10 - Chapter 3 PDF

CHAPTER-III
COMPARATIVE STUDY OF LAW AND RELIGION IN

OTHER MAJOR DEMOCRACIES
3.1 Introduction
When we look at the natural world about us, we allude at the beauty and the
majesty of nature. We view the delicate rosy sunsets reflected in the wispy clouds, we
view the massive splendor of the mountains, gleaming and shining in their white coats
of snow in the winter, bursting with greenery and the color of flowers in the spring
and in the summer pointed with endless coats of yellow and red with the changing
leaves in the autumn. We can view about us vast expanse of the oceans sweeping
endlessly, wave upon wave, and finally beating upon some distant rocky shore or
some sandy beach. As we wander through an endless field of brightly colored flowers
on the prairie hill sides in the spring time, we are overwhelmed with the profession of
colors and beauty and variety with which nature has surrounded us.1
If we are observant there is one outstanding fact that cannot possibly escape
out attention nor can it fail to impress us, and that is the over-riding fact that nature is
governed by laws. The landscape may change, the face of nature upon any particular
areas of the earth may change, but the laws of nature never change. They are eternal,
they have always been thus and they always will be thus; they are immutable.2
Observing with increasing interests of the society it is pertinent each creature

has its own peculiar means of survival, of propagation, of gathering food, of defense,
and of ushering in the next generation. Not only does each creature have its particular
pattern for survival, but is this pattern are imbedded many peculiarities that are to
each creature inherently its own. Similarly, in observing the peculiarities of the human
race, we find an inherent characteristic that is universal and peculiar to the human
races, and that is the pursuit of some religion or other. When we study the history of
the different civilizations of the different people that have lived on the face of the
earth of the different races, we find almost without exception that each and every one
1
Ben Klassen, Natures Eternal Religion 1 (Church of The Creator, 1973).
2
Ibid.
219
of them had some kind of a religion. Whether it was one of the highly developed
civilizations of the Egyptians, or the Greeks, or the Romans, or whether it was some
backward colored tribe like the Indians in the Amazon region of South America, or on
the great plains of North America, or whether the Hottentons in Africa, no matter how
primitive they are, or how primitive they were, they all have had a religion, and they
all have some kind of a religion today.3
It is a matter of fact incontestable, that about 1,700 years ago all mankind were
polytheists. This is doubtful and skeptical principles of a few philosophers, or the
theism, and that too not entirely pure, of one or two nations, from no objection worth
regarding. Behold then the clear testimony of history. The farther we mount up into
antiquity, the more we find mankind plunged into polytheism. No marks, no
symptoms of any more perfect religion. The most ancient records of the human race
still present us with that system as the popular and established creed. The north, the
south, the east, the west give their unanimous testimony to the same fact.4 Hume
mentions:5
It appears to me, that if we consider the improvement of human

society from rude beginnings to a state of greater perfection,
polytheism or idolatry was, and necessarily must have been, the
first and most ancient religion of mankind.
In contemporary societies, religion is often associated with a particular moral

outlook, comprising extended cooperation, restricted socio-sexuality and delayed
gratification. Many take for granted that religiosity has been defined by a set of
similar values throughout the ages. But this has not always been the case. In hunter-
gatherer societies, in agro-pastoralist tribes and in archaic chiefdoms, religious
behavior was mostly about exchanging goods and services with supernatural power6:
performing rituals, sacrificing resources and respecting particular taboos in order to
get harvests, healing, offspring or protection from enemies. It is only the end of
3
Ibid.
4
David Hume, The Natural History of Religion (A and H. Bradlaugh Bonner, London, 1889);
available at https://www.people.rit.edu/wlrgsh/NaturalHistory.pdf. Accessed on 25-08-2016.
5
Ibid.
6
Nicolas Baumard and Coralie Chevalier, “The Nature and Dynamics of World Religions: A Life
History Approach”, available at
http://www.respb.royalsocietypublishing.org/content/royprsb/282/1818/20151593.full.pdf.
Accessed on 25-08-2016.
220
antiquity that new religions started putting ethical commands before pragmatic and
ritual commands. The moralizing doctrines of the Axial Age were then adopted by the
elite of several large empires and became the foundation of what would become world
religions. In the modern world, by contrast, religious concerns have receded in many
places as people in Europe and China, for instance, are largely indifferent to religion. 7
The goal of every religion is man‟s universal thirst for peace and goodness.
Man achieves this goal through many ways in which he expresses his belief and
attitudes. No matter when or how man developed from the time he became man, his
irresistible urge to worship has created and will continue to create endless forms of
religious behaviors. This force is so powerful in man that it has produced a Mosaic
kind of beliefs, attitude and practices. And considering the fact that each of the world
religions embraces varying beliefs and practices, areas of interaction and co-operation
are necessary for peaceful co-existence. This is because religion whether Hinduism,
Islam, Christianity, Taoism, Buddhism or African Traditional Religion, remains a
potent factor to reckon within the scheme of things the world over. Arthur Dobrin
quotes:8
Is there any cultural endeavor more ubiquitous then religion? It hardly

