INGVILL THORSON PLESNER
2.1. The Evangelic-Lutheran Confession remains the public religion of the state. Inhabitants belonging to the Evangelical-Lutheran faith should raise their children in the same. 2.2. All inhabitants should enjoy the right to free exercise of religion.
This is the two-fold and, some would say, self-contradictory paragraph 2 of the Norwegian Constitution. The first part of the paragraph dates back to 1814 when the constitution was formed as a part of the process of national liberation from the union with Denmark. The second part of the paragraph was added first in 1964 at the 150th anniversary for the constitution. This paragraph lines out the two basic principles or pillars in the Norwegian politics of religion, by a) providing a basis for the state church system, and b) underlining the right to freedom of religion or belief.
In the first part of this article, the main characteristics of the Norwe- gian religio-political system are presented, with a focus on the relevant constitutional provisions, the Church Act of 1996 and the 1969 Faith Communities Act. Part two gives a brief overview over the main issues in the public discourse about freedom of religion or belief and state-church relations in the year 2000, addressing i.e. the efforts of Muslims to estab- lish a private Muslim primary school and the results of two trials where Secular Humanist as well as Muslims have claimed the right for their chil- dren to be exempted from religious education in the public primary schools.
I. STATE CHURCH, CHURCH AUTONOMY AND EQUAL TREATMENT? The ideal of securing both church autonomy and equal treatment within a state church system at a first glance seems a contradiction in terms, and certainly can not fully be realised within such a system. Nevertheless, 318 I. THORSON PLESNER these are ideals manifested both in religio-political legislation, jurispru- dence and practice in Norway, as we shall see in the following. According to the Constitution it is the King as the head of the church (article 4)1 who has the right and responsibility to provide statutes for the church liturgy and see to that the teaching of the church is in accordance with the Evangelic-Lutheran confession and doctrine (article 16)2. Church matters are to be discussed by the members of the government that are “confessing the state religion” (art. 27), which in practice means those who are members of the Evangelical-Lutheran State Church (the Church of Norway). Because of this clause, the constitution also decides that at least half of the government should be members of the church (art. 12). The church reforms in Norway during the last years have had as their overall aim to extend the autonomy of the church in relation to the state. As a result of these reforms, a Church Synod – meeting once a year – and a permanent Church Council have been developed. The eleven Diocesan Councils (consisting of the bishop, a priest and five lay peo- ple) are delegates at the Church Synod, electing candidates for the Church Council and the Council on International and Ecumenical Affairs at the annual Church Synod. More and more power to make decisions in matters affecting the inner life of the church have been del- egated to these new church structures over the last years. As stated in the Church Act of 1996, both the authority to decide the content of the church liturgy and the right to give statutes on the use of the church buildings have been delegated to the Church Synod. The church law of 1996 is in many ways expressing the results of previous debates on church autonomy and state church relations in Norway. It goes further than the former Church Act of 1953 in securing the self-governance of the church at all levels, especially at the local level. With the 1996 Church Act, the local parishes have the status as legal entities with rights and duties before the law, with the only restriction that they are and shall be a part of the
1 “The King” as head of the church according to the Constitution is in practice the government – or more precisely the part of the government being members of the Evan- gelic-Lutheran Church (cf. article 12). 2 The wording of this article states that the King has an overall responsibility for all church meetings and ceremonies, and for making sure that all preachers and teachers of the state church follow the proscribed norms of the Evangelical-Lutheran religion. It is clear that this article neither by intention nor by interpretation gives the King any competence in supervising the teaching of other (Christian) communities or churches than the Church of Norway. STATE AND RELIGION IN NORWAY 319
Church of Norway (art. 2)3. In accordance with the new “autonomous” status of the parishes, the employment of other church staff at the local level and the local church administration in general are now a task for the newly developed regional church councils (consisting of two elected members of each parish in the region, one representative for the munic- ipal authority, and one rural dean or priest appointed by the bishop), and no longer the responsibility of the municipal authority. But the provision of financial resources for the activity of the local church, church buildings, graveyards and for the church staff at the local level that is not employed by the state, remains a responsibility of the municipal authorities (article 15). In 1969 the new Faith Communities Act replaced the former law on Christian free churches that had been regulating the freedom of religion of these Christian faith communities since 18454. The Faith Communi- ties Act of 1969 underlines the right of individuals of all confessions to free exercise of the right to religious freedom, alone or in community with others. By stressing the universality of this right, the law takes into account the growing religious pluralism in Norway5. It also follows up
