra tiv e or oth er m ea su re s . . . .158
C. The Interests of the State As wit h the protect ion of the rights and freedoms of the target, a consideration of other interests of the state may support both the freedom to proselytize and its r es trict ion . As already noted, t he prim ary in ter est su pp ortin g t he fr eedom to proselytize is the protect ion of the r igh ts of t he source. In addition, stat es m ay be motivat ed t o grant and protect that freedom if they perceive that benefits from religious freedom, generally, are maximized by free choice and a self-directed populat ion in matters of religion. A state may also hold the view that the r eligiou s p lu ralis m result in g fr om vigor ous competit ion in matters of religiou s belief is an im por tant addition to the overall cultural diversit y of its people. This section, however, will focus primarily on those state interests commonly asser ted to restr ict pr oselytism. These include the protection of a pa rticu la r dom in ant religiou s t radition or dominant political ideology, the preservation of public order, and the regulation of the religious “marketplace” in order to ensure fairn ess an d to encourage informed religious choices.
1. Protection of a dom in an t religiou s tradition or political ideology Rest rict ion s on proselytism can exist within an integrated system of offenses, regulations, policies and pra ctices designed to (1) inhibit conversions from or otherwise protect th e position of the dominant religious group or (2) encourage adherence to the dominant political ideology. Examples of the first type are gener ally found among the Islamic states, where there may exist some or all of the following: prohibitions on aposta sy, expa nsive application of laws against bla sphemy and th e in jur y to religiou s feelings, a s w ell as p rohibition s on proselytism. Closely related to these restrictions are civil and social
158. Draft United Nations Declaration of the Rights of In di gen ous Peopl es, Sub- Com mi ssi on on Prevention of Discrimination and Protection of Minorities, Res. 1994/1995, Aug. 26, 1994, art. 7, U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, repr in ted in RELIGION AND HUMAN RIGHTS, supra note 8, at 133-34. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
308 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 disabilities that may r esult from the a dh er en ce t o a religiou s community other than the dominant one. Exam ples of the second type of restrictions are prim ar ily found among those states that espouse a communist or socialist ideology. Her e, th e restrictions serve to est ablish an d pr eser ve the pr im acy of atheis m or beliefs of a s im ila r anti-religiou s character that form a part of the officially s anction ed polit ica l ideology. Prohibition s on bla sp hem y or the injury t o religiou s feelings may be replaced or supplemented by expan sive rules limit ing expression crit icizing th e policies of the r uling polit ica l party or the state. Civil or social disabilities are placed on those wh o ad her e t o an y religiou s belief. A hallmark of both of these situations is that, for the most part, the prohibitions and penalties run in a single direction. One scholar of Islamic society has characterized the situa tion in those states in this way: “[N]on-Muslim missionary efforts to convert Muslims are generally curt ailed when n ot absolut ely prohibited. . . . Missionary work to convert non-Muslims to Islam is, on the other hand, officially encouraged and even publicly funded in some coun tr ies.”159 Penalties for apostasy only apply to Muslims. Restr ictions on blasphemy are framed or enforced to su pp ress on ly expression crit ica l of Islam. The same bias can be found in th e efforts t o protect official ideologies in communist states. Three examples illustrate restrictions on proselytism imposed for the purpose of protecting the dominant religious group or official political ideology. First , in Ma laysia, laws prohibiting proselytism targeted at Muslims are specifically sanctioned by the Constitution; the government has defended this provision as necessa ry t o protect Islam an d Islam ic institutions in a mult ir eligiou s s tate. S econ d, in the People’s Republic of China, religious activities, including pr oselytism, are restricted in order to proper ly guide society in its development as a socialist state. Finally, Ukrainian statutes on proselytism and religious freedom illustrate one of t he r ea ction s to proselytism and growing religious pluralism in the states of Eastern Europe and th e former Soviet Union following the collapse of commun ism.
159. Ann Eliza beth Mayer, Law an d Religion in the Muslim Middle East, 35 AM. J. COMP. L. 127 , 14 9 (19 87). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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a. Malaysia. As discussed above, certain Islam ic states have argued that a prohibition on apostasy of Mu slims, an d consequently proselytism of Muslims by non-Muslim s, is necessary in order to protect the Islamic faith, to preserve public morality, to promote public order, and to ensure the stability of Islamic society.160 A similar argument is made by the governmen t of Mala ysia wit h respect to restrict ion s on proselytism target ed at Mu slim s in the con text of a mu ltiet hn ic, multireligious state. The Ma la ysia n Con st it ution authorizes the enactment of laws that “may control or restrict the propagation of any religiou s doctrin e or belief am ong persons professing t he religion of Islam.”161 In 1988, the U .N. Special Rapporteur alleged that this provision, and the laws enacted pursuant to it, had a nega tive im pa ct on religiou s fr eedom .162 In response to this allega tion, the Malaysian governmen t a rt iculat ed certa in problems inherent in m ain ta ining social stabilit y in a mult ir eligiou s stat e tha t is nevert heless domin at ed by a particular religious tradition. [W]hen Malaysia achieved its independence in 1957, it
inherited enormous national problems. Top of the list are the daunting pr oblem s of forgin g u nit y among the multiracial and m ulti-r eligious comp osition of the n ewly born country which are not easily ap preciated by foreign obse rv er s. . . Malay sia , or Malaya then, was bor n from a land and State which had its own lon g es ta blis hed in dig en ou s in st itu tions ch aracterized by Isla m ic te ach ings a nd b elief . . . Ma laysia was to be born as a multiracial and multi-religious nation. One important factor underlying the opportunity of forging ahead for th e b ir th of a u nited nation then was the fact that this mu lti-religious and mult ira cial societ y h ad ha d little exp er ien ce in r eligiou s a nd ra cial in tera ction. . . . Yet, as civilized human beings, Malaysian leaders from the various ethnic communities worked out compromises between the ethnic groups. . . The compromises agreed to include the
160. See supra notes 83-87 an d accompa nyin g text . 161. Art. 11(4), reprinted in FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT 220 (Kev in Boyl e & J ul iet Sh ee n e ds ., 1997 ). 162. Im plem ent ati on of the Declaration on the Elim ination of Al l For m s of In toler an ce an d of Dis crim in at ion Ba sed on R eligi on or Bel ief, U.N. ESCOR, 45th Sess ., Pr ovisi onal Agen da It em 22, C omm iss ion on H um an Righ ts , ¶ 51, U .N. Doc. E/CN.4/1989/44 (1988) [hereinafter S pecia l R app oteu r’s Report 1 988]. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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understanding that all institutions indigenous to the country must be preserved, the character of the country and all its attr ibutes mu st not only be maint ained but stren gthened further, and the r ights of the indigenous (Malays) must remain, while those of the other ethnic groups are guaranteed. The spir it of th e Con stitu tion of Malaysia per ta inin g particularly to interracial and inter-religiou s r ela tion s between th e va riou s et hn ic communities was derived from the above com pr om ises. Inde ed ar ticle 11 a nd t he va riou s legisla tion s passed in consonance with that article are reflective of the compromise that the character of the country and all it s a tt ribut es shou ld n ot on ly be maintained but strengthened. Th is is t he wish of the in dige nou s pe ople (Malays) who are Muslims and indeed if there should be a change in t he cha ra cter istics m en tion ed a bove, it sh ould only take place in accordance with the wishes of the Mu slims. However, in keeping with the spirit of compromise, the Con st itu tion at the same time guarantees free dom of wors hip to the others.163
From the per sp ect ive of th e Malaysian government , th e unity and stability of the multiethnic, multireligious state of Malaysia is dependent upon the preservation and strengthening of the Islamic ch aracter of the stat e an d Muslim institutions. It is appa ren tly in furth era nce of that goal th at Muslims are protect ed “from bein g subjected to attempts to convert t hem t o another religion.”164 The government’s ar gum ent s notwithsta nding, if a law regulating pr oselyt ism direct ed at Mu slims, enacted in furtherance of Article 11(4) of t he Const it ution , purpor ts t o cover all forms of proselytism, it is uncertain that such a law could be su st ain ed as a pr oper lim it ation on the fr eedom to manifest religion enacted for the protection of public order. Support for this proposition comes from Malaysia’s own Supreme Court, in the ca se of Minister for Home Affairs v. Othman.165 In that case th e petitioner, a Christian, was detained by the Minister of Home Affairs under a statute that permitted su ch deten tion s in order to pr eve nt person s fr om
163. Id. ¶ 52. Th e Ma la ysi an gove rn me nt ma de a fu rt her response, foun d in Special Rapporteur’s Report 1990, supra note 67, ¶ 58. 164. Special Rapporteur’s Report 1990, supra note 67, ¶ 58. 165. [1989] 1 M. L.J . 41 8 (Sup . Ct .). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 311
“‘acting in any m anner ’ preju dicia l t o the secu rit y of Malaysia.”166 The Minister supported the detention on the grounds that the pet it ion er “was involve d in a plan or programme for the dissemination of Christianity amongst Malays.”167 It was alleged that the petitioner had attended a series of meetings and s em in ars a nd h ad ca used t he con ver sion of six Ma la ys to Christianit y. The low er court, on a petit ion of habeas corpus, ruled that the detent ion was unla wful,168 and the Supr em e Court affir med that decision .169 The Supreme Court r ecognized tha t u nder t he Mala ysian Constitution , the a rticle pr otect in g t he r igh t of freedom of religion “does not authorize any act contrary to any general law relating to pu blic order , public hea lth or morality.”170 However, the Supreme Cou rt deter mined that the exten t of th e petitioner’s activities, as alleged by th e Minister, did not fall within that pr ovis o: We do not think that mere participation in meetings and
seminars can m ake a person a thr eat to th e secur ity of the country. As rega rd s the alleged conversion of six Malays, even if it w as tr ue , it cannot in our opinion by itself be regarded as a threa t to th e secur ity of the country...... The gua ra ntee provided by ar t 1 1 of t he Constitution, ie the freedom to profess and practice on e’s religion, must be given effect unless the actions of a person go well beyond what can norm ally be regarded as pr ofessing and practising one’s re ligion .171
The Supreme Court’s decision was taken in the absence of any law prohibitin g the propagation of Christia nity among Muslims, as would be aut horized by Article 11(4 ).172 The
166. Id. at 419. 167. Id. at 420. 168. The lowe r co ur t d ecis ion is r ep orte d a t [1 989 ] 1 M. L.J . 36 8 (H igh Ct .). 169. Orhman , 1 M.L.J. 418. 170. Id. at 419. 171. Id. at 420. Note from this passage t hat the Su preme Cour t considers the petitioner’s pr osel yti zin g act ivit ies to fa ll wit hin th e pr ote ction of re ligiou s fr eed om as provided in the Constitu tion. The Court a pparen tly does not shar e the government ’s position, r elat ed above, t ha t cont rolling or r estr ictin g th e pr opa gat ion of non-Islamic religions among Muslims does not impair t he religious fre edom of non - Muslims. See supra text a ccompanying note 90. 172. See Orhman , 1 M.L.J. at 369. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
312 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 exist en ce of such a law may have rendered the petitioner’s detent ion lawful. However, if the activities of the petitioner were not contra ry to public order in the absence of a law restricting th e propagation of Christia nit y am ong Muslims, it is hard to see how the presence of such a law would change that determination. The petitioner’s detention might have been a lim it ation on his freedom of religion as prescribed by state law, but not in further ance of on e of t he per missible goa ls that are specifically articulated in international instruments. b. The People’s Republic of China. Th e r eligiou s p olicy of the People’s Republic of China recognizes, in principle, th e right to freedom of religion, but only to the extent compatible with the security and development of a socialist state. One official document has described the proper relationship between religion and society in th is wa y: Religion should be a da pt ed t o th e societ y in wh ich it is
prevalent. Th is is a u niver sa l law for the existence and development of religion . Now th e Ch ine se p eople ar e bu ildin g China into a modern socialist country with Chinese characteristics. The Chinese government advocates that re ligion sh ould ad ap t t o th is re ality . Howe ver , su ch a da pt at ion does not require citizen s to give u p r eligiou s belief, nor does it require an y religion to change its ba sic doctrin es. Ins tead , it requires religions to condu ct the ir a ctivit ies w ith in t he sphere prescribed by law and a dapt to social and cultural progress.173
