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The dynamic of the formation of a legal position of religious communities and related administrative practices

A recent legal change

One of the crucial facts in understanding the legal position of Slovene religious communities is late legislative transition. Slovenes have entered a new democratic state with a new contemporary Constitution (1991), however, the old Yugoslavian Act on Legal position of Religious Communities (1976) has only been, with some amendments replaced with the Religious Freedom Act (2007) after 16 years of democracy. It is true that the legal position of religious communities has been evolving to some degree due to changes in other legislation, but defining the legal position of the dominant Catholic Church has clearly been favoured over the systematic approach to the field of religious freedom during this period. The obsolete socialist act, stating that religious communities, their representatives and their members should not enjoy preferences, privileges or special protection, has not prevented the State to conclude agreements with the Catholic and Lutheran churches on religious spiritual care in the Slovene Army (2000) and to ratify the Agreement with the Holy See on the legal position of the Catholic Church (2004). The same obsolete act states that every religious community must report its activities to the relevant state body and form a legal person of private law on pain of penalties. This has been an instrument of control of religious communities during the socialist period; the new State has, however, never searched for unreported communities. Evidence suggests that even religious communities have been passing this obligation under the new state and reporting their activities optionally and out of their free will, but at the same time the administrative definition of a religious community, criteria and procedure for forming this legal entity were entirely missing.

Two Opposite Viewpoints on Relations between State and Religions: inclusivists and exclusivists

Lack of a systematic approach to religious freedom in this period (1991-2007) has formed and strengthens two concurrent standpoints on every problem and solution. Every key event in the redefinition of relations between the state and religious communities has been seen either as a cause or an effect of the confrontation of these standpoints. In absence of a better choice, advocates of these positions are named inclusivists and exclusivists (see Lesjak and Lekić, 2013). In composing rules, inclusivist prefers a principle of analogy with the rest of the society; exclusivist would, on the contrary, focus on distinctions and introduce special rules for the religious field alone; in dealing with religious communities inclusivist would stress their common features (for example eligibility for protection of religious freedom), exclusivist would primarily provide for differences among them and distinctive qualities of each one to ensure special privileges to some. Inclusivist understands the State as a service to its citizens; exclusivist would rather define it as a guardian of the holy.

An Agreement with the Holy See Satisfies both Sides

This duality has been evident from the start. The Catholic Church has entered in dialogue with the State (1993) with a full list of propositions and an explicit request for concluding agreements with the Holy See. While expressing its will to settle the so-called outstanding issues of the Catholic Church, the government has agreed to this request only in the second round of dialogue (started in 1997), but after excluding topics which were deemed unclear (for example propositions on state financing of the Catholic Church) or exceed the limits of the Constitution (for example intended legal effects of church marriages and religious teachings in public schools). The agreement, which has finally included provisions which are not problematic from the standpoint of Slovene legal order, was signed in 2001 and ratified in 2004, after having been submitted to the Constitutional Court for review. It seems that the best description of this outcome is a compromise between exclusivists and inclusivists. The Catholic Church has got an international agreement at last, though its content is far from its expectations, but from the other side this special arrangement provides only for rights equally available to all other religious communities (apart from the very existence of the agreement itself).

Other Religious Agreements

Other events demonstrate the coexistence of diametrically opposed solutions. The government has concluded agreements on religious spiritual care in the Slovene army with the Catholic and Lutheran churches in 2000. Agreements establish the Military Vicariate in the Slovene Army. This institution is led by a religious employee of the Catholic Church and his deputy from the Lutheran Church, and aims at spiritual care of professional soldiers of Catholic and Lutheran confessions. Its competences are unusually wide (even without considering the scope of the notion of religious freedom), since it is also responsible for the spiritual care of soldiers of all other confessions as well as civil personnel of the Ministry of Defence (as the only state institution which is offering such a care to its employees). While this arrangement is closer to systems which recognise a state church, the Constitutional Court has almost simultaneously (2001) stressed the importance of negative religious freedom in protection of autonomy of school premises, confirming that confessional activity in public kindergartens and schools is not allowed (see CC: U-I-68/98).

