Kokkinakis and the Narratives of Proper and Improper Proselytizing

Chapter 7 Kokkinakis and the Narratives of Proper and Improper Proselytizing

Brett G. Scharffs

1 Introduction1

One of the central moves by the European Court of Human Rights (Court or ECtHR) in Kokkinakis v. Greece is the distinction between proper and improper proselytizing, a distinction that has bedevilled the freedom of religion and belief jurisprudence of the Court over the subsequent twenty-five years. This is remarkable because the distinction did not exist in the Greek statute pro- hibiting “proselytism” or the underlying Greek Constitutional prohibition of proselytism. The distinction between proper and improper proselytizing has been important not only in subsequent cases directly involving missionary ac- tivities, but also in cases involving potent religious symbols such as the Islamic headscarf and Christian crucifix. This chapter will focus on the influence of this hermeneutic move in two primary ways. First, the distinction encourages the development of what I will call the competing “Proper Proselyting Narrative” and the “Improper Prosely- tism Counter-narrative.”2 The Proper Proselyting Narrative sees missionary activity as a normal and even central element of freedom of thought, conscience, and religion, closely related to the core Article 9 right to change one’s religion or belief. The Improper Proselytism Counter-Narrative sees missionary activity as a dark and dangerous intrusion upon the religious freedom of adherents of other religions, as often coercive, and a looming violation of the (imagined?) right to be left alone.3 These two narratives assert themselves as competing

1 Thanks to Jessica Farnsworth for research assistance. Thanks also to Jeremy Gunn, Jeroen Temperman and Malcolm Evans for spearheading this project. 2 See infra, Section 3. 3 In the Universal Declaration of Human Rights debates, the Greek delegate expressed his con- cern about proselytizing practices he observed in other countries: ‘Free lodgings, material assistance and a number of other advantages were offered to persons who agreed to belong to one religion or another … [The] danger of such unfair practices was a threat, not only to the minority groups of a given country … but also to the religious majority. While, admittedly,

156 Scharffs versions of what actually happened in the case – two alternative sets of facts.4 Second, these competing narratives also provide the background framework for subsequent cases involving not only direct efforts at proselytizing, but also cases involving religious symbols that are either said to have, or not have, proselytizing potentials or effects.5

2 Setting the Stage

Article 3 of the 1975 Greek Constitution provides, ‘[t]he dominant religion in Greece is that of the Christian Eastern Orthodox Church.’6 Article 13 states that, ‘[f]reedom of conscience in religious matters is inviolable,’ and guaran- tees the ‘freedom to practise any known religion,’ and that the ‘ministers of all known religions shall be subject to the same supervision by the State and to

every person should be free to accept or reject the religious propaganda to which he was subjected, [he] felt that an end should be put to such unfair competition in the sphere of religion.’ u.n. gaor, 3rd. Sess., 127th mtg. u.n. Doc. A/C.3/SR, 127, at 393–394 (Statement of Ambassador Alexander Contoumas, Representative of Greece). 4 For years post-modernists have been telling us there is no such thing as “fact”, but in our “post-truth” political moment, the importance of shared understandings of what actually happened when talking about an event that has occurred in the past is widely acknowledged. Post-modernists like Jacques Lacan, Michel Foucault and Derrida say, ‘Ideas like those of “reason” and “truth” are the fictions of the Enlightenment. Ideas about humans and society which we assume to be permanent truths change over time.’ Terry Eagleton, The Illusions of Postmodernism (Oxford: Blackwell, 1996), at p. 135. After the White House press secretary accused the news media of reporting falsehoods about the Trump and Obama inauguration crowds and their relative size, Kellyanne Conway, a counsellor to President Trump said on nbc’s ‘Meet the Press’ that ‘the White House had put forth “alternative facts” to ones reported by the news media.’ Nicholas Fandos, ‘White House Pushes “Alternative Facts.” Here Are the Real Ones,’ The New York Times, 22 January 2017, p. A15. 5 See infra, Section 4. 6 Greek Constitution of 1975, Article 3, cited in Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, para. 13. The paramount place of the Greek Orthodox Church under the Greek Constitution is evident throughout Paragraph 3 of the Constitu- tion. Paragraph 1 of Article 3 continues, ‘[t]he Greek Orthodox Church, which recognizes as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions…’. Paragraph 2 provides, ‘[t]he ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.’ Para- graph 3 provides, ‘the text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the Autocephalous Greek Church and the Great Christian Church at Constantinople.’