3 The church law hence gives the church at the local level far more legal autonomy than the national church body, the Church Synod, enjoys. This makes it interesting to discuss briefly what has up to now been a theoretical question: whether the Church of Norway – as a corporation existing of parishes being legal persons – might deliver a complaint against the state before the court, demanding the right to religious liberty in a certain case. Or would such a move be rejected referring to the fact that the church as such is at the same time part of the public administration, given the constitutional provisions introduced above, with the King (the Government) as its head. If one argues that the parishes as legal per- sons at the municipal level can go to court accusing the state for interfering with their affairs, one would have to cope with the fact that the church law also states that the parishes cannot be separated from the Church of Norway (§ 2). Yet, if one concludes that a com- plaint before the national courts – and hence also before the Human Rights Court of Stras- bourg – is not possible, the legal identity of the church of Norway as a faith community would be severely challenged, because faith communities as corporations have a right to have their cases tested before the Strasbourg court. There is established case law in this field, in connection with article 9 of the ECHR (cf. i.e. Canea Catholic Church vs. Greece). 4 The development towards better protection of religious freedom for all groups of believers has been very slow in Norway. The paragraph guaranteeing the general right to religious freedom (article 2) was added to the Constitution in 1964 at the 150th anniver- sary of the constitution. The paragraph preventing Jews from settling in Norway was removed in 1851 and the paragraph excluding Jesuits in 1956. Interpretations by court and legal experts made clear that despite the exact wording of article 2 of the Constitution (free exercise of religion) this article also protect the rights of non-believers not to hold or express a religious view. 5 In the year 2000 about 85% of the Norwegian population are members of the state church. The secular humanist association of Norway (the Norwegian Humanist Association) 320 I. THORSON PLESNER the second paragraph of article 2 of the Constitution, stating that all cit- izens should enjoy the right to free exercise of religion. The provisions of the 1969 Act concerning the rights and duties of different faith com- munities have as a basic intention to secure a high degree of equal treat- ment for different religious communities in Norway. By also including provisions for the Church of Norway in this law it is clearly stated that the state church is also a faith community. In its first chapter, the Act of 1969 gives rules for the registration of members in the Church of Norway and other faith communities (art. 3 to 9), and underlines the principle that no one can be forced to join or stay a member of a faith community against her or his will (art.2 and 10). For the church of Norway some of these articles are also included in the Church Act of 1996. The second chapter of the law on faith communi- ties contains rules regulating the rights and duties of other faith com- munities. The faith communities can decide whether they want to be registered by the state (art. 12-17). Non-registered faith communities enjoy most of the rights as registered groups do. Some rights are reserved to the registered faith communities. The law of faith communities of 1969 recognises the right of registered faith communities to have their own graveyard (art. 18), and to conduct marriage. The Act on marriages of 1991 creates in its article 12 an opening granting registered faith com- munities the authority to conduct marriages, when the community ful- fils the criteria for i.a. registration for faith communities as mentioned in the Act on Faith Communities of 1969. What characterises the Norwegian state church system compared to the systems as functioning in other Nordic countries or countries with a close connection between church and state, are the financial arrange- ments. There is no church tax. The Church of Norway gets its funding from the state as well as from municipal budgets. Further, a compen- satory system is developed so that the other faith communities shall enjoy the same support per member as the church receives. The Act on faith has about 63 000 members, and is the biggest religious-philosophical community after the state church in Norway. The Islamic communities altogether have about 60 000 mem- bers. There are several Christian confessions and free churches outside the state church with between 5000 and 40 000 members each in addition to the smaller communities of Buddhists, Jews and Hindus. In 1996 The Cooperation Council for Communities of Reli- gion or Belief was established in Norway. Representatives of the different faith communi- ties – including the Church of Norway – as well as the secular Humanist Association are members of this council. The increased plurality of faith communities during the last decades marks an important change in the Norwegian religious landscape. STATE AND RELIGION IN NORWAY 321 communities decides that registered as well as non-registered faith com- munities can receive state funding for their activities every year. The total sum equals the amount of money that the state church obtains. This subsidy is calculated starting from the subsidies that the state church receives per member each year (articles 19 and 19a). The churches and faith communities receiving such state support also have the right to financial support on the municipal level, according to a similar mecha- nism, namely, the support per member granted to the state church on the municipal level (art. 19, second paragraph). There is also an Act of 1981 (no. 64) on financial support to “life stance” communities. In this law it is stated that this kind of communities should enjoy the same rights to financial support as the faith communities are given in the 1969 law, both on the state and municipal level. Up until now, only the secular Human- ist Association has received this type of funding6. The principle of autonomy enjoyed by religious corporations can be seen as a basis for some exemptions allowed to faith communities with regard to some general laws of Norway. The 1978 Act on equal treatment between the sexes, states in its article 2 that the law does not regulate the “inner affairs” of