In furthera nce of this goal, the “sphere prescribed by law” with in wh ich religiou s activities ma y be conducted is small. Organ ized religious activities can ta ke place only at specific religiou s sites tha t h ave been r egistered with the state
173. State Council Information Office, Freedom of Religious Belief in China (October 1997), as r epri nt ed in BEIJING REVIEW, Nov. 3-9, 1997, a t 16. See also Docu m ent 19: The Basic Viewpoint in the Religious Question During Our Country’s Socialist Period, § IV, reprinted in R. Lan ier Br itsch, The Cu rren t L egal S tat us of Christianity in China, 1995 BYU L. REV. 347, 370 (“[T]he basic starting point and firm foun da tion for ou r h an dlin g of th e r eligi ous qu est ion a nd for t he im ple me nt at ion of our policy a nd fre edom of re ligiou s be lief lie s in our des ire t o un ite th e m as s of believers an d non believer s an d ena ble th em t o center all th eir will an d st re ngth on the common goa l of building a moder nized, power ful socialist s ta te. Any act ion or sp eech that deviates in the least from this basic line is complet ely erroneous, and must be fir ml y resi st ed a nd oppos ed by both Par ty and people.”) [hereinafter Docu m ent 19]. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 313 authorities.174 These activities can be conducted only by state- approved an d regula ted religious personn el.175 Registered sites are administered by state-approved associations that must be affiliated with official stat e religious organiza tion s, the so- called “Patr iotic Religious Organ izat ions.”176 One int ended effect of these restrictions is t o severely limit proselytism, at least wit h respect to religiou s believers bringing nonbelievers to their faith.177 While the state recognizes that, as a matter of religious freedom, “[a] person who wa s pr eviously a nonbeliever has the freedom to become a r eligious believer ,”178 proselytism in this direction is curtailed.179 This is particularly true with respect t o foreigners. One of th e linchpins of China’s religious policy is the prevention of foreign influence in religiou s activities.180 Foreign influence is generally thought to be a subversive influence to the stability and t he proper development of society and the socialist Chinese state.181 As a part of this comprehensive policy, Chinese law prohibits foreign missionaries.182 According to the state Council’s Regulations on
174. See Docu m ent 6: Issued by t he C ent ral Com m itt ee of th e Com m unist Party and the State Council on Some Problem s Con cern in g Fu rth er Im prov in g Wor k on Religi on, reprinted in Brit sch, supra note 173, at 384, at § II [hereinafter Docu ment 6]; Ord er of t he S ta te Council of the People’s Republic of China, No. 145 (Jan . 31, 199 4), ar t. 2, repr in ted in Brit sch, supra note 173, at 396 [hereinafter Order No. 145]; Regulations from th e S ha ng ha i R eligi ous Af fai rs B ur eau (Nov. 30, 1995), art. 32, reprinted in HUM AN RIGHTS WATCH/ASIA, CHINA: STATE CONTROL OF RELIGION 90 (1997) [hereinafter Shanghai Regulations] (“No one may preach religion outside of places se t a sid e for re ligi ous a cti vit ies .”). 175. See Document 6, supra not e 17 4, § IV; Shanghai Regulations, supra note 174, art s. 15-17, 31. 176. See Document 6, supra note 174, § II . 177. The requ irem ent th at religious pers onne l be res tr icted t o their r egistered pla ce of worship is a lleged t o have seve rely r est ricted pr oselytis m. S ee H U MAN RIGHTS WATCH/ASIA, CHINA: STATE CONTROL OF RELIGION 33-36 (1997) [hereinafter HUM AN RIGHTS WATCH/ASIA, CHINA]. 178. Docu m ent 19, supra note 173, § IV, at 369. 179. See Docu m ent 6, supra not e 17 4, § II , at 388 (“P re ach ing an d m iss iona ry wor k by self-styled preachers and other illegal m issiona ry work mu st be firmly cur bed .”). 180. See Document 19, supra note 173, § XI; Document 6, supra note 174 , § IV; Ord er No. 145, supra note 174, ar t. 4. 181. See Luo Sh uze, Som e Hot Iss ues in Ou r W ork on R eligi on, reprinted in HUM AN RIGHTS WATCH/ASIA, CHINA, supra note 177, at 65-66. 182. See Document 19, supra note 173 , § XI, at 380 (“[Reli giou s p er son s] m us t dete rm inedly refus e an y medd ling or in ter fering in Chin ese r eligious a ffairs by foreign churches or r eligious per sona ges, nor mu st th ey p er mi t a ny fore ign re ligiou s organ iza tion . . . to use a ny m ean s to en ter our coun tr y for missionary work or to D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
314 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 the Supervision of the Religious Activities of Foreigners in China: Foreigners wit hin Ch ina’s bor de rs wh o cond uct r eligious
activities must observe Chinese laws and regulations; they are not allowed to establish religious organizations, set up re ligiou s offices, op en pla ces for re ligiou s a ctivit ies or run re ligiou s ins tit utes, nor m ay th ey d evelop follower s, app oint re ligiou s pe rs onnel or cond uct m issionar y a ctivitie s a m ong Chinese citizens.183
As a final matter, the state is not indifferent to the r eligiou s choices of its people. Ideologically, the Ch inese Commun ist Party embraces the notion that religion should wither away over time for the genera l good of society.184 Although the government now rejects the use of force in order to br in g a bou t this goal, it is to this end tha t r eligious policy is ult ima tely directed.185 The Party must aggressively propagate atheism, and all Party members must be avowed atheists.186 Therefore, proselytism directed at convincing religious believers to abandon their beliefs is encouraged as a matter of state policy.187 c. Ukraine. The collapse of the Soviet em pire an d its communist ideology h as let loose a wid e-r angin g process of national and political development throughout the region. The search by s tates, bot h old and n ew, for a gu idin g n ation al character has in some cases resulted in a desir e t o promote a national religious identity. This in turn has had an impact on religiou s freedom in the n ew democracies of East er n Europe and th e former Soviet Un ion. One ar ea in which th is impact has
secret ly in tr odu ce a nd dis tr ibu te re ligi ous li te ra tu re on a l ar ge s cal e.”). 183. Ord er of the State Council of the People’s Republic of China, No. 144, art. 8 (Ja n. 31, 1994), reprinted in Brit sch, supra note 173, at 395 (transla ted from CNCR No. 228 7, F eb. 25, 199 4). 184. See Document 19, supra note 173, § I. 185. See id. §§ I, IV; Document 6, supra note 174, § I. 186. See Document 19, supra note 173, § IV at 369 (“We Communists are atheists and mu st un re mi tt ing ly pr opa gat e a th eis m. ”); id. § IX at 377 (“A Commun ist P ar ty member cannot be a re ligi ous b eli eve r; s/h e ca nn ot t ak e p ar t i n r eli giou s a cti vit ies .”); Docu m ent 6, supra note 174, § VI. 187. See Document 6, supra note 174, § II at 392 (“Party committees and government s at all levels must . . . instruct the propaganda departments to . . . educate th e m as ses, y oun gst er s in pa rt icu la r, in dia lect ica l m at er ia lis m a nd hi st ori cal materialism (in clu din g a th eis m). ”). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 315 been felt is proselytism, part icularly by foreign religiou s groups targeting those who are at least n ominally pa rt of the dominan t religious traditions. Following the collapse of communism and the Soviet Union, a number of Eastern European states and th e newly- independent Soviet r epublics enacted laws that established freedom of religion on a relat ively equa l basis for all denominations, and granted br oad fr eedom to religiou s orga niza tion s to operate without government inter ference.188 An uninten ded consequence of t he est ablish men t of religiou s freedom in pr incipal, alon g with the loos en in g of controls on the press an d foreign visitors in genera l, was an in flux of represen tatives of for eign religiou s or ga niza tion s. In som e ca ses, the for eigner s ca me t o su pp ort exist in g loca l denomination s. In other cases, they came to establish new orga niza tion s th at would gr ow through proselyt ism. The r esult was bot h a marked in crea se in religiou s pluralism and a reassessment of the legal rules under which th e foreigners operated. At the instigation, or with the support, of local religiou s denominat ions—in par ticular th e domin ant religion —a number of these laws have been amended for the purpose of restricting proselytism by foreign religious organizations.189
188. Laws of this kind were pa ssed in Hu ngary, Czechoslovakia and man y former Soviet Republics. The form er Soviet States based th eir la ws on a law en acted by th e Soviet Union in 1990. That la w, entitled “On Freedom of Conscience and Reli giou s Orga nisa tions,” is tra nslat ed into En glish at 33 J. CHURCH & ST. 192 (1991). See also Law on F re edom of Relig ion, RSF SR L aw on F re edom of Relig ion, J PRS-UPA-90-071, Dec. 18, 1990, Act of the Ukrainian Soviet Socialist Republic on F re edom of Con scie nce an d Religiou s Or gan izat ions, P RAVDA UKRAINY, April 29, 1991, at 3 [hereinafter Uk rai ni an Act ], quoted in Howard L. Biddulph, Religious Liberty and the Ukrainian S ta te: Nationalism Vers us Eq ua l Pr otecti on, 1995 BYU L. REV. 321, 329; Law of Belarus’ On th e Free dom of Cons cience a nd Religious Orga niza tions, MINSK, No. 2054-XII, Dec. 17, 1992. 189. For an an alysis of the a men dme nt s to t he U kr ain ian an d Russia n la ws, see gener ally Biddu lph, supra note 188; W. Cole Durham et. al., The Future of Religious Liberty in Russia, 8 EMORY INT’L L. REV. 1 (1994); and a number of the articles contained in Soul Wars: The Problem of Proselytism in Ru ssia, 12 EMORY INT’L L. REV. 1-738 (1998). For th e at tem pts to am end t he la w of Belarus’, see Wr itt en Qu esti on E-3960/ 97 (Dec . 12 , 19 97), Com mi ss ion of th e European Communities, 1998 O.J . (C 187) 101. This sta tem ent ma de by Met ropolitan Kirill of Smolensk and Kaliningrad at a world con fer en ce of m iss ion s in 199 6 gi ves a r ep re se nt at ive officia l vie w of t he Russian Or th odox Ch ur ch on th e a ctiv iti es of for eign re ligiou s organizat ion s s in ce 1990: D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The history of religious freedom legislation in Ukrain e is illustrative of the in crea sed r estrict ion s d escribe d a bove. Followin g th e dem ise of the USSR in late 1991, the independen t Republic of Ukraine r et ain ed the “La w on Freedom of Con scien ce an d Religious Or gan izat ions” enacted earlier in 1991 by th e Uk ra inia n Soviet Socialist Republic. This law, which was modeled on a law adopted in the Soviet Un ion in 1990, provided for th e right to freedom of conscience in the following terms: All citizen s shall hav e t he gu ar an te ed rig ht of fr eedom of
conscie nce. The above right shall include the freedom to have, to ad opt an d t o cha nge r eligion or con victions a t on e’s own choice and th e fr eedom to p rofe ss individu ally or together with other pe rs ons a ny r eligion or t o pr ofess no re ligion , to establish
As soon as freedom for mission work was allowed, a crusade began against th e Ru ss ia n ch urch even as it began recovering from a prolonged disease, stan ding on its feet with weaken ed muscles. Hordes of missionaries dashed in, believing the former Soviet Union to be a vast missionary te rr itor y. They beha ved as th ough no local churches exist ed, no gospel was being pr oclai me d. The y beg an pr ea chin g wit hou t e ven ma kin g an effort to familia rize them selves with th e Russian cultu ral her itage or to learn t he Russian language. In most cases the intention was not to preach Christ and the gosp el bu t t o te ar th e fa ith ful a wa y from th eir tr ad iti ona l churches and recr uit them into th eir own communities. Per haps t hese missionar ies sincer ely beli eve d t ha t t he y wer e de ali ng wit h n on-Ch rist ian or a theistic communist people, not suspecting that our cultur e was formed by Christianity and that our Ch rist ian ity su rvived t hr ough t he blood of mar tyr s and confessors, t hr ough the coura ge of bishops, th eologians, a nd la ypeople asserting their faith. Missionaries from a broad came with dollars, buying people with so-called humanitarian aid an d prom ises to sen d th em a broad for st udy or r est. We exp ect ed that our fellow Christian s would support and h elp us in our own missionary service. In r ealit y, however , they ha ve sta rt ed fighting with our church. . . . All t his ha s le d t o an alm ost comp lete rupture of the ecumenical relations developed du rin g th e p re viou s d eca de s. An overwh elmin g ma jor it y of t he pop ul at ion re fus ed t o accept t his a ctivity, wh ich offends people’s nation al and r eligious sentim ent s by ignor ing their spiritual and cultur al t ra dit ion. In dee d, giv en th e la ck of r eligi ous edu cat ion, people tend t o make no distinction between the m ilitant missionaries we are speaking ab out an d or din ar y pe ople of oth er fait hs or con fess ions . For many in Russia t oday, “non-Or th odox” me an s wh o th ose [s ic] ha ve com e t o des tr oy the spirit ua l un ity of the people and the Orthodox faith – spiritual colonizers wh o by fa ir me an s or foul t ry to t ear th e pe ople aw ay fr om t he church. This port ion of Metropolit an Kirill’s stat emen t is r eprin ted in John Witt e, J r., Soul Wars: Th e Problem and Prom ise of Proselytism in Ru ssia, 12 EMORY INT’L L. REV. 1, 12-13 (198 8). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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religiou s cults, to express openly and to spread freely one’s own religious or atheistic convictions.190
Among the forces th at sought t o have th e law am ended in response to the influx of foreign religious ideas and operatives were those that identified the restoration of the Ukrainian nation with the restoration of the traditionally dominant faiths. One scholar has described the situation thus: Th e p olit ical legitimacy of post-Soviet Ukraine, like that of
