Legal framework

Written by Niels Vinding Valdemar and Lisbet Christoffersen (University of Copenhagen) as a contribution to the Religare project, the report Danish Regulation of Religion, State of Affairs and Qualitative Reflections exposes the state of religion in Denmark, especially in four areas: religion and family, religion and the labour market, religion and public space and State support for religions.

D 10 September 2012   

Denmark has a history of regulating religion that on the one hand represents a certain understanding of Lutheranism in a majority context after the religion wars (cujus regio, ejus religio), and on the other hand presents some strenuous and difficult compromises in Danish realpolitik. Since the constitution of 1849, Danish regulation of religion based the Evangelical Lutheran Church firmly as one of four pillars of Danish society (§ 4) coupled with a dual constitutional promise of autonomy and establishment. A law was promised that would establish the Folkekirken as an self-determining and autonomous institution independent of, but supported by the State (sections 66 and 4), and likewise a law were to be made to regulate on equal terms the frame of the affairs of other religious communities in promise of similar freedoms and responsibilities as the Folkekirken (section 69).

The constitution gave a legal framework for explicit recognition by royal decree of those few religious communities that where already a political reality in 1849. Among these is the Jewish community, which was recognized already in 1685. This system of administrative recognition was prolonged also after the constitution, including a list of Christian main stream churches, such as Catholic Church, the Orthodox Russian congregation in Copenhagen, the Norwegian, the Swedish and the English Churches, the reformed churches, the Baptists, the Methodists and the Jewish Community in Denmark. The system of recognition was changed just after Second World War so that religious communities arrived after 1960 have only been approved, including Islam, Buddhism, and others, leaving them relegated to the administrative competences of the ministers and permanent secretaries of changing ministerial departments and offices.

See also: VINDING Niels Valdemar, "State and Church in Denmark", in ROBBERS Gerhard (ed.), State and Church in the European Union, Third ed., Baden-Baden, Nomos, 2019, p. 87-108.

D 13 September 2012    ANiels Valdemar Vinding

Religion in Denmark is, legally speaking, embedded in two different regulatory regimes. The Evangelical-Lutheran Church is regulated as a public, administrative body, that is: within public law; whereas all other religious communities are regulated under private law as associations, charities or private institutions. From a legal, organizational and administrative point of view, there is thus no qualitative difference between the Folkekirke and any other public administrative body. But the other religious communities are regulated just as any other private association with no clear distinction based on the very idea that the organisation is religious.

This regulatory approach can be said to be pragmatic with a conclusion derived from a legal fact. As such, the governing approach to regulation of religion is very much in line with the jurisprudence of legal realism, which in the framing of Danish professor of law Alf Ross (1899-1979) was the prevalent jurisprudence in the second half of the 20th century (Ross 1946, 1957). The legal realism we see in Denmark is part of a boarder trend called the Uppsala school of legal thinking, which was inspired by Swedish philosopher Axel Hägerström (1868 – 1939). He, and thus in turn legal realism, was grounded in reason and a positivist approach to legislation, which places law as necessary a condition for organized social life. Legal realism is marked by the pragmatic conclusions to be drawn from legal positivism and it denies that there is any valid law that is not positively established, such as natural law or religious informal law.

It is within this understanding that Denmark claims to be secular. Secularism is not a matter of public policy or a product of deliberate legislation. The legal and political pragmatism that claims this secularism considers itself realism, maintains that there is in legislation and in administration no consideration for the legal conclusions to be drawn from religion. Secularism is pragmatic and therefore understood as realistic, but it is difficult to see where secularism historically and structurally embedded in Denmark.

While the constitution added distinction, it stopped just short of actual separation. The first four articles of the constitution can be said to demarcate the jurisdiction or, figuratively speaking, erect the pillars on which the modern state was build. The first articulates the geographical territory of Denmark, the second establishes the monarchy, the third enacts the division of powers and the principles of justice, and the fourth establishes the Church of Denmark. This means that although the Church of Denmark and minority religious affairs were to be regulated autonomously, they were to be so within the organizational frame of the constitution. In this sense, the Church – in parallel analogy to the Monarchy and the institutions of power – were both constituent to and subjects of the rule of law and Democracy, as defined in the rest of the constitutional body.

To the extent that Denmark can be said to be secular, it is so in the logic of legal realism, and the Danish paradigm of regulating religion exposes itself to the same criticisms that legal realism did. This includes the notions of non-voluntarism, scepticism and the insistence on laws that must be based on social fact and regulate social behaviour. However, exactly based in social realities, the normative power of religious morals seems to be resurgent.

VINDING, N. V., "State of Affairs of Danish Regulation of Religion," in VINDING & CHRISTOFFERSEN, Danish Regulation of Religion: State of Affairs & Qualitative Reflections, RELIGARE. 2012.

D 13 September 2012    ANiels Valdemar Vinding

As section 66 of the current constitution governs the legal status of the Evangelical Lutheran Church of Denmark, section 69 governs in a similar phrase the legal status of, literally, ’the from the Evangelical Lutheran Church deviant religious communities’’ that is the other religious communities in Denmark. As freedom of religion is guaranteed in the constitution, sections 67, 68 and 70, everyone is free to think, believe and worship as they please. There are, however, certain measures regarding religious communities that the constitution delegates to the decisions of parliament. In history, the affairs of other religious communities were decided by the ministry for ecclesiastical affairs who usually consulted the bishop of Copenhagen, but in 1998 this was changed, and now the Advisory Council regarding Religious Communities are consulted. This is an authority that on substantial grounds ’approves’ religious organizations’ and groups’ right to perform marriages, to invite religious professionals, and to have certain tax deductibility. The advisory council is no longer part of the ministry for ecclesiastical affairs, but is part of the Division of Family Affairs at the National Social Appeals Board.

In order to be approved as a religious community, the applicant group or organization needs to be part of a religion in a wide definition of such, there needs to be a substantial amount of members, there must be ministers or religious personnel to guarantee institutional stability, and there needs to be some creed or doctrine, also to make sure that the institution is durable, but also to make sure that it is public. In the past fifteen years, more than 99 religious communities and organizations have been approved.

In order to be approved for performing marriages, the minister or religious professional is to be checked by the police and the group needs to be recognized. That’s because the performance of marriage is a public act delegated by the authorities. Some gain a standing approval, and some an ad hoc approval on a case by case basis.

The marriage itself needs to be consensual, the parties cannot be married to others, there needs to be two witnesses, and they must declare a ’Yes’ when asked by the one performing the marriage. According to international private law some marriages will be recognized from abroad, but when a Danish employed interpreter in Iraq was persecuted for helping the Danish army, he was allowed to bring his two wives to Denmark.

VINDING, N. V., "Religious Communities Deviant from the Established Church" in IVERSEN, et al, The Future Danish Model of Religion. Reitzels Publisher, Forthcoming, 2012.

GEERTZ, A. W. and Mikael ROTHSTEIN, M., "Religious Minorities and New Religious Movements in Denmark", Nova Religio: The Journal of Alternative and Emergent Religions, Vol. 4, No. 2 (April 2001).

KÜHLE, L., "Recognition of Religious Communities as Symbolic Capital", paper presented to NCSR in Uppsala/Sigtuna, August 22nd to 25th, 2002.

D 13 September 2012    ANiels Valdemar Vinding