seems so. Estimates are that eighty-five percent of the world‟s
population is identified with a religion. This is an extraordinarily high
number, even if one discounts the fact that many identified with a
religion, may not be active participants or even believers in the core
tenets of the religion: a fact of human existence is that religion is
nearly everywhere, deeply embedded in modes of thought, art and
production. It is impossible to think of western culture without its
Jewish and Christian influences, the Arabic world without Islam, India
without Hinduism and East Asia without Confucianism, Buddhism and
Taoism. The face of humanity would be hardly recognizable without
the high lights of religion.
A few basic points about the global setting necessarily shape thinking about
religious freedom. The first point is that religion is here to stay. Even staunch
7
Ibid.
8
Arthur Dobrin, “Introduction” in Arthur Dobrin (ed.), Religious Ethics – A Sourcebook 4 (Hofstra
University Hampstead, NewYork, 2002).
221
advocates of the secularization thesis have concluded in light of the data that religion
is not withering away. To the contrary, we are witnessing the de-secularization of the
world and the resurgence of religion, especially in the public sector. 9 There is a major
reawakening of religion in Latin America and is Africa and throughout the Muslim
word.10 To the extent that the secularization thesis has any residual explanatory
power, it seems to apply primarily with respect to „European exceptionalism‟.11 Even
in China, which has particularly strong Governmental constraints on religion,
religiosity appears to be on the rise among many sectors of the population, and
Chinese leaders are rethinking how religion fits into and contributes to the building of
a „harmonious society‟.12
In the politics of modern society there are two standards which have universal
consensus in the world: one is “democracy”, the other “rule of law”. These two
standards are also reflected typically in legislation on religion.13 With the emergence
of “International Law” in the social transition from modern to past-modern history,
human kind realized the necessity and importance of universal standards, in
Legislation for issues of common interest. Especially after entering the era of
“globalization”, the idea that legislation should have universal usage and portability
has grown with the idea of “Universal Values”.14 Guarantees of religious liberty and
respect for conscience and belief are inevitably found in the constitutional orders of
liberal democratic societies and in international and religion human rights
instruments. To some extent, these reflect the concerns at the time of those charged
with drafting these instruments.
3.2 Law and Religion in United States of America
That perceptive French visitor, Tocqueville, wrote in 1831:15
9
Jose Casanova, Public Religions in the Modern World 2-4 (University of Chicago Press, Chicago,
1994).
10
W. Cole Durham, JR., “Religious Freedom in a Worldwide Setting: Comparative Reflections”, in
Universal Rights in a World of Diversity: The Case of Religious Freedom 362 (Pontifical
Academy of Social Sciences, Acta 17, 2012).
11
Ibid.
12
Ibid.
13
Zhuoxinping, “Religion and Rule of Law in China Today” Vol. 2009, Issue 3, BYU Law Review
519 (2009).
14
Ibid.
15
Quoted from Clifton E. Olmstead, Religion in America Past and Present 1 (A Spectrum Book,
Prentice-Hall, Inc., Englewood Cliffs, N.J., 1961).
222
America is the only country in which it has been possible to witness
the natural and tranquil growth of society and where the influences
exercised on the future condition of States by their origin is clearly
distinguishable.
His observation is instructive. American society, in its evolution, bore the