the other su ccessor stat es of form er US SR, is st ron gly associated with th e t as k of r estor ing a tr ad ition al nat ional culture, long suppressed within a m ultinational em pir e. The state was considered to have the task of restoring the pr edom inance of Ukrainian language, history, music, art, and other traditional cultural institutions that h ad been suppr essed by Russian Tsa rism and th e Soviet regime. Traditional religious institutions were among th ese casualties of th e S oviet pe riod , an d s om e nationalists viewed the state as having th e obliga tion to r est ore his tor ically dominant faiths tha t ha d been decimated by the commu nists in order to bring about the spiritual renewal of Ukrainian society. Th e rest ora tion of tra dit ional faiths wa s n ow be ing threatened by the flower ing of th e st ra nge n ew re ligion s “imported from abroad,” which were supported by the ample human and ma terial resources of international evangelism. Those taking such a position believed that, to promote the re flower ing of Ukrainian nationalism an d s pir itu al re new al of society, the state should erect protective barriers against the importing of increased religious pluralism.191
As the right to freedom of conscience wa s accorded only to Ukrainian “citizens,” an amendment was enacted in 1993 to significantly restrict the religious activities of foreigners in the Ukr aine: Clergymen, pr ea che rs of re ligion , instructors (teachers),
and other representa tiv es of foreign org an iza tion s w ho ar e foreign citizen s t em por arily sta yin g in Ukr ain e, m ay p re ach re ligiou s dogm as , per form religious rit es a nd pr act ice other canonic act ivitie s on ly in those re ligiou s or ga niza tion s on whose invita tions they came, an d upon a n official agreement
190. Ukrainian Act ar t. 3, quoted in Biddulph, supra note 188, at 329. 191. Biddulph, supra note 188, at 337. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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with th e sta te bod y w hich has registered the statute of the corr espon din g r eligious or ga niza tion .192
This pr ovis ion pr esen ts s ign ifica nt restrict ion s on foreign religiou s groups seeking to proselytize in Ukra ine, par ticularly those with no native base of operations. d. Con clu sion. The preser va tion of a pa rticu la r religiou s tradition, the officia l ideology of a stat e, or the r eligiou s character of a state’s institutions—divorced from any of the other limitations expressly provid ed for in in ter nation al instruments—cannot su pp ort lim it ation s on the fr eedom to manifest religion . Th us, goals su ch as t he protect ion of the Isla mic character of the Malaysian state, th e proper development of societ y in to “a m odern socialist country with Chinese characteristics” or the restoration of traditional “Ukrainian” values following th eir suppression under Soviet rule do not support the limitations provided for in international instruments. When states argue t hat these goals support limitation s recogn ized by in ter nation al in st rumen ts, su ch as the protection of public order , th ese a rgu ments must be carefu lly scr utin ized beca use of the inherent danger of favoring the ma jority wh ile limit ing the rights and freedoms of minorities. The Human Right s Committee has addressed this problem from at least three angles, all of which len d s upp ort to the assertion that the preservation and promotion of a dominant religiou s tradition or polit ica l id eology ca nnot su pp ort a lim it ation on the freedom to manifest religion or belief. First, the exist ence of a domin an t r eligion, in an d of itself, must not result in an im pa ir men t of the r igh ts of t hose belon gin g t o a different religiou s group. 193 In th is regard, “measur es . . . im pos in g s peci a l r es t r ic t io n s on t h e pr a ct ic e of ot h er fa it h s ” a r e specifically singled out as being “not in accordance with the prohibition of discrimin at ion based on religion or belief and the
192. 1993 Ame nd me nt to a rt icle 24 of Ukrainian Act, from Handbook of the Council for Religious Affairs, quoted in Biddu lph, supra note 188, at 339. 193. See General Comment on Article 18, supra not e 48 , ¶ 9. F or a n e xam ple of th is from the European Court, see Darby Case, 187 Eu r. Ct . H.R. (ser . A) (19 90), where the European Court dete rm ined t ha t a sta te can not force a n in dividua l to contribute to a s ta te ch ur ch if th ey ar e not a m emb er of th at church. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 319 guarantee of equal protection.”194 The Human Rights Committee expressed the same concerns with respect to the exist en ce of an official ideology.195 Second, states are prohibited from restr icting t he m an ifesta tion of re ligious beliefs by adopting an overly narr ow conception of public morality: “The Committee observes that the concept of morals derives fr om many social, philosophical and religious t radition s; consequ ently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”196 In other words, what furth ers public moralit y is not necessar ily co- extensive with what furthers the dom in ant religion in a society. Fin ally, a ny lim it ation s on the right to manifest religion should not be “imposed for discriminatory purposes or applied in a discriminatory manner.”197 Any dist in ction ba sed on religion should be supported by rea sonable and objective criteria in pursuit of a legitimate aim under t he ICCPR.198 Protection of a dominant religion or idea logy is n ot an objective ba sis on wh ich to support a limitation on proselytism.
2. The preserva tion of public order The Mala ysian example related above involved an appar ent ly comprehensive restr iction on proselyt ism th at applied only as against the activities of non-Muslims towards Muslims. An example from India involves a more narrowly- tailored restriction on proselytism conducted by all groups. This exam ple provides a more precise illustration of the types of proselytism that may raise the concern of multireligious states in th e inter ests of mainta ining public order. With respect to fre edom of re ligion, Article 25 (1) of th e Indian Constitut ion provides, “[S]ubject to public order, morality and health and to the other provisions of this Part [of the Con st it ution], all per son s a re equ ally entit led to fre edom of
194. General Comm ent on Article 18, supra note 48, ¶ 9. 195. See id. ¶ 10. 196. Id. ¶ 8. 197. Id. 198. See Gen eral Com m ent on N on-d iscri m in ati on, supra note 56, ¶ 13. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
320 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 conscien ce and the right freely to profess, practice and propaga te religion.”199 The Indian Su preme Court has upheld th e laws of two Indian states, Orissa and Madhya Pradesh, that criminalize the conver sion of persons to another r eligion un der certain circumstances. For the pu rpos es of this discu ss ion , t he t wo a cts are essent ially the sam e. The relevant section of the Orissa Freedom of Religion Act 2 of 1968 provides: “No person sha ll convert or attem pt to conver t, either direct ly or otherwise, a ny person from one religious faith to another by the use of force or by inducement or by any fraudulent means nor shall any person abet an y such conver sion.”200 The terms used in th is provision are defined as follows: In th is Act , u n less th e con tex t ot h er wise r eq u ir es :—
(a) ‘conver sion ’ mea ns r en ouncing on e r eligion an d adopting another; (b) ‘force’ shall include a show of force or a threat of injury of any kind including threa t of divine displeasure or social ex- communication; (c) ‘fraud’ shall include misrepresentation or any other fraudulent contrivance; (d) ‘inducement’ shall in clude th e offer of an y gift or gratification either in cash or in kind, and shall also include th e gr an t of a ny be nefit , eit her pe cun iary or ot her wis e . . . .201
The statutes in qu estion were ch allenged in the H igh Cou rts of the respective st ates as bein g in va lid restrict ion s on religiou s freedom in viola tion of Article 25 of the Const it ution .202 Bot h Courts upheld the prohibit ion against conversions by means of force or fraud.203 In addition, the High Court of Madhya Pradesh uph eld the prohibition of conversion by m ea ns of “allurement” (defined in practically identical terms as “inducement” in the Orissa Act). 204 Th e Orissa High Cou rt,
199. Yulith a Hyde v. Sta te, 1973 A.I.R. 116 (Ori.) 120. 200. Id. 201. Id. The Act provides for a penalt y of one-year impr isonm ent , howeve r, t he penalty is d oub led “in ca se t he offence is com mi tt ed i n r esp ect of a m inor , a w oma n, or a pe rson belongin g to th e Sche dule d Cas tes or Sch edu led Tr ibes.” Id. 202. See id; St ai ni sla us v. S ta te , 19 75 A. I.R . 16 3 (M. P. ). 203. See Yulitha Hyde, 197 3 A.I.R . 116 (Ori) 121; St ainislaus, 1975 A.I.R. 163 (M.P.) 168. 204. See St ainislaus, 1975 A.I.R. 163 (M.P.) 168. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 321 however, held that the definition of “inducement” was too br oad to be justified under the permissible limita tions of Article 25: We shall now deal with the argument regarding the
de finition of ‘inducement.’ The attack is mainly on the ground that it is too widely stated and e ven invok ing the blessin gs of the Lord God to say that ‘by His grace your soul shall be elevated’ may come within the m ischief of the term. Learned Government Advoca te wh ile agreein g th at even hold ing out that an int an gible b en efit is to come may answer the de finition , contends that the intention of th e Legis latu re is n ot to tr an sce n d t h e or din ary con cep t of th e t er m . We are of t h e view th at t h e d efin ition is ca pa ble of covering some of the methods of proselytizin g a nd t hough th e con cept of in du cement can be a m atter referable to ‘morality’, the wide de finition is in dee d open to r ea son ab le object ion on the ground that it sur passes th e field of morality.205
On other grounds than those relied on by th e st at e high courts, the Indian Supr eme Court, hearing both cases together, affirmed the decision of the Madhya Pradesh court and reversed that portion of the Orissa court’s decis ion that invalidat ed the “inducement” section of the statute.206 The Supreme Court determined that the r igh t to freedom of religion guaranteed by Article 25 did not encompass the right to attem pt to conver t another person to one’s religion . [W]hat th e [Ar ticle 25] gra nts is n ot t he right to convert
anoth er person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered tha t Article 25 (1) guarant ees “freedom of conscience” to every citizen, and not mer ely to the followers of one pa rt icula r religion, and that, in tur n, postulates that there is no fundamental right to convert another person to one’s own re ligion be cau se if a person purposely undertakes the conv er sion of another person to his religion, as distinguished from his effort to transmit or sp re ad th e t en et s of h is r eligion, th at wou ld im pin ge on th e “freed om of conscience” guarant eed to all the citizens of the country alike.207
205. Yulitha Hyde, 1973 A.I.R. 116 (Ori.) 121. 206. See Stain islaus v. Madh ya Pr adesh & Ors. (1977) 2 S.C.R. 611. 207. Id. at 616. The Court noted th at th e ter m “propa gat ion” as us ed in Art icle 25 m ea n t “t o t r a n s m it or spr ea d o n e’s r el ig io n by a n ex po s it io n of i t s t en et s .” Id. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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The Supreme Court did not consider proselyt ism, as it is defined here, to fall with in t he protection of Article 25. Even if it ha d, it would pr obably have susta ined th e Acts as valid lim it ation s on the r igh t to religiou s fr eedom in furtherance of public order. On a separate legal issue, th e Supreme Court h eld that the restrictions were valid efforts to maint ain public order: It has been held by this Court . . . that “public order” is an
exp re ssion of wid e con nota tion an d s ign ifies st at e of tranquillity which prevails among m em bers of a p olit ical society as a resu lt of intern al regu lations enforced by the Gover nm en t w hich th ey h av e es ta blished ...... [T]he right of freedom of religion guaranteed by Articles 25 a nd 26 of th e Con stitu tion is expressly made subject to pub lic orde r, m ora lity a nd he alt h, a nd th at “it cannot be predicted that freedom of religion can have no bearing w hate ver on th e m ain te nance of pu blic or de r or th at a law creat ing an offence relat ing to religion cannot under any circumsta nces be s aid t o hav e be en en act ed in th e in te re st s of pu blic order.” . . . [I]f a thing disturbs the current life of the community, an d does n ot merely affect an individual, it would amount to disturbance of the public order. Thus if an attempt is m ad e to ra ise com m un al p as sions, e.g. on the ground that som e one has been “forcibly” conve rt ed t o an oth er religion, it would, in all probability, give rise to an app reh en sion of a breach of th e p ublic or de r, a ffectin g the com m unity at large. The impunged Acts . . . are meant to avoid disturbances to the pu blic order by p roh ibit ing con ver sion from one r eligion to anoth er in a manner reprehen sible to the conscience of the community.208
Given the somet im es viole nt rela tion s bet ween religiou s groups, international standards cannot be in differ en t to the relationship between public order and those acts perceived to be attacks on another religion, particularly the dominant religion. But such a connection must be carefully scrutinized, as the argument can be su bject to abu se. F or instance, limitations on the righ ts of m em bers of m in orit y r eligiou s groups or person s holding atheistic or agnostic views should not be based solely on the unpopularity of their message. Furthermore, any lim it ation s on righ ts in this rega rd should be viewed in light of the st ate’s fulfillm en t of it s own obliga tion to promote tolerance,