faith communities. This means, that is, that there might be exceptions for faith communities from general rules prohibiting gen- der-based discrimination in employment cases. The provisions secures the right of the Church of Norway, the Catholic Church and other faith communities not to employ female pastors and bishops and the Muslim communities not to employ female Imams. During the last decades there has been a development within the Church of Norway, however, and now about 13% of the pastors are women. In 1993 the first female bishop was appointed. Despite this development, the Church of Norway has continued to defend the right to exemption from the general protection against gender-based discrimination because of the principle of church autonomy. A similar exemption for faith communities is given in the Labor Act article 55 A. This article provides a general prohibition con- cerning discrimination against people on the basis of sexual orientation and practice. The employment of priests with a homosexual orientation
6 The Norwegian Humanist and Ethical Association is the only registered community of secular humanists. Since the establishment of the organization in 1956 it has had a strong influence on the public debate and on the politics in fields like public education, and consists of 63 000 members. This makes it, according to the International Human Ethics Association, the biggest national Human-Ethics Association in the world com- pared to the number of inhabitants (4,5 mill. in Norway). 322 I. THORSON PLESNER in general is no longer controversial within the Church of Norway, unlike the employment of priests who openly live in homosexual relationships. Despite the decisions of the Church Synod, some dioceses of the Church of Norway have chosen to employ also practicing gays and lesbian priests during the last years. This issue is quite controversial both within the church and in the public debate about the state church system. Finally, the 1969 School Act must be mentioned in order to give a broad picture of the Norwegian religio-political system. It states that it is amongst the main aims of the public school to help the parents in giv- ing the children a “Christian and Moral Education”, but also to promote tolerance and freedom of thought (article 2). This provision must be interpreted in relation with article 2, 1st paragraph of the Constitution expressing that “inhabitants belonging to the Evangelical-Lutheran faith should raise their children in the same” (which is in practice interpreted to be a moral obligation only for the members of the Evangelical- Lutheran state church). Both these provisions find their roots in a time when the Norwegian society was less pluralistic than it is now, and when most of the pupils belonged to the majority church. With increasing reli- gious plurality and increasing awareness of human rights in general and the right to freedom of religion or belief in particular, these two provi- sions have been highly criticised by different groups. The debate con- cerning the School Act article about “Christian and Moral Education” was in the year 2000 seen in relation with the profile of the new religious education subject in primary school, which was introduced in 1997 as a compulsory subject with a main focus on Christian knowledge, but also aimed at providing information with regard to other religions and life stances. We shall come back to that discussion in part II of this article. The UN Human Rights Committee twice (in connection with Nor- way’s regular reports to the committee in 1994 and 1999) argued that the provision of article 2, first paragraph of the constitution stating that all inhabitants belonging to the Church of Norway should raise their chil- dren in the same faith, is in clear contradiction to article 18 of the UN Convention on Civil and Political Rights which protects the freedom of religion or belief. Also, the Committee underlined the fact that a state church system in itself does not necessarily violate this right, but that such a system makes it very important to be aware of possible discrimination towards religious minorities. This comment is in compliance with the statement of the European Court of Human Rights that has stated (in the Darby vs. Sweden case of 1990) that what really matters is the question whether or not such a system protects the right to freedom of religion STATE AND RELIGION IN NORWAY 323 or belief in practice. The court added that the minimum protection of this right is the right for all members to leave the church whenever they like, without sanctions. The historical foundation of the state church system in Norway lies in this close relationship between the King in person and the rest of the church body, a relationship built upon mutual trust. One could say that the paragraphs demanding that the King and the ministers governing the church affairs belong to the church, give the public government of the Church of Norway some church legitimacy. They also are the legal foundation of some of the power that church bodies, such as the Church synod, are possessing. At the same time, the constitutional paragraphs about the King as the head of the Church both from a legal, theological and political point of view constitute a challenge to the legitimacy of the other church bodies including the Church Synod as “autonomous” eccle- siastical entities of the Church of Norway. Also, the state church system creates tensions with the principles of religious freedom and with equal treatment of persons belonging to different faith communities. One might argue that there is a tension between the right to freedom of religion or belief and the equal access to public positions and participation in pub- lic life on the one hand and the demand for church membership for at least half of the government (art. 12 of the Constitution) on the other hand. Additionnally, the state church system creates limitations to the religious freedom of the King even though this might be a very hypo- thetical question in the present situation. Article 4 of the Constitution makes him the head of the state church and hence requires his confession to the doctrine of this church.