obvious marks of a dynamic encounter between an old world heritage and a new
world environment. In no area of human experience is this judgment more applicable
than in the realm of religious thought and life.16
Over a period of 350 years, the religious heritage of old Europe was adopted,
molded, assimilated on the American continent. Out of a seeming welter of
heterogeneous and often conflicting ideologies, there emerged a faith which, although
it still carried the imprint of its European ancestry, was uniquely American. Thus the
saga of American religion is one of metamorphosis.17
3.2.1 The General Study of American Religion
If we would have a thorough knowledge of the spirit and character of the

religion of the United States we must study the history of religion in England, first
and then in those other countries whose religious institutions must have considerably
influences those of America, in those consequence of the numerous emigrants from
them that have settled there, indeed it is very certain that the religious institutions of
America have been hardly less affected than the political, by colonists from Holland,
France, and other parts of the continent of Europe as well as from Scotland and
Ireland.18
Among all the nations of antiquity and among all the heathen nations of the
present day we find the religious institutions of the people incorporated with their
civil and political institutions. As soon as it appeared that Christianity was destined to
supplant paganism among the Roman people, as it did in the time of Constantine I.,
Christianity was made the religion of the Empire. Offences against the Church were
regarded as crime against the State and were punished with fines, imprisonment,
16
Ibid.
17
Ibid.
18
Robert Baird, Religion in America; or, An Account of the Origin, Progress, Relation to the State,
and Present Condition of the Evangelical Churches in the United States 31(Harper & Brothers,
New York, 1844).
223
banishment, and death.19 This relation to Christianity to the State has been
maintained, with various modifications, in all the countries of Europe, down to the
present day. It existed in England, the fountain head of national life: and it might be
having been expected that in the course of historic continuity it would prevail in the
colonies of England in America; unless special causes should operate to prevent it.
The expeditions fitted out in England for the founding of settlements in the new
world, had a religious, as well as commercial purposes.20
About the middle of region of that Great Princess Elizabeth, Queen of

England, viz. in the year 1584, Letter Patents were granted to Sir Walter Raleigh, and
others in Company, for discovering new lands in America; not hither to possessed by
any Christian. In pursuance of which grants, to finale ships were sited out by the
patentees, the one commanded by Captain Philip Amidus, the other by Capt. Barlow;
and on the 27th of April in the same year they sailed from the Thames; taking their
course by the Canary-Islands, towards the West-Indices. At last they debarked on a
very low land, which proved to be a small Island called Wokokan. And after taking
formal possession of the country, in the name of the Queen of England they carried on
a friendly correspondence with the Native Indians, who furnished them with great
variety of fish and venison. They continued this intercourse with the natives for some
time, still viewing the situation of the adjacent country; and after having obtained the
best information they could, of the number and strength of the Indian Nations in that
Neighborhood, and of their Feuds and Alliances one with another they returned to
England about the middle of September, and made such an agreeable report of the
fertility of the soil, and the healthiness of the climate that Queen, from thence
forward, seemed to favor the patentees Design of setting a colony in that country, to
which her majesty was pleased to the Name of Virginia.21
The first settlement was made by the London Company, on James River in
1607 and among the first laws made by the Assembly of Virginia, which met in 1619-
19
Isaac A. Cornelison, The Relation of Religion to Civil Government in The United States of America
– A State without a Church, But not without a Religion 1 (G.P. Putnam‟s Sons, New York, London
1895).
20
Ibid.
21
Sir William Keith, The History of The British Plantations in America-with A Chronological
Account of the most Remarkable things, which happened to the first adventures in their Feveral
Discoveries of that New World 38-39 (Printed at the expense of the society for the Encouragement
of learning by S. Richardson and sold by A. Millar, London, 1738); available at
https://www.archive.org/details/cihm_35357 ; accessed on 14-4-2016.
224
The first laws enacted with in the territory now occupied by the States - it was
enacted.22
1. That there shall be, in every plantation, where the people use to meet for the
worship of God, a house or room, sequestered for that purpose, and not to be
for any temporal use whatever; and a place emplaced in, sequestered only to
the burial of the dead.
2. That whatsoever shall absent himself from divine service on any Sunday,
without an allowable excuse, shall forfeit a pound of tobacco; and he that
absent himself a month shall forfeit fifty pounds of tobacco.
3. That there is uniformity in our Church, as near as may be, to the canons in
England, both in substance and circumstance; and that all persons yield ready
obedience unto them under pain of censure.
4. That no minister be absent from his Church above two months in all the year,
upon penalty of forfeiting half his means; and whatsoever shall be absent
above four months in the year shall forfeit his whole means and cure.
5. That whatsoever shall disparage a minister without bringing sufficient proof to