208. Id. at 617-18. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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mutual un derstan ding and pea ceful relations between groups.209 In other words, it should be difficult for a state to support a limitation on rights in furtherance of public order where th e danger , in pa rt , stems from t he sta te’s own actions in respect to relations between communities of differ en t religion s or beliefs . If t he threa t to pu blic order st em s s olely fr om the intolerance of other s t o the ot her wise peacefu l exer cise of rights, a state may be less able t o justify a limit at ion th an if the threat derives d ir ect ly fr om the violen t or disor derly nature of the exer cise it self.210
3. Protection of con su m ers in th e religi ous m arketp lace Given th e exist en ce in many societ ies of a m ultitude of religiou s choices, some states have articulated an interest in protecting the choices of its people fr om the in flu en ce of ignorance, misr epresen tation and fr aud. Th is in ter est—wh ich migh t be ter med the protect ion of consumers in the modern marketplace of religion —has been advanced in favor of regulating groups such as those termed “cults,” “sects,” or “new religiou s movement s” tha t en gage heavily in proselytism. It has also engendered programs designed to provid e in formation to the public on those groups.211
209. S ee, e.g., Un ivers al Decla ra tion, supra not e 80 , ar t. 2 6(2); In te rn at iona l Covenant on Econ omic, Social a nd Cult ur al Righ ts, D ec. 16, 1966, ar t. 13(1 ), 993 U.N.T.S. 3 [her eina fter ICES CR]; Race Convent ion, supra note 56, art. 7; Afri can Charter, supra not e 75 , ar ts . 28, 2 9(7); CSCE Vienna, supra note 47, prin ciple 16b. 210. For discuss ion of thes e issu es in t he cont ext of ra cial discrim ina tion in th e United Stat es, see Palm ore v. S idoti, 466 U. S. 4 29, 433 (198 4) (“The quest ion, however, is whether the reality of private biases and the possible injury they might in flict are permissible considerations for removal of an infant child from the custody of its n at ur al m other. We h ave lit tle difficulty concluding that th ey are not. The Con st itu tion cannot control such prejudices but n either can it tolerate t hem. Private biases may be outside th e rea ch of the la w, but th e law can not, dir ectly or in direct ly, give th em effect .”); Watson v. City of Mem phis, 373 U.S. 526, 535 (1963) (“[C]onst itu tion al rig ht s m ay n ot be denied simply becau se of hostilit y to th eir as ser tion or e xer cise.”); Bu cha na n v . Wa rley , 2 45 U .S . 6 0, 81 (1 91 7) (“[P]reser vat ion of th e public peace . . . cann ot be a ccomplished by laws or ordinances which deny rights cre at ed or pr ote cte d by t he Fe de ra l Con st it ut ion .”). 211. A number of governmental entities in Western Europe have begun investigations int o the activit ies of religious gr oups considere d to be “dan gerous” to its mem bers or oth ers, with a view t oward s th e neces sity or desir ability of legal reforms or educational program s. The work of the Council of Europe is discussed below. The E ur opean Pa rliamen t’s investiga tion cu lmin at ed in the Rapporteur’s (Mr. R. Cot tr ell ) Rep ort on Beh al f of the Committee on Yout h, C ult ur e, E du cat ion, Information an d Sport on th e Activity of Cert ain New Religiou s Movement s With in D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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This is a pa rticu la rly s en sitive area for a number of reasons. First, regulation of a particular group because of its alleged activities is a significantly more drastic, and perhaps less effective, step t han regulating the offending activities themselves, regardless of their source. Second, det ermin ing t he existence of fraud or misrepresentation may place the state in the posit ion of deter mining the t ruth or falsit y of religiou s beliefs. Third, the desire to provide persons wit h informa tion in order to make ‘informed’ choices can mask an effort to prevent people from making the ‘wrong’ choices. If the latter were the case, the state would be in the position of arbiter of the proper choice of re ligion for its p eople. Th us, the obje ctivit y of the information an d the n eut ra lity of its present at ion ar e extr emely important. For example, a state taking an interventionist attitude towards the informat ion available to its people when making religious choices may refuse to do so with regard to all religiou s choices. Som et im es wh at is new, different or unusual is considered for that reason alone to be harmful. A state may therefore provide information on groups of this nature but not on establish ed religiou s groups, even in areas where there exists substantial ignorance (either of adherents or nonadherents) about established groups or where significa nt harm would be found in an object ive ass essm en t of th e practices of those established groups. In this case, the state may be attempting to dissuade people from making particular religiou s choices based on a view of t he propr iet y of those choices, rather than on neu tral criteria applicable to all religiou s groups . a. The av ailability of inform at ion . The Parliamentary Assembly of the Council of Europe has addressed the problem, in th e context of th e activities of cer tain sects or new religiou s movements, of persons claiming to have been harmed by religiou s choices. In deliberation over the desirabilit y of legisla tion to ban or otherwise control these groups,212 the
the Eur opean Commu nity, which called for member stat es to set up their own study comm issions. Rep ort s h av e r ecen tl y be en iss ue d by su ch com mi ss ion s in Fr an ce, Belgium, Germa ny, Italy, Switzerland a nd Sweden. 212. A precise definition of th e t er ms “sect s” or “ne w r eligi ous mov em en ts ” is not offered by the Pa rliamen tar y Assembly. The notion of consent appears to be important. In th e r epor t on Sects a nd N ew Religious Movem ent s prepar ed by Sir D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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Assembly has con sidered the r ole of edu cation and the need to provide in formation on religiou s ch oices . Ta kin g in to account the protection of religiou s fr eedom pr ovided by a rticle 9 of the European Con ven tion , t he Assembly has r ejected the need for legisla tion directly applicable to the activities of these groups. The primary recommendations of the Assembly address the ava ila bilit y of in formation : [T]h e Assembly recommends th at th e Committee of Ministers
call on the m ember states of the Council of Europe to adopt the following measures: i. [T]h e ba sic ed ucat ional curr iculum shou ld include objective factual information concerning est ab lish ed r eligion s a nd th eir m ajor va ria nts , conce rn ing the p rin ciple s of com pa ra tive religion and concerning ethics and personal an d social rights; ii. [S]upplementary information of a similar nature, and in particular on the nature and activities of sects and new re ligiou s movements, should also be widely circulated to the general pu blic. I nde pe nde nt b odie s shou ld b e set up t o collect and circulate this information.213
In a thoughtful opinion approved by the Committ ee on Culture and Education, the Assem bly ackn owledged par ticular types of harm arising from the activities of religious groups, and approved methods that states may use to combat those harms consistent with protecting the rights of all concerned: The aim . . . is to preven t t he possibilit y of an as socia tion or a
re ligion being u sed a s a cover for a criminal activity. In other words, it is a matter of implementing th e law — which exists already in a ll countries in the form of the criminal code — rather than banning the existence of religiou s or cultural groups, even if their beliefs or ideas are un usu al. To be
John Hunt for the Committee on Legal Affairs and Human Rights, it is stated, This brin gs us to one of th e elements that d ist ing uis h a sect from a religion. While a religion implies free, informed consent on the part of those who join it, people joining certain sects ma y be free when t hey join it, but are not informed, and, once they are in formed, they are usu ally no longer free. Report of the Comm ittee on Legal Affaires and Hum an Rights, EUR. PARL. ASS. DEB. 23d Sess. Doc. 6535, a t 8-9 (Feb. 5, 1992 ). Recalling th e argum ent s ma de by cert ain Islam ic St at es in fav or of th e p rohi bit ion of ap ost as y of t hose b orn int o Islam, the usefulness of this factor might be questioned. 213. Recomm endation 1178 on S ects an d N ew R eligi ous Mov em ent s, EUR. PARL. ASS. 23d Se ss ., ¶ 7(i)-(ii ) (199 2). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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perfectly clear, this means that each citizen must be free to change dir ection or r ad ically ch an ge h is beliefs, b ut w ith out pressure and without infringement of his ps ych ological a nd physical in te gr ity; h e m u st also b e fr ee to join a gr ou p of a n y ide ologica l or religious persua sion, but at the same time he must be fre e to rem ain in it or lea ve it at an y m omen t. Th is means tha t in a dem ocracy the freedom of all religious, cultural or other groups m ust be respected, a s long as t hey d o not threaten the per son al in tegrity of the ir m em ber s, n or t he ir per son al, pr ofess ional an d cu ltu ra l re lation sh ips , nor, of course, th e se cur ity of th eir pr ope rt y or their rights as workers. These offences have already been defined by legisla tion . . . . . The solution of the problem of sects does n ot lie in legislation. The problem of sects wh ich com m it offen ces exists, but so d o th e la ws wh ich p un ish th ese offences . Wh at is needed is a greater awareness, preventive measu res and the collective responsibility of societ y. Gre at er vigila nce will of course be necessary, but the most effective action, in the m ediu m term and long term , is education in this field, general information, crea tive an d free a ssocia tion between young people, friendships between t he p eople an d groups concerned, and cultural growth with an enhanced capacity for thought and critical analysis.214
b. Fraud. With respect to fraud, a particular problem may arise concern ing t he “trut h” of religious beliefs assert ed by the source. If fraud is to be shown—either as an ele men t of a direct prohibition of proselytism or as a general fraud provision applied t o proselyt ism—then, in the usual circumstance, falsity or misrepresen ta tion mu st be pr oved or, in the alter native, “truth” would be a successful defense. Th is could lea ve a court or a jury in the position of deter min in g wh et her or not assertions in the n ature of r eligiou s d octr ines or beliefs were true or false. S uch a situation migh t lea d t o convict ion of those persons with beliefs that, although sincerely held, were unbelievable or fantastic to the minds of the majority of others. The Un it ed St ates Su pr em e Cou rt case of United States v. Ballard 215 is relevant to this problem. In that case, the leaders
214. Opi ni on of the Comm ission on Culture and Ed ucation, EUR. PARL. ASS. 43d Sess ., Doc. N o. 65 46, at 3 (J an . 20 , 19 92). 215. 322 U. S. 7 8 (19 44). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 327 of a religiou s movement called “I Am” were cha rged with selling literature and s olicitin g fu nds and m em bersh ips “by mea ns of false and fraudulent representations, pretenses and promises.”216 The Supreme Court wa s faced with t he issue of whether th e trial cour t wa s correct to withh old from t he jur y any question as to the truth of the asserted religious beliefs and limit the jury question to whether the movement’s leaders “honestly an d in good faith believe[d ]” those beliefs.217 The Cou rt uph eld the t ria l cou rt’s decis ion on the grounds that the First Amendmen t pr eclu des cou rts fr om decidin g t he t ruth or falsit y of religiou s d octr ines and beliefs: Men ma y believe what they cann ot prove. They may not be put
to the proof of their religious doctrines or beliefs. Re ligiou s experiences which ar e as rea l as life to some may be incomp re he ns ible to others. Yet the fact th at they m ay be bey ond the ken of morta ls does not mea n th at they can be made suspect before the law. Many ta ke their gospe l from th e New Testam ent. But it would hard ly be supposed tha t they could be tried befor e a jury cha rg ed wit h th e d uty of determining whether those teachin gs con ta in ed false represen tations. The m iracles of the New Testament, the Divinity of Ch ris t, life aft er de at h, th e p ower of prayer are deep in the religious convictions of many. If one could be sent to jail becau se a ju ry in a h ost ile envir onm en t fou nd those tea chings false, little indeed would be left of re ligiou s freedom. The Fat hers of the Constitut ion were not un aware of th e varied and extre m e vie ws of re ligiou s sect s, of the viole nce of
216. Id. at 79 (q uot in g in dict ment). The alleged false and fraudulen t representations included: Guy W. Ballard, during his lifetime, and Edna W. Ballar d, an d Dona ld Ballard, by reason of their alleged high spiritu al att ainmen ts an d righteous cond uct , had been selected as divine messengers thr ough which the words of the alleged “ascended masters,” including the alleged Saint Germain, would be communicated to mankind under th e teachin gs commonly known as th e “I Am ” movem en t; that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard h ad, by r eason of super na tu ra l atta inm ent s, the power to heal persons of ailments an d diseases an d to make well persons a fflicted with any diseases, injuries, or ailments, and did further r epresent that the thr ee designated per sons had in fact cured eith er by t he activity of one, either, or al l of sa id p er son s, h un dr ed s of p ersons afflicted with diseases and ailments. Id. at 79-80. 217. Id. at 81. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