II. TOWARDS A PLURALISTIC SOCIETY In the year 2000 an evaluation of the new and highly debated primary school subject called “Christian Knowledge with Orientation about Religion and Life Stances” was undertaken by two different groups of researchers, at the demand of the Norwegian Research Council. After the introduction of the new subject – giving only a limited right to exemption – in 1997, the Norwegian Parliament had asked for an inde- pendent evaluation of how the limited right to exemption was practiced and whether the possibility of allowing exemptions secures the right of parents to decide upon the religious and moral education and upbring- ing of their children. Both research groups concluded that the right to limited exemption (only from parts of the subject that might be seen as 324 I. THORSON PLESNER
“religious acts” like prayers etc) seemed to be hard to implement at a lot of schools. Several teachers, parents and children expressed that they found the situation difficult, even though some schools reported that they had found good practical solutions responding to the need of some pupils to be exempted from parts of the education. The results of the evaluation made the Ministry of Education take some initiatives to help the schools with the implementation of the rights to exemption. In addi- tion, a revision of the profile and content of the subject was suggested and presented to the Parliament early in 2001. The evaluation reports showed that some minorities had problems with the new subject, especially because of the dominant role of Christianity in the curriculum and textbooks. Some parents belonging to different faith communities – Buddhists, Muslims, Secular Humanists, Jehovah’s Wit- nesses, Jews as well as some Christian minorities – reported that they feared that the subject would make their children confused or stigmatised instead of supporting the development of their own identity. Some of these par- ents – belonging to Muslim communities and the Human – Ethics Asso- ciation – also made a claim for full exemption from the subject, referring to their rights as parents and to the right to freedom of religion or belief, and went to court with their claim. In the year 2000 both groups lost their cases at the lowest level of the Court. The parents of the Human-Ethics Association decided to take their case to the Supreme Court and all the way to the Human Rights Court in Strasbourg if necessary. One of the other highly debated issues in the religio-political discourse of the year 2000 was the question of whether the Muslims should have the right to shout out their call for prayer from the Minaret of a Mosque in central Oslo on a daily or weekly basis. First, the application from the Mosque was rejected because of the breach of public peace that such prayer calls would imply. However, the Ministry of Justice found that there were no reasons for denying the Muslims this right, as long as the calls for prayer were not too loud. The Ministry of Justice referred to the fact that Christian Churches ringing a bell every Sunday included a similar call for worship, and thus the Muslims should be allowed to shout their call for prayer once a week, namely for the Friday afternoon worship. In the year 2000, fifteen Muslim women complained to the Ombud for Gender Equality after having experienced discrimination because they wore a headscarf at work. The Ombud – as well as the Center Against Ethnic Discrimination – supported the women, referring to their right to express their religious identity at work. The groups that had for a long time applied for establishing the first Muslim primary school in Norway STATE AND RELIGION IN NORWAY 325 reached an important milestone in the year 2000. After several years of struggle, the application was finally accepted in 1998, and in the year 2000 the construction of the school started. 175 pupils applied, but the school could only take in 75 for the first school year to begin in 2001. The most controversial question relating to the Muslim communities in 2000 was the practice of female circumcision that some Imams in the Mosques were defending. This practice is prohibited by law since 1995, with a punishment of 3 to 8 years. The discovery of the fact that the leader of the Islamic Council did not clearly disapprove on the practice, forced him to retire from his position. The Norwegian authorities also started an investigation in Muslim communities to reveal any further signs of the practice of female circumcision or the approval of such practice by Muslim leaders. The cases mentioned here clearly illustrate the fact that Norway is no longer a homogenous society. Though a considerable majority of 85% still belongs to the Evangelical-Lutheran state church, the number of reg- istered faith communities as well as the number of people belonging to different religious groups are increasing every year. This creates a chal- lenge for the Norwegian religio-political system as well as for Norwegians of all confessions, demanding a rethinking of both the state/church rela- tionship and the traditional conceptions with regard to common ethical grounds. The national religious dialogue project in Norway in the year 2000, and the appointment of a Church/State Commission which should consider alternative models of church/state relationships and deliver its report in the year 2002, both clearly express that these challenges are taken seriously.