justify his reports, whereby the minds of his parishioners may be alienated
from him and his ministry prove the less effectual, by their prejudice, shall not
only pay five hundred pounds of tobacco, but also ask the Minister so
wronged, forgiveness publicly in the congregation……
The proclamations for swearing and drunkenness, set out by the Governor and
Council, are confirmed by the assembly; and it is further ordered, that the Church
wardens shall be sworn to present them to the commanders of every plantation, and
that the forfeitures shall be collected by them, to be for public uses.
It may not be without interest to quote here some portion of the act concerning
religion, passed in the General Session held at St. Maries on the Twentieth day of
22
The Statutes at large, being a collection of all the laws of Virginia, from the first session of the
Legislature in the year 1619. Published pursuant to an Act of the General Assembly of Virginia,
passed on the fifth day of February one thousand eighteen hundred and eight. By William Waller
Hening, Vol. I, pp. 67, 68, 122, 123; Quoted from see Supra note 19 at 6-7.
225
April A.D. 1649, and supposed to have been inspired, if not composed by father
Andrew White, S.J. as mentioned below:23
Forasmuch as in a well goverened xpian commonwealth matters

concerning religion and the honor of God ought in the first place to be
taken into serious consideration….. whatsoever p‟sons
shall…..blasheme God…..that is curse Him or deny our savior Jesus
Christ to be the sonne of God…or shall deny the Holy trinity….or shall
utter any reproachful speeches concerning….said Trinity….shall be
punished with death…or shall utter any reproachful words concerning
the blessed virgin Mary…the Holy Apostles or Evangelists…the sume
of five pounds.
Whatsoever p‟son……..shall……..call or denominate any

p‟son…….an heretick, schismatick, Idolator, Puritan, Independent,
Calvinist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead,
Sepatist, or any other name or terms in a reproachful manner shall
forfeit ten shillings sterling. Be it therefore enacted…..that no
person……….professing to believe in Jesus Christ shall……..be any
professing to believe in Jesus Christ shall………….be any ways
troubles molested, or discountenanced for in respect of his or her
religion more in the free exercise thereof…….nor any way compelled
to the belief or exercise of any other religion against his or her consent.
The Church of England continued to be the established Church of Virginia;

and the laws regulating the religious life of the people continued without essential
modification to be in force throughout the colonial period.24
The next settlement after that on the James River was made by the pilgrims,
who landed on play mouth rock, and then this settlement was followed by
Massachusetts Bay, Maine, New Hampshire, Connecticut, New Haven, the
23
M.F. Howley, Ecclesiastical History of Newfoundland 90-91 (Burns &Oates, LD, London. W,
1888).
24
Supra note 19 at 23.
226
confederation Rhode Island, Vermont, New York New Jersey, Pennsylvania,
Maryland, and Carolina, Georgia etc.25
It appears from the historical survey that up to the time of the colonization of
America the union of civil and religious institutions had been universal. In the various
colonial Governments founded in America, toleration, when secured, was only the
separation of some particular set of Christians, not of Christianity itself, from the civil
institutions. Even in the fundamental law of the province of Rhode Island, a Christian
purpose is expressly stated and a particular form of Christianity (Protestantism) was
required as a qualification for office.26
In the frame of Government of Pennsylvania, prepared by the proprietor,