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disagreement among them, and of th e la ck of a ny on e r eligious creed on which all men would agree. They fashioned a charter of governmen t which envisaged th e widest possible tolerance of conflicting views. . . . The religious views espoused by [the movemen t’s leaders] might seem incredible , if n ot preposterous, to m ost pe ople . Bu t if t hose doct rines are su bject to trial before a jury charged with find ing th eir tru th or falsity, then the same can be done with th e r eligiou s b eliefs of an y sect. When the triers of fact undertake that task, they enter a forbid den dom ain .218
V. IMPORTANT FACTORS IN DRAWING THE LINE BETWEEN PROPER AND IMPROPER PROSELYTISM The mere ass er tion of cer tain in ter ests by t he propon en t of proselytism, or by the state in defense of the restrict ion of pr oselyt ism, does not cla rify what factors lea d t o the con clu sion that proselytism in a pa rticular case is pr oper or improper. Indeed, in his part ly concurr ing opinion in t he Kokkinakis case, Judge Pettiti ch astised t he E ur opean Court for not att emptin g to clarify the meaning of “improper proselytism.” He thought that it was possible to “define impropriety, coercion and duress more clea rly a nd t o descr ibe more sa tisfactorily, in the a bstract, the full scope of religious freedom a nd bearin g witness.”219 The
218. Id. at 86-87. The European Commission has tak en a somewh at different view of th is p rob lem, a t lea st wit h r espect to st at emen ts m ade in connection with offering somet hin g for sale. Th e case in volved th e Chu rch of Scient ology and it s advertising for the sale of the “E-meter,” a device that, according to the beliefs of Scientologists, lea ds t o cer ta in s pir itu al b en efit s for th ose w ho u se it . See X. and Church of Scientology v. Sweden, App. No. 7805/77, 16 Eur. Comm’n H.R. Dec. & Rep. 68 (1979). The Ch ur ch claimed th at th e app lication of a la w prot ecting consumers from m isleading advertising to the E-meter advert isements violated the rights to freedom of religion a nd fre edom of expre ssi on of their members. A Swedish court, relying on expert test imony tha t certain assert ions in the advertisements were not tr ue , en join ed th e Ch ur ch fr om using phrases such as: The E-meter “is ‘an invalua ble aid to measuring man’s menta l state an d cha nges in it .’” Drawin g a dis tin ction “between advertisements which are merely ‘informational’ or ‘descriptive’ in character and commercial advertisemen ts offering objects for sale,” t he Com mi ssi on decided th at th e lat er fell out side t he scope of th e freedom to ma nifest religion. Id. ¶ 4. As to fr eed om of e xpr ession , t he Com mi ss ion , n oti ng th at “comm er cia l” spe ech is to be accorded less protection than “the expression of political ideas,” held that the lim ita tion on using par ticular words in the advert isement s was proportionate to the need to protect consumers from false or misleading advertisements. Id. ¶ 5. 219. Kokkin akis v. G re ece , 26 0 E ur . Ct . H .R. (se r. A) at 28 (1993) (Pet tit i, J., par tly con cur ri ng ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 329 remainder of this article takes up that task but by no means completes it. In consider ing the exam ples of restr ictions on proselytism given ea rlier in this article, the ou tlin es of a framework emerge that helps to disentangle the factors that have been used to draw the line bet ween pr oper and improper proselytism. The framework in volve s consider at ion of four variables, corresponding to certain relevant factual circumstances. The variables ar e all in ter rela ted, and sh ould be considered in combin ation , as appropria te. Th ey a re (1) t he a ttribu tes of th e source, (2) the a ttribu tes of the t arget , (3) w her e t he a ction alleged to be impr oper pr oselyt ism take s p la ce, a nd (4) the nature of the a ction. Each of these var iables is la id out on a scale, and using the scales together one can see where the va riou s states and other bodies that have considered the question have sought to draw the line between proper and improper action. As will be apparent, the framework is an in complete one, and does not generate any answers of its own as to where th e line should be dr awn . However , it is hoped that the proffered fra mework will pr ovid e a st artin g poin t for a more focused discussion on the range of choices available to states consistent with international human rights standards. The array of scales are presen ted in the accompanying chart, and brief descriptions—relating back to the examples provided ea rlier in the a rticle—are presen ted in the followin g sect ion s. The crucia l decis ion for a st ate is where on the scales the proper point of intervent ion lies. It is this decision tha t is subject to in ter nation al supervis ion . Too grea t a restrict ion on proselytism may r esult in an exce ss ive bu rdenin g of per son s who wish to engage in it, ther eby pressu rin g them t o subm it t o punishment, stifling them in th eir ability to express th emselves freely or to manifest th eir religious beliefs, or even forcing them to relin quish t hose beliefs. Too grea t a restr iction may also result in a n excessive in terfer ence with th e availa bility of information upon which persons would like t o base t heir decision s regar ding religious beliefs or affiliation. On the other hand, too little restriction may result in excessive harm to targets, whether or not th ey have retained their beliefs or h ave changed their beliefs based on considerations other t ha n t heir own assessment of what has been presen ted to them by th e source. Different conclusions on where to intervene may be D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
330 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 based on different assessm ents by states of the relat ive cost of each of these ha rm s, or the likelihood of their being realized in actuality. The touchstone of the framework is the notion of coercion. It is a basic assumption that an in divid ual should be able to make a consider ed and un restr ain ed choice in m atters of religiou s belief and a ffiliation . Thus, the more that proselytism interferes with that ability to freely choose, th e more the regulatory power of the state may be attracted. Coercion exist s in a va riet y of forms. Sources ma y exert different form s of coercive aut hority and control over others. Targets may be more or less susceptible to certain types of action or certain sources. The loca tion of the a ction can contribu te t o coer cion where the freedom of the t ar get t o freely move in an d out of that place is restricted. Fin ally, th e na tu re of th e proselytism, in part icular the nature of any proposed exchange between source and target, may be more or less coercive.
A. The Ch aract eristics of the S ource 1. Coercive sou rces Attributes of the source, in particular as they pertain to the relationship between th e source a nd th e tar get, can be a determining factor in defining improper proselytism. Concern arises wh er e t he r ela tion sh ip is su ch that the target may not be able to exer cise free choice in acceptin g or resistin g the change in beliefs proffered by the source. Action that may be perfectly appropriate between two persons who are st ra ngers, (i.e. at “arms-length” from one another) may not be appropriate where there exists some physical, legal or economic advantage tha t the source has over the t arget . Exa mples of potent ially coercive sources include the state and its official representatives, private persons acting with state authority or endorsement, providers of important health or social services, and employers or employment superiors.220
220. One coercive relationship that is generally left untouched by States is that between paren ts an d children. Indeed, inter nat ional hum an r ights instr umen ts recogn ize th at pa re nt s h av e a con sid er ab le i nt er es t i n i nfl uencing th e r eligi ous upbringing of their childr en. See Un ivers al Decla ra tion, supra note 80, ar t. 26(3 ); ICCPR, supra note 24, a rt . 18(4); ICESCR , supra note 209, art. 13(3); European Convention, supra not e 24 , Fi rs t P rot ocol, ar t. 2 ; Ame rican Con vention, supra note D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 331
The state is, by nature, a coer cive crea ture in rela tion to those that are subject to it. Acts of proselytism by the state or its officia ls can amount to acts of improper coercion, wh ich, in the words of the Hu man Rights Committee, include “[p]olicies or pr actices havin g t he . . . in ten tion or effect” of “compell[ing] believers or nonbeliever s t o adh er e t o their religiou s beliefs and congr ega tion s, to recant their religion or belief or to conver t.”221 Whether an action rises to this level of com pu lsion depends, at least in part, on the official position of the source and its relationship to the target. An action by a state official in the course of their legislative, administrative or judicial duties may have lit tle e ffect on th e public in general, but may have a much greater effect when the target’s person or interests are controlled by, or directly influenced by, that official. In this way, a distinction can be made between st ate a ctivit ies of a genera l character and policies and acts by state officials who have considerable authority over others. Officials of the latter type include those charged with the authority to direct or care for person s w ho are station ed, confin ed or committed to state institutions such as military installations, educational facilities, prisons, hospitals or nursing homes. Proselytism may constitute an abuse of that authority. The United Sta tes Supreme Court apparently adheres to the view that almost any form of religious expression by the state or person s a ctin g in an officia l ca pa cit y or with official en dor semen t raises an im permissible da nger of coer cion : [T]h e Con st itu tion guarant ees th at g overn m en t m ay n ot coe rce
an yon e t o . . . pa rt icipa te in re ligion or it s ex er cise ...... Th e d esign of th e Const itu tion is t hat pr eser va tion an d tr an sm ission of re ligiou s beliefs and worship is a responsibility
47, ar t. 12(4); CSCE Vienn a, supra note 47, principle 16g. A considerable problem can arise, however, where th e stat e is called upon to adjudicate mat ters of child custody and rights t o visitation as between pa rent s of different religions. S ee Hoffman n v. Austria, 255 E ur . Ct . H. R. (se r. A) (19 93); see generally S.E. Mu mford , The Judicial Resolu tion of Dis pu tes I nv olvi ng Ch ild ren an d R eligi on, 47 INT’L. & COMP. L.Q. 117 (1998) (discussing resolution of problems involving children whose parents are divorced an d a dh er e t o diffe re nt fai th s). 221. General Comm ent on Article 18, supra note 48, ¶ 5. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
332 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
and a choice com m itt ed t o th e pr ivate sph er e, wh ich it self is pr om ised fr eedom to p urs ue t hat m ission.222
The state and its officials ar e not th e only potent ially coercive sou rces. P riva te in st it ution s a nd individ uals can exert considerable in flu en ce over the ch oice of r eligiou s beliefs of another. Th e sit uation wh er e r eligiou s groups exe rcise some government authority or wher e t hey h ave b een gr anted or maintain an exclusive position over th e provision of educational, health or other social services has been raised previously with r egards to indigenous peoples. But governmen t authority or a monopoly position are not the only circumstances that ra ise concern . Someone in a private in stitu tion providing a needed service to another entrusted to their care, as in a hospital or a nursing home, ma y be a coercive sour ce. Similar ly, an employer or a hierarchical superior may be a coercive source, even when the target is free to look elsewhere for employment. In all these situations involving private sources, the t ar get is either unable to break th e relat ionship with the source, or there may be a st rong in cen tive to st ay in good relationship to the source. That incent ive may influence a person’s decision as to religiou s beliefs or affiliation . The European Court recognized this dynamic in a case involving th e conviction of two Greek m ilitary officers for improper proselytism of their milita ry subordinates: [T]h e hierarchical structures which are a feature of life in the
arm ed force s m ay colou r e ver y a sp ect of th e relations between military personnel, making it difficult for a subordinate to rebuff th e a pp roa che s of a n individu al of su pe rior ra nk or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exch ange of ideas which the recipient is free to accept or r eject, may, within the confines of militar y life, b e vie we d a s a form of harassment or t he a pp lication of un du e p re ssure in ab use of power.223
The Court t her efore det erm ined th at th e officers’ crimina l convict ion s for proselytism directed at their subordinates did
222. Lee v. We ism an , 50 5 U .S. 577 , 58 7, 5 89 (1 992 ). 223. Lar issis v. Greece, 140 Eur. Ct. H.R. (ser. A), No. 140/1996/759/958-60, slip. op. ¶ 51 (F eb. 24, 199 8). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 333 not viola te a rticle 9 of t he E uropean Con vention .224 However, the Court went on to hold that it was not improper for the military officers to engage in similar proselytizing activity when directed at civilians.225 In the context of private employment, the same conditions as articulated above by the European Court m ay be present as well.226
