2013-01-16 L’Osservatore Romano
Your Excellency, on 15 January the European Court of Human Rights published its judgments on four cases relating to the freedom of conscience and religion of employees in the United Kingdom. Two of these cases concern employees’ freedom to wear a small cross around their neck in the workplace, while the other two concern the freedom to object in conscience to the celebration of a civil union between persons of the same sex and to conjugal counselling for couples of the same sex. Only in one case the Court held in favor of the applicant.
These cases show that questions relating to freedom of conscience and religion are complex, in particular in European society marked by the increase of religious diversity and the corresponding hardening of secularism. There is a real risk that moral relativism, which imposes itself as a new social norm, will come to undermine the foundations of individual freedom of conscience and religion. The Church seeks to defend individual freedoms of conscience and religion in all circumstances, even in the face of the “dictatorship of relativism”. To this end, the rationality of the human conscience in general and of the moral action of Christians in particular requires explanation. Regarding morally controversial subjects, such as abortion or homosexuality, freedom of consciences must be respected. Rather than being an obstacle to the establishment of a tolerant society in its pluralism, respect for freedom of conscience and religion is a condition for it. Addressing the Diplomatic Corps accredited to the Holy See last week Pope Benedict XVI stressed that: “In order effectively to safeguard the exercise of religious liberty it is essential to respect the right of conscientious objection. This “frontier” of liberty touches upon principles of great importance of an ethical and religious character, rooted in the very dignity of the human person. They are, as it were, the “bearing walls” of any society that wishes to be truly free and democratic. Thus, outlawing individual and institutional conscientious objection in the name of liberty and pluralism paradoxically opens by contrast the door to intolerance and forced uniformity.”
The erosion of freedom of conscience also witnesses to a form of pessimism with regard to the capacity of the human conscience to recognize the good and the true, to the advantage of positive law alone, which tends to monopolize the determination of morality. It is also the Church’s role to remind people that every person, no matter what his beliefs, has, by means of his conscience, the natural capacity to distinguish good from evil and that he should act accordingly. Therein lies the source of his true freedom.
Some time ago the Holy See’s Mission to the Council of Europe published a Note on the Church’s freedom and institutional autonomy. Could you explain the context of the Note?
The issue of the Church’s freedom in her relations with civil authorities is at present being examined by the European Court of Human Rights in two cases involving the Orthodox Church of Romania and the Catholic Church. These are the Sindacatul “Pastorul cel Bun” versus Romania and Fernandez Martinez versus Spain cases. On this occasion the Permanent Representation of the Holy See to the Council of Europe drew up a synthetic note explaining the magisterium (official Church teaching) on the freedom and institutional autonomy of the Catholic Church.
What is at stake in these cases?
In these cases, the European Court must decide whether the civil power respected the European Convention on Human Rights in refusing to recognize a trade union of priests (in the Romanian case) and in refusing to appoint a teacher of religion who publicly professes positions contrary to the teaching of the Church (in the Spanish case). In both cases, the rights to freedom of association and freedom of expression were invoked in order to constrain religious communities to act in a manner contrary to their canonical status and the Magisterium. Thus, these cases call into question the Church’s freedom to function according to her own rules and not to be subject to civil rules other than those necessary to ensure that the common good and just public order are respected. The Church has always had to defend herself in order to preserve her autonomy with regard to the civil power and ideologies. Today, an important issue in Western countries is to determine how the dominant culture, strongly marked by materialist individualism and relativism, can understand and respect the nature of the Church, which is a community founded on faith and reason.
How does the Church understand this situation?
The Church is aware of the difficulty of determining the relations between the civil authorities and the different religious communities in a pluralist society with regard to the requirements of social cohesion and the common good. In this context, the Holy See draws attention to the necessity of maintaining religious freedom in its collective and social dimension.
This dimension corresponds to the essentially social nature both of the person and of the religious fact in general. The Church does not ask that religious communities be lawless zones but that they be recognized as spaces for freedom, by virtue of the right to religious freedom, while respecting just public order. This teaching is not reserved to the Catholic Church; the criteria derived from it are founded in justice and are therefore of general application.