William Penn, while the principle of toleration was most firmly established, the
Christian character of the Government was at the same time most positively asserted,
and the most rigid provisions made for its establishment. In the colonial Governments,
of larger religious freedom, no discrimination was made between the various divisions
of Protestantism, but they were protestant as against Roman Catholicism. In those of
largest freedom, no discrimination was made between the various divisions of the
Christian Church but they were Christian as against all other forms of religion, and
against unbelief. Not one was negative, or neutral, on the subject of Christianity.27
In the middle colonies- New York, New Jersey, Pennsylvania, and Delaware-
although there were some prosperous times, when the Churches were blessed under
the labours of some most Godly ministers, yet it cannot be said that religion
flourished during the colonial era.28 Nor was the state of things better in the Southern
colonies than in the middle, but worse. And yet the Savior had his faithful servants
there; and there, too, the visits of Whitfield and John Wesley were much blessed to
the keeping alive of piety in the Churches.29
It was a great calamity for the cause of pure religion that the principle of
uniting the Church with the State entered into the constitutions of so many of the
25
Id. at 23-84.
26
Id. at 85.
27
Id. at 85-86.
28
Rev. Robert Baird, State and Prospects of Religion in America, Being a Report made at the
Conference of the Evangelical Alliance, in Paris, August 25th, 1855. 22 (Aylott and Co.,
Paternoster Row and Hatchard and Son, Piccadilly; Edward Suter, 32, Cheapside; London, 1855).
29
Ibid.
227
colonies. In Virginia, and nearly all the other southern colonies, it was the Episcopal
Church which was established by law, and supported by the civil power. Until the
Revolution, that Church in America was under the care and Governments of Bishop
of London. All its Ministers were obliged to receive consecration to the sacred office
in England. For more than one hundred years there was no toleration whatever, in
Virginia, for other forms of Protestantism than that of the Episcopal Church, or
“Church of England”, as it was more commonly called. It was with great difficulty
that Baptist and Presbyterian ministers at last forced their way, if we may so say, into
that great colony. Some of the earlier Baptist Ministers had the honour to preach
Christ from the windows of the prisons in that colony; and the first Presbyterian
ministers met with rough usage. At times it was not much better in the Carolinas and
Maryland, notwithstanding the tolerant spirit of John Locke and Lord Calvert.30
There were times in the colonial history of America when the word toleration
could be used in description of the Governmental attitude towards certain forms of
religious faith and worship. Thus, after many struggles, the authorities of
Massachusetts concluded to tolerate Episcopalians and Baptists while the
Presbyterians were compelled to be satisfied for many years with the more or less
liberal toleration of New York and Virginia. But for over a hundred years there has
been neither place nor need for toleration in these States, where the religious equality
of all men before the law is made a corner-stone in the foundation of rights.31
3.2.2 Religious liberty under the Constitution of the United States of America
On the tenth of May, 1776, the delegates of thirteen original colonies,

assembled at Philadelphia, Pa…passed a recommendation to the effect that each
colonial assembly should meet and agree upon a constitution, or frame of
Government, for its people. On 15, a preamble to this resolution was adopted,
recommending that each colony declare it to be its intention to suppress the exercise
of all British authority in that colony.32 Some of the colonies very explicitly and
emphatically acted upon the recommendation of this general body; but as already
pointed out; all did not act upon the recommendation immediately. Some, interpreting
30
Id. at 23.
31
Sanford H. Cobb, The Rise of Religious Liberty in America- A History 9 (The Macmillan
Company, New York, London, 1902).
32
Charles M. Snow, Religious Liberty in America 232 (Review & Herald Publishing Association,
Washington D.C., 1914).
228
a right the second sentence of the Declaration of Independence in reference to the
equality of men, or having learned aright the lessons of religious tyranny rehearsed
throughout their borders asserted the equality of human rights in matters of
conscience as well as in civil things. Therefore they were outspoken in their
declarations in reference to freedom from human control in matters of religious faith
and practice. Through flood and fire, through fine, imprisonment, and exile, the
inhabitants of those colonies were learning the sacred value of soul freedom.33
There appears to have been no formal provisions made by the Government of