2. Foreign sou rces A related concern over the attributes of the source is the problem of foreign sources. In this regard, does the “foreign- ness” of the source r aise a ny concerns that cannot be adequat ely add ressed by regu la tion of all s ources, without dist inction between na tive a nd foreign? As described in the section above on colonia lis m and indigen ous p eoples , some of the resentment of foreign religiou s p er son nel s tem s fr om the conflu en ce of the r eligiou s intoler ance t hey e sp oused and the civil power they once possessed. Another concern, as in the case of Ch in a, m ay be foreign in ter fer en ce, t hrough religiou s groups, with th e int ern al political affairs of a sta te. Imbedded in the concern over foreign ers ma y also be t he n otion of economic advantage. Given t he va st discrepancy in wealth between many societies, foreigners operat ing in poor and developing countries may have far greater economic means than the local inhabitants and their native institutions. Regu la tion of the foreign source necessarily implicates the protection of the r igh ts of n oncit izens. As t o this point, the state’s obliga tion to pr otect human rights generally runs to anyone subject to its jurisdiction regardless of their citizenship status.227 With very few exceptions, aliens presen t wit hin a
224. See id. ¶ 55. 225. See id. ¶ 59. 226. Courts in the United Sta tes h ave recognized tha t policies or actions by private employers or employment su periors that en coura ge adh eren ce to cert ain religious beliefs, such as m an dat ory pr ayer session s, can viola te la ws pr ohibitin g dis crim ina tion on th e bas is of religion in employment. S ee EE OC v. Townley E ng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 19 88), cert. denied, 489 U.S . 1077 (1989); Youn g v. South wester n Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975); Meltebeke v. Bureau of La bor an d I nd us ., 903 P .2d . 35 1 (Or . 19 95). 227. See Hu ma n Righ ts C omm itt ee, General Com m ent N o. 15 (27 ) on t he P osit ion of Aliens Under the Covenant, U.N. GAOR 28th Sess., J uly 22, 1986, ¶¶ 2, 7, U.N. Doc. CCPR/C/21/Add.5/Rev.1 (noting that “the general rule is that each one of the rights of th e Cove na nt [on Ci vil a nd Poli tica l Righ ts ] mu st be gu ar an te ed w ith out D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
334 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 state should have the same rights as citizens.228 It is recognized, however, that foreigners do not have the right to enter any particular state.229 On the other hand, once a state has opened it s d oors t o foreigner s, it must do s o wit hout discr im in ation .230 Rest rict ion s that are targeted specifically at foreigners, such as those of China and Ukra ine, or restr ictions in ten ded by their terms to fall m ost h eavily on foreigner s, must be carefully scrutinized to ensure t ha t t hey a re based on a legitim at e aim and that they set out rea sona ble an d objective criteria in pursuit of that aim. In particular, in the case of restrictions on foreign sou rces it is im por tant to iden tify p olicies ba sed on su ch subjective inter ests as (1) the disapproval of the religiou s message that foreigners seek to spread (either because it is n ew to th e na tive t err itory or ma y conflict with the message of native religiou s groups) or (2) the desire t o maint ain a particular pattern of religious adherence. These considerations, divorced from any of the specifica lly men tion ed gr ounds for lim it ation s on right s to freedom of religion or exp ression, impermissibly favor some religions over others. As a final matter, it is important to carefully distinguish between economic advant age as between religious groups ‘competing’ for adherents, and an economic advantage that the source may have over the t ar get. E conomic adva nt age in th e former case must fall under th e ru bric of protection of certain religion s and should be subject to the constraint s discussed above. In th e later case, t he economic advant age of the foreign source ma y weigh directly on the ability of the t arget to act
dis crim ina tion between citizens and al ien s” wit h e xcep ti on of a rt . 25 on p olit ica l rights). Id. ¶ 2. 228. See id. ¶ 2. 229. See id. ¶ 5. 230. To the exten t th at t he foreign source may not even be present in the territory of the State, as, for example, where contacts and communications are made across borders, it should be noted that the right to freedom of expression includes the fre edom to receive information “regardless of frontiers.” See Uni vers al D eclarati on, supra note 80, a rt . 19; ICCP R, supra note 24, ar t. 19(2); European Conven tion, supra note 24, ar t. 10(1); Amer ican C onven tion, supra note 47, a rt . 13(1); Copen ha gen Docu m ent , supra note 58, ¶ 9.1. Communications across borders ha s been recognized as pa rt icul ar ly im por ta nt in t he cas e of r eligi ous groups maintaining contacts with hierarchical institutions located in a different State and for religious minorities that are sepa ra ted by int ern at ional front iers . See Declar ati on on R eligi ous In toler an ce, supra not e 47 , ar t. 6 (i); Mi nor iti es Decla rat ion, supra not e 58 , ar t. 2 (5); Fr am ewor k Convention, supra not e 58 , ar t. 1 7(1); Copen ha gen Docu m ent , supra note 58, ¶ 32.4. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 335 without coer cion . Because the harm in t his regard, discussed below, occurs regardless of the foreign or nat ive iden tit y of the source, there does not appear on this point to be a need to regulate foreign sources in a distinctive manner.
B. The Ch aract eristics of the Target The primary concern with the attributes of the proselytism target relates to the perceived su scept ibilit y of the t arget to the types of persu asion (and, pot en tially, coer cion) that may be employed by different sources. In essence, the greater the perceived “vulnerability” of the target, the more likely that proselytism directed towards it will be restricted. This principle is manifested in a variety of ways. For instance, some of the target’s vuln era bility m ay result directly from its relat ionship to the source. This wa s d iscuss ed above in rela tion to hospital pa tien ts, pr isoner s, em ployee s, and s o on. Another type of vulnerability stems from the nature of the target, and m ay r aise con cer n rega rdless of t he id en tit y or the tactics of the source. Certain people m ay be su scept ible t o a change in religiou s beliefs, as they might be susceptible to persuasion in any ma tt er. In t his category fall children , as well as ta rgets th at ar e un edu cated, naïve, or gen er ally weak or unsure of them selves. It is app aren tly on this basis that the Greek proselytism statute prohibits “taking advantage of [the] inexperience, . . . low int ellect and naivety” of the target.231 Another example is that portion of the Orissa statute that includes the use of a “threat of divine displeasure” within the definit ion of conversion by force.232 This provision was sustained by t he Orissa High Cou rt ba sed on the need to protect those wit h “un developed m in d[s ]” from the “numb[ing of] the mental faculty” that such threats create.233 A distinction may be drawn her e between th ose persons who are sufferin g from some form of physical or mental incapacity and those persons whose decision-making capacity may be affected by certain socia l or cultural factors. In the ca se of th e former, the law will frequent ly provide protection against others taking advantage of such incapacity by not acting in their best
231. Kokkin akis v. G re ece , 26 0 E ur . Ct . H .R. (se r. A) at 12 (1 993 ). 232. Yulith a Hy de v. S ta te , 19 73 A. I.R . 11 6 (Or i.) 121 (I nd ia ). 233. Id. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
336 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 interests. In the case of the latter, the underlying factors can be addressed (particularly in the form of education and exposure to the beliefs of other s) in order to enhance the target’s decision-makin g capa city. Other important attributes of the target are more explicitly tied to types of action that are considered to be improper. For example, a person who is needy may be more susceptible to financial inducement than one who is not; a person wh o is dependent on a particu la r facility for hea lt h care or food assistance may be more susceptible to its proselytism than those who are not, and so on. These types of vulnerable tar gets include persons in dist ress or in n eed a s mentioned by t he European Court in Kokkinakis.234 A further exam ple comes from Nepal. The Nepalese governm ent h as ar gued tha t legal provisions against conversion and proselytism in that country are necessary to guarantee the rights of “weak person[s]” and “reflects the inten t to discourage the anomaly in a socio- economically weak society where insta nces of involun ta ry religiou s conver sion are fou nd t o have taken place by m ea ns of financial ent icemen t a nd other tempta tions.”235 This exam ple illustrates the important point that the means used to address concern over the vulnera bility of the target should correspond to the type and extent of the a ctivity of the sour ce. In this instance, can a bla nket prohibition on all conver sions result ing from proselytism be supported by a concern with the weakness of certain targets to financial and other inducement s? A rule directed at that sp ecific behavior may ser ve t he same fu nction and not un duly restr ict the freedom of others, including those wh o may n ot be su bject to the same for m of persu asion.
C. Where the Action Takes Place Where the proselyt ism takes place m ay h ave s ome impact on the necessity of its restriction in accordance with the lik elihood that the target is in that place by choice and is free to leave. A state’s determination to respect the priva cy of the
234. See Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 12. 235. Im plem ent ati on of the Declaration on the Elim ination of Al l For m s of In toler an ce and of Discrimin ation Based on R eligion or Belief, U.N. ESCOR, 50th Sess ., Pr ovisi onal Agen da It em 20, C omm iss ion on H um an Righ ts , ¶ 66, U .N. Doc. E/CN.4/1994/79 (1994) [hereinafter S pecia l R app orteu r’s Report 1 994]. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 337 home may lead t o a restrict ed abilit y t o regula te proselytism that take s p la ce in the h ome of t he source or of a willing target. On the other hand, proselytism in the home of an unwilling target may be subject to greater restr iction. A similar dichotomy exist s w it h respect to places of wor sh ip or religiou s education. Proselytism is an expected manifes tation of religiou s belief when it ta kes place at the place of worship or in the religiou s classroom of the source, at least as long as the targets are at th ese places volun ta rily. It can be considered to be an unwarranted intrusion wh en it takes place a t the pla ce of worsh ip or in the classroom of the target. It is to this situation, among others, that la ws pr otect in g r eligiou s w orsh ip from disturbance are directed. Other distinctions can be drawn with respect t o places open to the public. For instance, prea ching or leading worsh ip in a church or synagogue is differen t t ha n doing th e same a ctivity on the street or in a public pa rk. The difference lies in the listeners; in th e former case they ar e likely to be there volunta rily, while in th e latter the speaker also reaches those who may have chosen not to listen.236 On t he other ha nd, while pra ctically all persons use the public streets and other public places, they are also likely to be free to move to other places if occasionally confronted with unwanted proselytism. For this reason, pr oselyt ism may be permit ted (su bject to sa fety considerations) in cer tain pu blic places lik e streets or parks to a greater extent than in oth ers. The sa me freedom to leave cannot be said of other public places where persons ma y be, for the most pa rt, required to be present, such as government offices, courtrooms, schools, and other public facilities.237
D. The Nature of the Action The most sign ifica nt factor in the separation of improper from proper proselyt ism is th e na tu re of th e action, in the sense of its tendency to create coercive pressures on the target. In a
236. See Kun z v. New York , 340 U.S . 290, 298 (195 1) (J ack son , J ., d iss en ti ng ); Niemotko v. M ar yla nd , 34 0 U .S. 268 , 28 2-83 (195 1) (F ra nk fur te r, J ., con cur ri ng ). 237. An additiona l attr ibut e consider ed by th e Un ited S ta tes S upr eme C ourt in the regulation of s pee ch, in clu din g pr ose lyt ism , in pu blic p la ces is t he deg re e t o wh ich the pla ce is his tor ical ly “devot ed t o as sem bly a nd deb at e” or has been opened by the State “for use by the public as a place for expressive activity.” Perr y E du c. Ass’n v. Perry Loca l E du cat ors’ Ass’n, 460 U. S. 3 7, 4 5, 4 6 n .7 (1 983 ). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
338 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 loose way, t he potentia l for coercion lies in the n ature of t he exchange, whether proposed or actually realized, between the source and target. At one end of the scale lies the bare communication of religiou s beliefs wh ich , with som e sign ifica nt exceptions, is gen er ally not conside red to be im pr ope r. At the other end lies a conver sion or change in beliefs t hrough viole nce or threa t of viole nce. This met hod appears to be univer sally denounced not only as a violation of the rights of the target, but also as contrary t o current religious views r egarding t he appropriate means to bring people to the faith. Between these two extremes lies a broad range of actions, and it is within this area th at ma ny sta tes have sough t t o dra w the dividin g line between proper and improper proselytism. The exchange of religious ideas or the communication of religiou s beliefs wher e t he t arget is mer ely lis ten in g does not raise sign ifica nt concerns about coercion. These are the underlying facts of the Kokkinakis case, wh ere Mr. Kokkin akis was found by the Greek courts to have enga ged in religiou s discussions using sk illful explanations and “in a pressing manner.”238 The European Court determined that a criminal convict ion on this ba sis w as a viola tion of article 9 of the European Convention. The facts of the Othman case also fall into this category, where the petitioner ha d allegedly participated in religiou s meetings and seminar s; the Su prem e Cou rt of Malaysia determined that this activity, without more, did not pr ejudice the security of the state.239 There are, however , some significant except ions to this principle. One exam ple is t ha t of the Sudan, wh ere th e law crimina lizing aposta sy encompasses anyone who “propagates for the renunciation of the Creed of Islam.”240 Laws prohibiting blasphemy or injury t o religious feelings tha t penalize statements solely because they are not in conformity wit h another religion make up a further exception to this principle. Other significan t except ions relat e t o the exch ange of r eligiou s ideas in conjunction wit h one of t he ot her factors discussed above. Exam ples of this include the prohibition in the Un ited