Furthermore, the juridical principle of the institutional autonomy of religious communities is widely recognized by States which respect religious freedom, as well as by international law.
The European Court of Human Rights itself has regularly stated this principle in several important judgments. Other institutions have also affirmed this principle. This is notably the case with the OSCE (Organization for Security and Cooperation in Europe) and also with the United Nations Committee for Human Rights in, respectively, the Final Document of the Vienna Conference of 19 January 1989 and General Observation No. 22 on the Right to Freedom of Thought, Conscience and Religion of 30 July 1993. It is nevertheless useful to recall and defend this principle of the autonomy of the Church and the civil power.
How is this Note set out?
The Church’s freedom will be better respected if it is, first of all, well understood, without prejudice, by the civil authorities. It is therefore necessary to explain how the Church’s freedom is envisaged. To this end, the Permanent Representation of the Holy See to the Council of Europe drew up a synthetic Note (which is here attached) explaining the Church’s position on the basis of four principles: (1) the distinction between the Church and the political community; (2) freedom in relation to the State; (3) freedom within the Church; (4) respect for just public order.
Following the explanation of these principles, the Note also presents the more pertinent extracts from the Declaration on Religious Freedom Dignitatis Humanae and the Pastoral Constitution Gaudium et Spes of the Second Vatican Council.
Freedom and the institutional autonomy of the Church
Below we are publishing the English text of the Note on the Catholic Church's freedom and institutional autonomy presented by Holy See's Permanent Representation to the Council of Europe concerning the cases: Sindicatul “Pastorul cel Bun” versus Romania n° (2330/09) and Fernández-Martínez versus Spain (n° 56030/07) being examined by the European Court of Human Rights.
The teaching of the Catholic Church regarding the aspects of religious freedom touched on by the two above-mentioned cases may be presented synthetically as based on the following four principles: 1) the distinction between the Church and the political community; 2) freedom in relation to the State; 3) freedom within the Church; 3) respect for just public order.
(1). The distinction between the Church and the political community
The Church recognizes the distinction between the Church and the political community, each of which has distinct ends; the Church is in no way confused with the political community and is not bound to any political system. The political community must see to the common good and ensure that citizens can lead a “calm and peaceful life” in this world. The Church recognizes that it is in the political community that the most complete realization of the common good is to be found (cf. Catechism of the Catholic Church, n. 1910); this is to be understood as “the sum total of social conditions which allow people, either as groups or individuals, to reach their fulfilment more fully and more easily” (ibid., n. 1906). It is the State’s task to defend it and ensure the cohesion, unity and organization of society in order that the common good may be realized with the contribution of all citizens and that the material, cultural, moral and spiritual goods necessary for a truly human existence may be made accessible to everyone. The Church, for her part, was founded in order to lead the faithful to their eternal end by means of her teaching, sacraments, prayer and laws.
This distinction is based on the words of the Lord Jesus (Christ): “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mt 22:21). In their own areas, the political community and the Church are independent of each other and autonomous. When it is a question of areas which have both temporal and spiritual ends, such as marriage or the education of children, the Church is of the view that the civil power should exercise its authority while making sure not to damage the spiritual good of the faithful. The Church and the political community, however, cannot ignore one another; from different points of view they are at the service of the same people. They exercise this service all the more effectively for the good of all the more they strive for healthy mutual cooperation, as the Second Vatican Council expressed it (cf. Gaudium et spes, n. 76).
The distinction between the Church and the political community is ensured by respecting their reciprocal autonomy, which conditions their mutual freedom. The limits of this freedom are, for the State, to refrain from adopting measures which could do harm to the eternal salvation of the faithful, and, for the Church, to respect the public order of the State.
(2). Freedom with respect to the State
The Church claims no privilege but asks that her freedom to carry out her mission in a pluralist society be fully respected and protected. The Church received this mission and this freedom from Jesus Christ, not from the State. The civil power should thus respect and protect the freedom and autonomy of the Church and in no way prevent her from fully carrying out her mission, which consists in leading the faithful, by her teaching, sacraments, prayers and laws, to their eternal end.
