CHURCH AND STATE IN THE CZECH REPUBLIC JIRI RAJMUND TRETERA I. INTRODUCTION The ancestors of the Czech people accepted christianity under the influence of the Irish, Franconian (Bavarian) and Greek-Slavonic mis- sions after the year 800. The territory of the Lands of the Czech Crown have belonged to the Western Church obedience from the beginning without interruptions. The Czech Kingdom (Kingdom of Bohemia) was bound in a free union with the Holy Roman Empire. Charles Uni- versity as the first university in the middle Europe was founded in 1348 in Prague (the capital of Bohemia). There were two beliefs in the King- dom from the Hussite reformation in the 15th century: the Catholic and the Utraquist (Hussite). The recatholization after the Thirty Years War was connected with the Habsburg dynasty. The unification of the Czech lands with the Austrian parts of Habsburg monarchy follows after this date as well. The sovereign of this union appropriated the iura maiestica circa sacra. The Catholic Church lost an essential part of its autonomy in this way. The emperor Josef II published his Letter of Tolerance in 1781. Approximately 2% of the inhabitants of the Czech countries professed the Helvetic or Augsburgian confession. A part of the Catholic Church’s land property, especially the property of monasteries and convents, was secularized. Since 1848 the process of the emancipation of churches from the State had started. In 1867 the new liberal constitution was declared in the Austrian-Hungarian Empire. The system of the secular- ized State based on the principle of cooperation with churches and their parity was grounded by this constitution. The right to be recognized by the State was given to all the churches and religious societies, which ful- filled legal demands. The new recognized churches could join in teach- ing religion at public schools and practising religious services in the army. The salaries of priests, pastors and rabbins were financed partially by their churches and religious societies, partially by the State in the case 300 J. R. TRETERA of the churches or religious societies that were unable to finance their clergy on their own. The recognized churches and religious societies were supported by the State according to the number of their members. The Republic of Czechoslovakia, founded in 1918 after the separa- tion from the Austrian-Hungarian Empire, adopted and recognized the older legislation of the Habsburg monarchy. The children who belonged to churches were obliged to attend a religious education at public schools. The Constitution from 1920 declared the individual freedom of religion. As far as the public opinion is concerned the Catholic Church was accused of having too near relations to the Habsburg dynasty and the dissolved Austrian-Hungarian Empire. Approximatively 20% of the Czech people voluntarily gave up their membership of the Catholic Church, approximately one half of them became nondenomi- national and almost the same number of these people founded the new “Czechoslovak Church”1 in January, 1920 1,1% of all citizens became Protestants2, 0,2% East-Orthodox. But 75% of the Czech people stayed in the Catholic Church. The Modus Vivendi was concluded between the representatives of the Czechoslovak government and the Holy See in 1927/1928. The Holy See accepted the demand to ask the government of the Republic about possible political objections before the installation of dioecesan bishops. During the Nazi occupation 1939-1945 the Catholics in the Czech lands actively participated in the resistance against the Nazis, and being persecuted by them, they were justified in the minds of the Czech peo- ple. All churches became popular in the Czech society after World War II. Religious freedom was the same like before 1939, although the Com- munist party was very powerful and tried to increase its own power. A radical change came after the communist coup d’état in February 1948. All the spheres of public life had to accept the “scientific”, i.e. the Marxist ideology. Atheism was a part of this ideology. The Marxist ide- ology played the role of a State religion in the years 1948-1989. 1 The Czechoslovak Church developed from the Catholic modernism. It unites the Catholic and Protestant aspects of worship and teaching with the Hussite tradition. This Church was recognised by the State in September 1920, but not as a State religion. It has used the name The Czechoslovak Hussite Church since 1971. 