238. See Kokkinakis, 260 Eu r. C t. H .R. (se r. A) a t 2 1; supra note 109. 239. See supra note 171 and accompanying text. 240. See Special Rapporteur’s Report 1993, supra not e 87 , ¶ 56; see also supra note 87. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 339
States of the discuss ion of religiou s ideas or the exch ange of religious views by t he state or those actin g in an official capacity or with official endorsement.241 The same may hold true for the discussion of religious su bjects by persons working in st ate fa cilities in wh ose care others have b een placed, such as prisons or hospitals. The Larissis case ext ends this principle to discussion by a h iera rchical superior or em ployer, at lea st in certain settings.242 In th ese situations, even t he m ost ba sic excha nge ma y be tain ted by the coercive nature of the relat ionship with in which it t akes place. A furt her species of religious discussion th at is genera lly thought not to be coercive is that wh ich includes a denia l of the truth of the beliefs of other s or is other wise critical of t hose beliefs. Th e ca se la w of t he Greek courts, as rela ted in the Kokkinakis case, has held that spiritual teaching that “demonstrates the errors of other religions” is not prohibited proselytism.243 Likewise, in Punjab Book Society, the Lahore High Court determined that attempts “to show that [one’s] religion is the best in the world” did not evidence a “deliberate and malicious” intent to insult the religious feelings of another.244 Furthermore, the European Court determined that the English law of blasphemy a nd th e Aust ria n law prohibiting injury to religiou s feelings did n ot viola te t he r igh t to freedom of expression, in pa rt , because they did not pen alize t he denia l of th e existence of God or other r eligious beliefs or all exp ression of opinions that are hostile or offen sive t o the Ch ristia n religion .245 However, when these expressions are delivered in a certain manner, sta tes may feel compelled t o prevent t hem. F allin g at this point on th e scale a re t he “extr emely offensive” views, with “n o reliable source to justify its acceptance as correct,” that the Pakistani Cou rt determined may fall within the statute prohibiting injury to religiou s feelings.246 Likewise, t he
241. See supra note 222 and accompanying text. 242. See Larissis v. Greece, 140 Eur. Ct. H .R. (ser. A), No. 140/1996/759/958-60, slip. op. (F eb. 24, 199 8). 243. Kokkin akis v. G re ece , 26 0 E ur . Ct . H .R. (se r. A) at 13 (1 993 ). 244. Punjab Reli giou s Book Society v. State [1960] P.L.D. 629 (W. P.) Lahore 637 (Pak). 245. See Ott o-Premin ger-In stit ut v. Aust ria , 295 Eu r. Ct . H.R. (ser . A) (19 94); Wingr ove v. U ni te d K in gdom , 24 Eu r. H. R. R ep . 1 (1 996 ). 246. Punjab Book S ociety , P. L.D. at 638; see supra note 120 and accompanying D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
340 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999
“gratuitously offensive”247 expressions t ha t “insult [] . . . an object of ven er ation ”248 of the Austrian law or the “contemptuous, reviling, scurrilous, or ludicrous matter” prohibited by the English blasphemy la w ar e also in th is category.249 It is here that the United States parts company with the European Court and others, in that the proselytism at issue in some of the J ehovah’s Witness cases was protected regardless of the hostile, abusive, and offensive nature of t he activity.250 The next categor y of activity in clu des p romises or offer s of something of value to the target in exchan ge for their chan ge in beliefs or affiliation . A divis ion may be made her e bet ween , for la ck of more precise terms, “tangible” and “intangible” benefits. An example of an inta ngible benefit arose in the Orissa proselytism statute, where the term “inducement” was defined to include th e “grant of any ben efit.” The High Cour t of Orissa inva lidated this provision of the statute, as it believed that inducement as th erein defined could include pu rely spiritu al benefits such as the promise of an eternity in the hereafter.251 Spiritual benefit s a re, of cou rse, one of t he prim ary r ea son s for holding religious beliefs, an d it is difficult t o imagine ma kin g a principled division between proper and improper in this area. The Greek provision that penalizes as improper proselytism an offer of “moral support” may be subject to similar difficulties.252 The offer or gra nt ing of ta ngible ben efits, such as money, “material assist ance,” and “social advantages,” in exchange for a change in religious beliefs or affiliation is prohibit ed by a number of proselytism stat ut es, including those of India, Israel, and Greece.253 Likewise, the E uropean Court in t he Kokkinakis
text. 247. Otto-Prem in ger, 295 Eu r. Ct . H .R. (Se r. A) at 19; see supra note 137 and accompanying text. 248. Otto-Prem in ger, 295 E ur . Ct . H. R. (Se r. A) a t 1 2; see supra note 132 and accompanying text. 249. Wingr ove v. U nit ed K ing dom , 24 E ur . H. R. Re p. 1, 14 (19 96); see supra note 126 and accompanying text. 250. See supra note 39 and accompanying text. 251. See supra note 201 and accompanying text. 252. Kokkina kis v. Gr eece , 260 Eu r. C t. H .R. (se r. A) a t 1 2 (199 3); see supra note 103 and accompanying text. 253. See supra notes 103, 108, 201, a nd a ccompan ying te xt; Pen al Law Amendment (Ent icemen t t o Cha nge Religion) La w, 5738–1 977, reprinted in 32 LAWS OF THE STATE OF ISRAEL 62 (1 977 /78). D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 341 case iden tified t his type of exch ange, as in “offerin g m ater ia l or social advantages,” as a possible example of improper proselytism.254 On the reverse side of the offer of benefits is the in jury of or the threat to withhold, injure, or destroy something of value. Again, there a rises the question of intan gible versus ta ngible value. The injury to religiou s feelings in a gra tu itously offensive manner may fall into the category of injury t o som ething of an int an gible nature. Likewise, the “threat of divine displeasure” prohibited by the Orrisa proselytism statute may also fall into th is cat egory.255 Threats of a more tangible nature include that of “social ex- communication,” as found in the Orissa statute.256 In this categor y sh ould also fall p olicies and practices such as “those restricting access to education, medical care, employment, [polit ica l rights] or the rights guaranteed by . . . other provisions of th e [ICCP R]” that are identified by the Human Right s Com mittee as tantamount to coercion employed to compel conver sion.257 Finally, on the far end of the scale, ar e action s such as the threat or use of physical violence that are mentioned as improper practices by both t he Hu ma n Righ ts Committee and the European Court.258 The nature of the excha nge in these latter circumstances is such that the targets relinquish their religiou s beliefs or affiliation in order to preserve their rights, health, and even their lives.
VI. CONCLUSION Proselytism is a contr oversial a ctivity, in that it is likely to result in controversy between sources and targets, and between religiou s or political communities that may become identified with either. In m an y cases, the righ ts of religious minorities are opposed by t he in ter ests of t he domin ant religiou s or polit ica l group. Con flict s a rise between religions and between denominations within religion s. Th e state m ay wish to take sides or feel compelled to join in these controversies. The
254. Kokkinakis, 260 Eur . Ct. H.R. (ser. A) at 21. 255. See supra text a ccompanying notes 200-01. 256. See id. 257. General Comm ent on Article 18, supra note 48, ¶ 5. 258. See id.; Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 21. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
342 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 dynam ics of state involvement under these circumstances depends upon the relationship that exists between the state itself and par ticular religious groups. Such a mix of forces creates a situation in which the rights of religious dissenters, minorities, or nonbelievers are particularly at risk. Because international instruments are generally silent on the issu e of proselyt ism, the effect of international human rights obliga tion s on conflict s engendered by proselytism has been minimal. Interna tional bodies ha ve eith er n ot dea lt extensively with th e problem or h ave n ot been part icular ly aggressive in definin g th e pa ra meters of the freedom to engage in proselytism. This silence, or relu ctance to deal wit h proselytism issues, may be the result of the widely divergent practices of states, ranging from severe limitations on the activity in all of its forms to broad freedom to engage in t he activity regardless of the effect it may have on the target. Developing international standards to govern proselytism with in th is ran ge of state pra ctices is no easy task. H owever, a carefu l review of international and state practice yields a number of important principles that can guide states in their effor ts to address proselyt ism conflicts consistent with th eir in ter nation al obliga tion s. First, the purposeful attempt to change another’s religiou s beliefs or affiliation is a manifestation of re ligion or belief a nd falls with in t he scope of the freedom to engage in such activity recognized in international human rights instruments. Second, the freedom to engage in proselytism m ust be protected irrespective of the content of the views asserted by the source, the manner in which those views are asserted, and whether the inter ference stems from state or private action. In this regard, the views of the domin ant religiou s or ideologica l com munit y on the scope of th e freedom t o engage in proselytism, as well as the action s of such communities vis-à-vis the state a nd r eligiou s minorities ar e extremely important. Third, as with all freedoms, the fr eedom to en ga ge in pr oselyt ism is not unlimited. However, restrictions on proselytism must further a secula r in ter est (i.e. r estrict ion s ca nnot further purely religiou s or ideological goa ls), and the restrictions must be proportionate to the realization of those interests. In practice, the interests asserted by states to support restrictions on proselytism are typically the protect ion of (a) p ublic ord er or (b) the right to D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 343 have or mainta in a r eligion or belief without coercion. The two interests are inter rela ted, in that coer cive met hods of proselytism ma y provoke shar p responses. Fourth, wit h respect to the protect ion of pu blic order , th e state’s response to pr oselyt ism must be direct ly p ropor tion ate to th e disorderly n at ur e of the activity itself, and only in extrem e circumstances (and for temporary periods) can it be relat ed to the response of others to the activity. In other words, sign ifica nt resistance t o the expression of non-coer cive met hods of pr oselyt ism is in dicative of a need for the state to address its obliga tion to promote peace, tolerance and mutual understanding between communities, rather than a need to restrict proselytism. Fifth, with respect to improper coercion, whether an act of proselytism is improperly coercive will depend upon the characteristics of the source, the characteristics of the target, the place wh er e t he a ct takes place a nd t he n ature of t he a ct it self. The combination of circumstances in each case is important. The location of an act, or a particular relationship between source and target can in trodu ce a n ele men t of coer cion to an act that might not be coercive in other circumstances. Sixth, unwanted, annoying or offensive acts of proselytism—even though they may result in social disruption—are not necessarily improperly coercive. Indeed, these conditions reflect circumstances under which a person can make a free and informed choice regarding religious beliefs. Fin ally, states must walk an admittedly fine line between securing minimum conditions for a free choice of religion or belief an d pr otectin g against er osion of the a bility to maintain the religion or belief that has been chosen. Fir st and for em ost , the ability t o maintain a choice is eroded under circumstances where the target is forced to choose between som et hin g of necessity (such as th e exer cise of their righ ts, education, employment , or health care) and an abandonment (however br ief) of their religion or belief. In the modern welfare state, where the state itself ensures and secures rights, and guarantees certain necessities without discrimination, perhaps only state action needs to be so controlled in this regar d; but where the state cannot or does not secure r igh ts a nd p rovid e for necessities, private actors m ay a lso need t o be regula ted. A more difficult area to address is where the target is put to the D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
344 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 choice of obtaining or protectin g somet hin g of value (whether ta ngible or intangible, su ch as t heir religiou s feelings) and a n abandonment of religion or belief. In th ese situ at ions, sta tes should be guided, in t he words of Arcot Krishna swa mi by th e need “to ensure a gr eater m easure of freedom for society a s a whole” according to the circumstances of the particular case.259