Adoption of the Religious Freedom Act

One of the standpoints, being inclusivism or exclusivism, may temporarily prevail. The passing of the Religious Freedom Act (2007, RFA) was not the result of a relative consensus finally obtained, it was instead the consequence of a major parliamentary battle. The State entrusted the wording of the act to a private law institute; its own public servants and field specialist have not been even consulted. A long-lasting parliamentary procedure had strongly polarised members of the National Assembly. An alternative act, prepared by opponents of the RFA, has been overruled twice; around 80 amendments to the RFA, submitted by its opponents, have been dismissed during the procedure. The final voting, preceded by the suspensive veto of the upper chamber of the parliament, has been successful at last only because of the favorable votes of two representatives of national minorities. Immediately after being adopted, the RFA has been sent to the Constitutional Court for a review. Thus, the Slovene legislative transition in the field of religious freedom has been completed. The RFA has granted many needed provisions, for example of religious freedom, procedure of registration of religious communities and some other administrative practices, which previously has not been defined by the law.

The present situation; an exclusive view of the status of religions

The RFA has also made evident that the exclusivism has prevailed. The legal status of religious communities is clearly defined in differences from the rest of society and in stratification among them. One of the consequences has been that the institution of a registered religious community ceased to be easily available. According to the RFA, a religious community must gather at least 100 founding members and demonstrate at least 10 years of previous existence. Compared with the previous absence of criteria for founding a religious community during the 16 years of the transitional period (and the additional 46 years of existence of the former Socialist Federative Republic of Yugoslavia), this is a remarkable change. In a similar way, for example, the RFA has introduced the criteria of “a reasonable proportion” of 1 religious employee to 1000 members for claiming state support for the social security costs of religious employees, although the same state support had been available to registered religious communities without any criteria (and without any misuse) since 1991. Because it is not possible to formulate the idea of human rights through exclusivism only, the balancing of the RFA has been expected. And indeed, the Constitutional Court (2010) has dismissed demanding registration criteria, disallowed employment of religious specialists in prisons and hospitals and offered very extensive reasoning on RFA (see CC, U-I-92/07). The National Assembly has finally approved amendments to RFA (2013) which render possible the founding of a religious community by 10 adult persons.

Religious change: the New Religious Movements in Slovenia

Contrary to some expectations (for example Hervieu-Léger, 2000), new religious and spiritual movements (NRMs) have not remodelled European societies nor our understanding of religion. Despite their exciting diversity and innovations, exaggerated and quite often twisted attention of surrounding society, they have remained marginal in wider perspective; they hardly exceed 1 percent of any population today. However, they have also sharpened our attention to religious minorities and to our stereotypes. In such a way, they have influenced legal position of religious communities in some cases. One of them is the procedure of registration of religious communities in Slovenia. It seems interesting that Slovenia has been one of the few countries in the world without hostile reception of the first wave of NRMs. Imported popular constructs of brainwashing in cults and mental manipulation have hardly appeared; the general attitude towards NRMs has been indifference as a rule, sometimes even friendly (see Lesjak, 2001). This positive reception is usually explained by the similarities in the situation of members of NRMs and Slovenian residents: both are small in number, different form others and sometimes unconventional. Such proximity would explain the Slovenian higher tolerance for NRMs.. The first NRMs (for example the Society for Krishna Consciousness, the Unification Church, and the Church of Scientology) obtained the status of religious community without any problem and almost unnoticed by the public. Competent civil servants were not able to question their eligibility for this status, because religious communities were obliged to report their activities to the State and there were no criteria for granting or declining such a status. In a very inclusive manner, civil servants were simply using analogies and consulting contemporary sociology of religion. Tendencies towards limitations of access to the status of a religious community have emerged only later, with rise of the exclusivist view. These tendencies were either formal or content oriented. The former has been (as described above) dismissed by the Constitutional Court, because a right to specially designed legal person is included in the very essence of the notion of religious freedom as a human right and should, thus, remain widely available. The latter concerns the question of what religion is, or whether the State should decide for its citizens how and what they should believe.