the United States for the promulgation of the constitution, except by a concurrent
resolution of the two houses of Congress, made during the first congress, (6th July,
1789), whereby it was “Resolved, that there be prefixed to the publication of the Acts
of the present session of Congress a correct copy of the Constitution of Government
for the United States.”34 This however was sufficient to show the intention and the
judgment of the Patres Patrise upon the subject.35
As stated earlier, the present Constitution of the United States of America was
adopted at Philadelphia Convention held in 1787. It came into force in 1789, after it
had been ratified by the minimum required number of States. The Constitution is
unique in many respects. It is one of the briefest Constitutions in the world. Originally
it consisted of seven Articles but twenty-six amendments have been effected in it
during the succeeding years. The Constitution presents a classic example of its
rigidity. The separation of powers a doctrine propounded by Montesquieu, has found
favor in the American Constitution in a way unknown to any other Constitution of the
world. The application of the theory of separation of powers has been combined with
a remarkable system of checks and balances in the United States administration.
Out of that turmoil was coming, a statement of a principle that was to

characterize this country as different from any other upon the earth. And that was the
33
Ibid.
34
W. Hickey, The Constitution of the United States of America, with an Alphabetical Analysis; The
Declaration of Independence; The Articles of Confederation; The Prominent Political Acts of
George Washington; Electoral Votes for all the President and Vice-Presidents; The High
Authorities and civil officers of Government, from March 4, 1789, to March 3, 1847;
Chronological Narrative of Several States; and other interesting matters; with a descriptive
account of the State papers, public documents and other sources of political and statistical
information at the seat of Government XXIV (L. Johnson & Co., Philadelphia; 1851).
35
Ibid.
229
tenet, that man is accountable to God alone in matters of faith and conscience.
Individuals had held it before, the colony of Rhode Island had asserted and acted upon
it, but no nation had ever espoused it.36 That doctrine was germinant in the
Declaration of Independence; for the equality of men precludes the possibility of one
man regulating the religious belief and practice of another. That doctrine spoke out
more plainly in Article VI of the Federal Constitution, in these words-
No religious test shall ever be required as a qualification to any office

or public trust under the United States.
Besides this provision the Constitution guarantees Fundamental Rights of

person, property and liberty. It is, however, noteworthy that these rights were
incorporated in the Constitution by a number of amendments effected after the
Constitution was promulgated. They were not enumerated in the original draft of the
Constitution. But by subsequent amendments, individual liberty has been effectively
safeguarded. The rights of citizens were enforceable by recourse to the judiciary.
These rights cannot be modified or suspended except by a constitutional amendment.
Freedom of speech, of worship, of habeas corpus, no unreasonable search, and
seizure which constitute the hallmark of a just society, are now part and parcel of the
Constitution. As such, they are ensured to the Americans.
The first ten amendments to the United States Constitution, in their original
form, are collectively known as the Bill of Rights. These amendments were ratified on
December 15, 1791 and known as „Bill of Rights.‟37 The amendments were
introduced by James Madison to the 1st United States Congress as a series of
legislative Articles.38 The Bill of Rights enumerates freedoms not explicitly indicated
in the main body of the Constitution.
It is significant also that the first amendment to the Constitution of the United
States should further deal with the true religious liberty. It reads:
Congress shall no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of
36
Supra note 32 at 232- 233.
37
Durga Das Basu, Comparative Constitutional Law 63 (LexisNexis, Gurgaon, 3rded; 2014).
38
While twelve amendments were proposed by Congress, only ten were originally ratified by the
States. Of the remaining two, one was adopted 203 years later as the twenty-seventh amendment,
and the other technically remains pending before the States; quoted from ibid.
230
speech, or the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
The language of Article VI and the first amendment upon religious question
indicates that it was the purpose of their framers to leave religious faith unfettered and
religious practices untrammeled by the enforcement of a legal ritualism. That doctrine
advocated by the Anabaptists on the continent of Europe and in the British Isles, and
for whose advocacy thousands on thousands of them were slaughtered; that doctrine,
whose acceptance and practice made martyrs of many New Englanders, and sent
Roger Williams into exile to establish a better State and teach a more Christian
brotherhood; that doctrine whose every inch of progress the established Church of
Virginia hotly contested for a hundred years - that doctrine was set forth as the very
guiding star of the infant republic of America. A nation assumed the role of teacher,
and set a lesson for the world to learn. And the world has taken note of it. Republics
have sprung up, monarchies have granted Constitutions and called the people into to
legislative assemblies, and nation‟s centuries old in intolerance and persecution are
granting to their people freedom of conscience and liberty of worship. 39
Because no mention of the Supreme Being, or of the Christian religion, is to