259. KRISHNASWAMI STUDY, supra note 8, at 16. D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 345 Person without Person capacity,e.g., incompetent child, mental child, Homeor place of worshipof target unwilling Statedirectly official controling the personor interests others, of e.g., officers, military wardens, judges, educationalofficials Personrestricted by others,e.g., patient, prisoner, student accomodation Placeof employmentor public humanitarian,recipient health, service social or withState authority endorsement,or health, e.g., social,or educational provider service refugees, e.g., others, Private person acting person Private Persondependent upon Employeror supervisor Employee Public facility, such as courthouse, facility, Public administrativemilitary school, offices, hospital or base, Valid Regulation of Proselytism Regulation of Valid Provider of important of Provider social or health private service Poorperson Publicstreet, square, or park Foreigner Weak,gullable, uneducatedor naïveperson Attributes of the AttributesSource: of Stranger Target: the of Attributes CompetentAdult Invalid Regulation of Proselytism InvalidRegulation of WhereOccurs: the Action Homeor place worship of source of or willing target willing or Nature of the Action: the of Nature VariablesConsidered in Regulating Proselytism D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
346 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 (1)Protect against fraud and fraud imposition Public (2) and peace fraudulent appeals order streets clean Prevent (2) (1) Keep (1) Public None indicated Interest Asserted Invalidated (nostate determination whatof is religious cause; to danger no present disturbancethe peace) of presentedauthorities to pre-approval) for Invalidated absolute (officials’ determine to authority whomay canvas revoked; ideasshould not have to be (reason) Invalidated (absoluteprohibition press) on of freedom to limits Upheld/ Invalidated Speech Religion Speech Press Press Freedom Implicated describing pamphlet describing to offensive terms in their printing; one printing; their alsoplayed record a passerby for theCatholic religion. Witnesses went Witnesses door-to-doorselling pamphlets religious soliciting and contributionsfor Three Jehovah’s Three coverprinting. offeredreligious and booklets to donations solicited without a permit, a without Jehovah’s Witness, Jehovah’s distributedreligious without tracts permission. Violation Witness Jehovah’s thelaw) peace (common (1) Approval secretary (1) of public of (2)Prohibited inciting a breach of Id. at 302. such case is a religious one or is a is or one a religious is case such bonafide object charity of or to and philanthropy conforms reasonablestandards andintegrity.” efficiency of welfarecouncil required to solicit supportthat forprovided religious, cause; charitable philanthropic or secretaryshall determine “whether Id. at 158. fr omfr a u d.” is not of good character isnot good of or is not a free canvassingproject for door; permit “canvasser door; refused if Permit required to solicit, canvass, Permitsolicit, to required distributecirculars or call door-to- Permission of City Manager City Permissionof requiredto distribute anyliterature kind. of Statute or Regulation or Statute Cantwell v. Cantwell Connecticut U.S. 296 310 (1940) , 308 U.S. 147 308 (1939) , TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of Schneider v. New v. Schneider J ersey Lovellv. City of Griffin U.S. 444 303 (1937) , Case Name Case 1953) - (1937 D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 347 (1) Public (1) order Publicpeace (2) Safety (2) and convenience inuse of Public Interest public highways Asserted fee met expense to expense met fee and act administer order) maintain Upheld (Statecan prohibit use in words of place public likelyto cause breach of thepeace) time, place and manner; and place time, Upheld (limited nondiscriminatory authorityto adjust for (reason) Upheld / / Upheld Invalidated Speech Speech Assembly Freedom Implicated damnedFascist,” “the that said and whole[city] are . . . government Fascistsor agents of Fascists.” Id. at 569. distributingreligious a with argument called official public hima “damned and racketeer” “a “information march” “information Jehovah’s Witness, Jehovah’s the on literature an in street, engaged in an in engaged withouta license. Jehovah’s Witnesses Jehovah’s Violation Eighty-eight wordto any other person who is in any street lawfully other or publicplace.” Id. at 569. offensive, derisive offensive, or annoying “No person shall address any address shall person “No required to hold parade and parade hold to required procession(“organized formations persons”) of on public streets. at575. Id. Statute or Regulation or Statute License (and fee) corresponding License TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of Hampshire U.S. 568 315 (1942) , Case Name Case 1953) - (1937 Chaplinskyv. N ew Coxv. N ew Hampshire U.S. 569 312 (1941) , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
348 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 (1) Plenary (1) power over power streets (2) Regulation of commercial advertising Public Interest Asserted 316U.S. 584 (1942))) Invalidated have cannot (State to power absolute prohibituse streets of for speech) MurdockPennsylvania v. and (1943), 105 U.S. 319 thedissenting opinions in , entered in this case and case this in entered invalidatingstatutes thefor reasons stated in Upheld ( Butsee (vacating (1943) judgmentspreviously U.S. 103 319 (reason) Upheld / / Upheld Invalidated Religion Press Speech Religion Press Freedom Implicated Violation distributedhandbills Jehovah’s Witness on a on Witness Jehovah’s street public advertisingreligious meetingand religious purchase. for books (1) Jehovah’s Witness Jehovah’s (1) Jehovah’s (2) door- went Witnesses distributing to-door and books religious the books; for Witness Jehovah’s (3) soldreligious the on pamphlets a without street license; solicitingcontributions literature religious sold withouta license. Unlawfulto distribute sidewalk. or handbills street on (3)License required any on carry for to any person transient business. of books; of goods; sell to required License (2) (1)License required distributors for book transient and agents Statute or Regulation or Statute JamisonTexas v. U.S. 413 318 (1943) , TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of Case Name Case 1953) - (1937 Jones v. Opelika v. Jones U.S. 584 316 (1942) , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 349 Regulation of purely of commercial activity Protectionof None child indicated welfare Public Interest Asserted enjoyments,especially of thosewho cannot afford thetax) controlor suppress their Invalidated (taxlaid on to exercise used be can of freedoms Upheld (State’sability to than control greater is children theparent’s ability) “administrative censorship,” id. at422) officer“extreme form” of Invalidated (grantingor withholding complete in permit municipal of discretion (reason) Upheld / / Upheld Invalidated Religion Press Parent’s discretionin Religion raisingchild Speech Religion Press Freedom Implicated contributionsin exchange. distributereligious tractsfor sale or donation. religious literature religious sought and on street corner to corner street on wentdoor-to-door anddistributed accompanied her accompanied ward old year nine Jehovah’s Witnesses Jehovah’s Jehovah’s Witness Jehovah’s them without them applyingfor a offeredreligious sought and books contributionsfor permit. Jehovah’s Witness Jehovah’s Violation Unlawful for (1) anyone to furnish to anyone (1) for Unlawful amerchandise child sale;or (2) for parentor guardian to permit child or “merchandise of any kind.” kind.” any of “merchandise or at106. Id. tosell merchandise in street place. public or required to solicit orders for goods orders for requiredsolicit to License (and fee) corresponding License merchandise. Permitrequired to sell or solicit ordersfor books, wares, or Statute or Regulation or Statute Prince v. Prince Massachusetts U.S. 158 321 (1944) , Murdock v. Murdock Pennsylvania U.S. 105 319 (1943) , TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of 318 U.S. 418 318 (1943) , Case Name Case 1953) - (1937 Largent v. Texas v. Largent D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
350 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 (1)Protect Prohibit householder Public Interest privacy acts (2) Crime (2) Asserted detrimental prevention to peace and peace to safety during war during itsunilateral decision individual for thatof homeowner) couldnot be criminal) Invalidated may (city not substitute advocacy of those beliefs beliefs those of advocacy (reason) (1943)held state cannot children force to violate by religiousbeliefs therefore, salutingflag, Upheld / / Upheld Invalidated Barnette, U.S. 624 319 Invalidated ( State Virginia West v. Education of Board Speech Speech Press Freedom Implicated Speech Press wentdoor-to-door to leaflets distribute advertisinga religiousmeeting. Violation Witness Jehovah’s obeyed, rather than rather obeyed, statelaw. Id. at 586. (1) criticized U.S. criticized (1) should be law” Jehovah’s Witness Jehovah’s and war(2) policy; distributed theflag as idol and worship theevent of a “Jehovah’s conflict, pamphlets saluting condemning counselingthat, in Unlawful for person distributing person for Unlawful handbills,circulars other or advertisementsdoor. the to to summon resident Statute or Regulation or Statute Unlawfulengage to (1) in teaching printed dissemination or of materialencouraging distribute disloyalty (2) to government; the tending reasonably matter printed stubborn of attitude an create to refusalto respect the flag government.or the TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of Struthers U.S. 141 319 (1943) , Case Name Case 1953) - (1937 Martinv. City of Taylor v. Taylor Mississippi U.S. 583 319 (1943) , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 351 Rightof private owner to owner regulate conductof guests None indicated Public Interest Asserted Invalidated as (same town) owned privately Lovell for but than itinerant) than except for resident for except rather and Murdock Invalidated (indistinguishablefrom Opelika (reason) Upheld / / Upheld Invalidated Religion Press Religion Freedom Implicated company. company-owned without town the of permission distributedreligious literatureon sidewalkof Jehovah’s Witness Jehovah’s license. them without a without them contributionsfor booksand soliciting who was a resident a was who the made town, of hisliving by going door-to-dooroffering Violation Witness, Jehovah’s premisesanother of after having beenwarned not to do so. Unlawful to remain on the on remain to Unlawful selling books in town. books selling Statute or Regulation or Statute Flat license fee charged Flatagents to fee license Marshv. Alabama U.S. 501 326 (1946) , TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of Case Name Case 1953) - (1937 Follettv. Town of McCorm ick U.S. 573 321 (1944) , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
352 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 Security Controlof Public Interest noise Asserted Invalidated as (same Marsh ) Cantwell ) (reason) Lovell and Upheld / / Upheld Invalidated Invalidated guiding standards (no policechief’s decision; sameas Religion Press Freedom Implicated Speech villageowned by the Federal U.S. governmentwho, whenasked, refused tocease distribution the leave or village. used sound used to equipment amplifylectures on religioussubjects afterpermit his do to Violation distributedreligious a in literature Jehovah’s Witness Jehovah’s had so expired. Jehovah’s Witness Jehovah’s Permissionthe of Chief Police of to refuse the to leave to premises afterhaving been notified to do so. Statute or Regulation or Statute requiredto use sound places. public in amplification devices Unlawfulfor any “peddler or merchandise” or hawkergoods of Id. at 518. TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of 334 U.S. 558 334 (1948) , Case Name Case 1953) - (1937 S aiav. N ewYork Tucker v. Texas v. Tucker U.S. 517 326 (1946) , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
251] PROSELYTISM IN HUMAN RIGH TS LAW 353 Protectionof None publicpeace Public Interest specified andorder Protectionof Asserted public order public Invalidated ordinance (no prohibiting without park of use standards, no permit; totaldiscretion vested in cityauthorities; to threat of no evidence order; and peace discriminationon basis of religion) Invalidated (statutedid not prohibit Protestant or Catholic worship) (reason) Upheld / / Upheld Invalidated withoutcriteria specific invalid) generally orwithhold permit givendiscretion to grant Invalidated systems where (licensing official administrative Speech protectionof the laws Religion Equal Speech Speech protectionof the laws Religion Freedom Implicated Equal Speech Religion city authorities. city talksin a public having after park beendenied the by permission Baptistminister heldreligious permithad been Violation conductedBible meetingafter his revokedon evidence park. Jehovah’s Witnesses Jehovah’s meetingin a public thathe had ridiculed addresseda religious anddenounced other beliefs. religious Witness Jehovah’s Unlawfulto, in any street, hold (1) meetingfor public worship without religiousbelief; or (3) preach atheismagnosticism. or Statute or Regulation or Statute first obtaining a permit from the from permit a obtaining first commissioner; (2) police city ridiculeor denounce any form of Disorderly conduct prohibited. conduct Disorderly anypublic park.” Id. at 267. politicalor religious meeting in “No person shall address any address shall person “No TableUnited of States Supreme Court Cases Concerning the Regulation Proselytism of 340 U.S. 290 340 (1951) , Case Name Case 1953) - (1937 KunzNew v. York N iem otkov. Maryland U.S. 268 340 (1951) , Fowlerv. Rhode Island U.S.(1953) 67 345 , D:\ 1999-1\ FINAL\ STA-FIN.WPD Ja n. 8, 2001
354 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999