A very libertarian regime of administrative registration of religious communities

According to the RFA, being a religion is a presumption. It sounds reasonable that groups which apply for the status of religious community are religious groups (and not groups of other kinds). A test of religiousness is not, however, foreseen in the process of registration, though it is possible to lean on expert opinions in every stage of this process (see RFA, Article 17). This provision has become crucial in forming administrative practice concerning the registration of religious communities. Allowance of expert opinions in case of subjective doubts of uninformed civil servants has connected this administrative procedure with the highest form of expertise, which is science. But as we know, the definition of religion is a highly disputed topic in the sociology of religion and one of its most frequently debated areas. There is no single or prevalent definition. Even definitions of religion may be distributed among inclusive (for example, functional) and exclusive ones (for example, substantial) and science may thus, depending on a choice of definitions, produce contradictory appreciations from the standpoint of administrative practice. To administratively consider as a religion group, which may classify itself under the category of invented religions (Cusack, 2010), to take an extreme example, would certainly not be done if the expert’s position were substantial, and would most probably be quite different if the expert were a specialist for NRMs with inclination to polythetic definitions, based on Wittgenstein’s principle of family resemblance. Judgements on religion should therefore be avoided, if possible, especially when we realise that expert opinions may enable the State to influence a decision, being familiar with expert’s profile in advance for example (what has already happened, when the State has commissioned expert opinions on new religions to the Faculty of Theology, founded by the Catholic Church). Our chance to reach a quality decision on religion of emergent groups by expert opinions would not enlarge even when the State may possess a single definition of religion, approved by the European Association for the Study of Religions. Let us consider a small group of devoted enthusiasts, acting as a church and convinced that their activity is genuinely religious. Who is the State to tell them that their internal convictions are of different kinds, that they have misunderstood themselves? We have learnt from the scientific study of religion that we cannot freeze religion into monolith definitions, since it is a work in progress, a product of creative human beings in different social circumstances (see Črnič, 2001), who invented the State to serve their needs. Doubts of uninformed public servants on religion of applicant groups are therefore in most cases not enough to dismiss a claim for registration. To do this, one has to recognise positive attributes of the applicant group with administrative certainty (for example being a business entity or a self-declared philosophical society) and not only, which attribute is supposedly missing in his subjective perception of the same group (for example being non-religious). To conclude on this topic, we may define a new registered religious community in the same manner. This is a legal person of private law, which is especially designed for exercising a collective dimension of religious freedom and disposable to every applicant under the same conditions. The act of registration consequently does not mean a recognition of any other quality. With this procedure, the State only provides an administrative status: it does not judge the validity of the beliefs or the social utility of the group. Religious communities should earn these qualities by themselves with their actions and attitudes to their members and wider society. Currently,, there are 56 registered religious communities in Slovenia: 3 (5.4 percent) traditional religions, 4 (7.1 percent) immigrant or ethnic religions, 14 (25 percent) denominations and 35 (62.5 percent) NRMs.

Different commissions display an evolution in the management of religions by the State

The overall dynamic of relations between the State and religious communities in the past 30 years becomes evident by a simple listing of government’s working bodies, designed for communication with religious communities. Till 2000, the government has founded two working bodies for handling outstanding issues of the Catholic Church (1993, 1997) and one for the Lutheran Church (1999). Those have been followed by the Commission for dealing with outstanding issues of religious communities (2001, 2005, 2009), by Commission for a dialog with religious communities (2009) and finally by the Council for a dialog on religious freedom (2015). As already stated, the government has decided to satisfy wide spectre of singular needs first, defining a special role and some privileges of some religious communities; only after this it has been prepared to listen to others. After realising that there is no outstanding issue to settle left, the government has continued a formal dialog with religious communities. The topic of this dialogue, religious freedom, has finally become very specific and narrow. The State has therefore turned its attention from arbitrary deals with singular groups to the very essence of religious activity. The State has shifted its approach from satisfying demands, which may or may not be met to discussing tasks, which must be performed according to domestic and international legal standards. Religious communities have thus got a partner in a field, which is differentiating them from the rest of society, but at the same time, they are left alone considering their other needs and problems as this is a case with any other organisation. This process has happened in conditions of evident decrease of the significance of religion and religious organisations in general society and consequently in managing of the public sector and in absence of any state planning in the field of religious freedom. It is interesting that this process has never been dependent on political differences either. All governments and all ruling coalitions have contributed to this resolution.