The Church’s freedom should be recognized by the civil power with regard to all that concerns her mission, whether it is a matter of the institutional organization of the Church (choice and formation of her co-workers and of the clergy, choice of bishops, internal communication between the Holy See, the bishops and faithful, the founding and governing of institutes of religious life, the publication and distribution of written texts, the possession and administration of temporal goods …), or the fulfilment of her mission towards the faithful (especially by the exercise of her Magisterium, the celebration of public worship, the administration of the sacraments and pastoral care).
The Catholic religion exists in and through the Church, which is the mystical body of Christ. When considering the Church’s freedom, primary attention should therefore be given to her collective dimension: the Church is autonomous in her institutional functioning, juridical order and internal administration. With due respect for the imperatives of a just public order, this autonomy should be respected by the civil authorities; this is a condition of religious freedom and the distinction between Church and State. The civil authorities cannot, without committing an abuse of power, interfere in the purely religious domain, for example, by seeking to change the bishop’s decision regarding appointment to a function.
(3). Freedom within the Church
The Church is not unaware that certain religions and ideologies can oppress the freedom of their adherents; however, for her part, the Church recognizes the fundamental value of human freedom. The Church sees in every human person a creature endowed with intelligence and free will. The Church sees herself as a space for freedom and prescribes norms intended to guarantee that this freedom is respected. Thus, all religious acts, for validity, require the freedom of the one carrying them out, that is, the engagement of their will. Taken together and apart from their individual significance, these freely accomplished acts aim at giving access to the “freedom of the children of God”. Mutual relations within the Church (such as marriage and religious vows made before God) are governed by this freedom.
This freedom has a relation of dependence on the truth (“the truth will make you free”, Jn 8:32): consequently it cannot be invoked to justify an attack on the truth. Thus, a member of the lay faithful or a religious cannot, with regard to the Church, invoke freedom to contest the faith (for example, by adopting public positions against the Magisterium) or to damage the Church (for example, by creating a civil trade union of priests against the will of the Church). It is true that every person is free to contest the Magisterium or the prescriptions and norms of the Church.
In case of disagreement, everyone may exercise the recourses provided by canon law and even break off his relations with the Church. Since relations within the Church are, however, essentially spiritual in nature, it is not the State’s role to enter into this area to settle disputes.
(4). Respect for just public order
The Church does not ask that religious communities be “lawless” areas, where the laws of the State would cease to apply. The Church recognizes the legitimate competence of civil authorities and jurisdictions to assure the maintenance of public order. This public order should conform to justice. Thus, the State should ensure that religious communities respect morality and just public order. In particular, it should see to it that persons are not subject to inhuman or degrading treatment, that their physical and moral integrity is respected, including the possibility of freely leaving their religious community. This is where the autonomy of the different religious communities is limited, allowing both individual and collective and institutional religious freedom to be guaranteed, while respecting the common good and the cohesion of pluralist societies. Apart from these cases, civil authorities should respect the autonomy of religious communities, by virtue of which these should be free to function and organize themselves according to their own rules.
In this regard, it should be borne in mind that the Catholic faith completely respects reason. Christians recognize the distinction between reason and religion, between the natural and supernatural orders, and believe that “grace does not destroy nature”, that is to say, that faith and the other gifts of God never render human nature and the use of human reason useless, not ignore them, but rather promote and encourage them. Christianity, unlike other religions, does not involve formal religious prescriptions (regarding food, vesture, mutilation, etc.) which, were the case to arise, could offend against natural morality and enter into conflict with the law of a religiously neutral State. In any case, Christ taught us to go beyond such purely formal religious prescriptions and replaced them by the living law of charity, a law which, in the natural order, recognizes that conscience has the task of distinguishing between good and evil. Thus, the Catholic Church could not impose any prescription contrary to the just requirements of public order.