2 The Protestant Church of Augsburgian confession and the Protestant Church of Helvetic confession united themselves into the Protestant Church of Czech Brethren in December, 1918. The portion of Protestants rose to 4% of the Czech nation. CHURCH AND STATE IN THE CZECH REPUBLIC 301 Churches and religious societies became the only alternatively think- ing institutions whose existence was, with many limits, tolerated3. The last aim of the regime was, of course, the entire liquidation of churches and religious societies. All the land property of churches (woods and fields), an important source of their economic assurance, was taken over by the State in 1948. All Church schools and seminars were abolished. The education of clergy was provided only at three State theological faculties (one for the Catholics, one for the Protestants, one for the Czechoslovak Church) and with number limits of admission. The new act establishing the institutions of a State control over churches came into force on November 1st, 1949. The next act from this year brought obligatory but very low salaries for clergy, paid by the State regardless of the will of churches. This act also bound any religious activity of clergy or lay preachers on the State permission for a geo- graphically limited territory. The State permission could be taken back without explanation. The Penal Codes from 1950 and 1961 allowed a punishment of imprisonment for the breaking of this act. In April 1950 all the monasteries were dissolved and the religious were interned at centralization camps without any legal ground. Later they were ordered to forced labour troups. From August 1950 convents of sisters were relocated to the border-land, nuns could not admit novices and they were obliged to work in factories. The obligatory civil marriage was established in 1950 (firstly in the his- tory of the Czech lands). The religious education at schools was permitted as a voluntary subject, but there was an effort to get it out of the school and the children attending this education were discriminated against. The communist regime in Czechoslovakia did not call the relation between State and Church as a separation. The legal subjectivity of indi- vidual ecclesiastical legal entities and their ownership of the remaining Church property (churches, parsonages, gardens) was recognized. The lay employees of churches, for example vergers, were usually paid by the money collected during the Church services. All the churches, and especially the Catholic Church, became the symbols of resistance during the communist regime. They got the authority among all disidents. 3 The communists took this attitude towards churches because religiosity is deeply established in souls of people and because the total pushing of Church activites in ille- gality would be “dangerous” for their regime because of loss of control. 302 J. R. TRETERA On 17th of November, 1989, the 50th anniversary of the close-down of the Czech universities by the Nazis, the communist police brutally interfered in a students’ commemorative procession in Prague. The events later called “the velvet revolution” followed in entire Czechoslo- vakia. The 10th of December, 1989 may be called as the day of an upheaval. On this day the last communist president appointed a non- communist government. The following day he resigned. The govern- ment decided for the policy of legal continuity and of value discontinu- ity between the new and the old regime. The first task of the Parliament was the abrogation of the enactments which were contrary to human rights and the gradual change of legislation for the restoration of a democratic society in Czechoslovakia. The anti-ecclesiastical enactments of the Penal Code No. 140/1961 Sb4. (§101 -the abuse of a religious office, §178- the infringment of the State supervision of churches and religious societies, §211 – the viola- tion of the Family Act) were abrogated by the Act No. 159/1989 Sb. from the 13th of December, 1989. Further, the decision was made to cancel any State interference in the appointment of churches’ employees. There was a modest State interference, grounded on the Modus Vivendi from the years 1927/1928, before the communist coup d’état. The communist regime cancelled the diplomatic relations with the Holy See in the spring of the year 1950 and did not apply its rights following from the Modus Vivendi. Instead of this the regime established a strong system of State supervision of churches. The possibility to carry out activities of a clergyman depended on the State approval under §7 of the Act No. 218/1949 Sb. The delegates of the federal government of Czechoslovakia assured themselves during the negotiations with the Holy See at the beginning of January, 1990 that the Modus vivendi, which was not applied since the coup d’état on January, 1948, is considered by the Holy See as obso- lete and void on the ground of the principle of international law accord- ing to which a contract is null and void if an essential change of condi- tions happens (clausula rebus sic stantibus). The following Act No. 16/1990 Sb. from the 23rd of January, 1990 abrogated §7 of the Act No. 218/1949 Sb. Since this time the State has 4 Sb. = Sbírka zákonu (the official Journal of Law of the Czech Republic or the for- mer Czechoslovak Republic).