The Case of the Office for Religious Communities

To conclude, these secularisation currents may also be illustrated by changes in status and tasks of the only specialised government institution, the Office for Religious Communities. It has been established in 1993 as a communication point of the State administration and religious communities, entering new democratic society. In the first period, almost any decision of the State on legal position of religious communities has been agreed, mediated, or at least debated by the Office. Specialisation of competencies of the Office has included the development of many supporting and facilitating functions, concerning dialogue between the State and religious communities, interreligious dialogue, conflict prevention and production of specialised knowledge. The formation of the administrative field of religious freedom (2012) has placed formerly more independent Office into the Ministry of Culture. Other priorities of this ministry, including in the organisation of employees, have caused the diminishment of all supporting and facilitating activities, and the complete dissolution of this office after 27 years of its existence not long after (2020). For the first time in the history of a new state, religious communities have thus become nothing more than a subject of uninformed state administration. Considering our simplistic temporary tools, we may realise that inclusivism has nevertheless become a dominant position or a result of 30-year-long evolution, but with an important deformation. The State has, during this process, come to a wrong conclusion that prevailing indifference to religion excludes the need for active care for religious freedom from its agenda.

Current developments: the state is mostly concerned with the dominant religion

After the decision that the Council for a dialogue on Religious Freedom is not needed anymore (2020) and the dissolution of the Office for Religious Communities at the Ministry of Culture (2020), the same government has founded the Council for Outstanding Issues of the Catholic Church (2021). Its mission is defined as collecting, recording, and studying of outstanding issues of the Catholic Church on domestic and international level (see STA, 19. 5.). Catholic sources (see Radio Ognjišče, 20. 5.) are specifying these outstanding issues as financing of Catholic elementary schools, maintaining of cultural heritage, and religious spiritual care in prisons, hospitals, retirement homes for elderly persons and in the Slovene Army (formation of a military diocese instead of existent vicariate). The last decision of the government, understood in the context of the previous ones, is not consistent with the dynamics of relations between the State and religious communities as described above. Lowering the level of state’s involvement with all religious organisations to the minimum, which actually represent a dissolution of the entire institutional care (which had been formed by the Council for a Dialogue on Religious Freedom and the Office for Religious Communities), with a simultaneous rise of the active attention to the dominant church only (formation of the Council for Outstanding Issues of the Catholic Church) is to say the least unusual for the Slovenian understanding of religious pluralism, as described above, and for forming an inclusive society.

References

- Cusack, Carole (2010): Invented Religions: Imagination, Fiction and Faith. Farnham: Ashgate.
- Črnič, Aleš (2001): Teorija in praksa definiranja religije [Theory and Practice in Defining of Religion]. Teorija in praksa 38(6), 1004-1016.
- Hervieu-Léger, Daniele (2000): Religion as a Chain of Memory. Cambridge: Polity Press.
- Lesjak, Gregor (2001): Nova religijska in duhovna gibanja v Sloveniji [New Religious and Spiritual Movements in Slovenia]. Teorija in praksa 38(6), 1108-1124.
- Lesjak Gregor and Lekić, Davor (2013): Država in verske skupnosti: kronika odnosov med letoma 2008 in 2011 [The State and Religious Communities: A Chronicle of Their Relations Between 2008 and 2011]. Teorija in praksa 50(1), 154-171.
- STA [Slovenian Press Agency] (2021): Vlada ustanovila svet za odprta vprašanja s Katoliško cerkvijo [The government has found the Council for Outstanding Issues of Catholic Church], 19. 5., 10. 6. 2021.
- Radio Ognjišče (2021): Vlada ustanovila svet za odprta vprašanja s Katoliško cerkvijo [The government has found the Council for Outstanding Issues of Catholic Church], 20. 5., 10. 6. 2021.

D 22 June 2021    AGregor Lesjak

CNRS Unistra Dres Gsrl

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