be found in the Constitution of the United States some have pronounced it infidel,
others atheistically. But that neither opinion is correct will appear from a moment‟s
consideration of the case. Most certainly, the convention which framed the
Constitution in 1787 under the presidency of immortal Washington, was neither
infidel nor atheistically in its character. All the leading men in it were believers in
Christianity, and Washington as the entire world knows, was a Christian. Several of
the more prominent members were known to be members of Churches, and to live
consistently with their profession. Even Franklin, who never a vowed his religious
sentiments, and cannot be said with certainty to have been an infidel proposed, at a
time of great difficulty in the course of their proceedings, that a minister of the Gospel
should be invited to open their proceedings with prayer. Many members of the
convention had been members also of the continental Congress, which carried on the
national Government from the commencement of the Revolution until the
39
Supra note 32 at 233-234.
231
Constitution went into effect. Now the religious views of that Congress we shall
presently see from their acts.40
The framers of the Constitution seem, in fact, to have felt the necessity of
leaving the subject of religion, as they left many things besides, to the Governments
of the several States composing the union. It was a subject on which these States had
legislated from the very first. In many of them the Christian religion had been, and in
some it still continued to be, supported by law; in all, it had been the acknowledged
basis of their liberty and well-being and its institutions had been protected by legal
enactments. Nothing, accordingly, could be more natural in the convention than to
deem the introduction of the subject unnecessary.41
3.2.3 States Constitution and Religions Liberty
From the birth of the colonies to the birth of the nation the consciences of men
were struggling for freedom from the merciless grip of a religious system made
powerful and oppressive by its unholy union with a secular power. The battle in each
colony was waged for the same principle, against the same foe, and yet the result was
achieved in a different way in each colony and that difference manifested itself later
in the Constitutions of the different States when statehood had been reached.42
The circumstances and constituents of the national Government necessitated

limitations of its law of liberty. Its provisions applied only in the federal sphere and
had no force of law against a religious establishment in any of the States. The
Constitution conferred on the General Government the right and duty to maintain in
every State a republican form of Government, but it bestowed no right of interference
with the institutions of a religious character which any State might choose to
establish, so long as the moral safety and the integrity of the nation were not involved.
If, for example, one of the States should set aside its present form of Government and
set up a monarchy, the national Government under the Constitution would be required
to prevent such action. But if one of the States should change its own Constitution and
set-up a State - Church, with the peculiar perquisites and power of an establishment
40
41
Ibid.
42
232
and should put such Church upon the public treasury for support, the general
Government has no power to prevent it.43
On fourth July, 1776, their (The States) representatives met in congress, and
prefixed to their Declaration of Independence a statement of principles such as has
hither to been found only in the work of thinkers, theorists, and men under
persecution:44 “we hold these truths to be self-evident, that all men are created equal;
that they are endowed by their creator with certain inalienable rights; that among
these are life, liberty, and the pursuit of happiness; and that, to secure these rights,
Governments are instituted among men, deriving their just powers from the consent of
the Governed.”45
In all the State Constitutions those principles are found differently expressed,
but practically identical and plainly indicative of common origin. The Delaware
Constitution furnishes representative language:46
That all men have a natural and inalienable right to worship Almighty
God according to the dictates of their own consciences and
understandings, that no man ought or of right can be compelled to
attend any religious worship or maintain any religious ministry
contrary to or against his own free will and consent, and that no
authority can or ought to be vested in, or assumed by any power
whatever that shall in any case interfere with, or in any manner control
[sic] The right of conscience and free exercise of religious worship.
The Pennsylvania Constitution adds a safeguard against religious

discrimination:47
Nor can any man, who acknowledges the being of a God, be justly
deprived or abridged of any civil rights as a citizen, on account of his
religious sentiments or peculiar mode of religious worship.
43
44
45
Ibid.
46
Article II, The Delaware Constitution, 1776.
47
Article II, The Pennsylvania Constitution, 1776.
233
It also included immunity for conscientious objectors:48
Nor can any who is conscientiously scrupulous of bearing arms; be

justly compelled thereto, if he will pay such equivalent.
The Constitution of New Jersey gave exemptions from religious taxes,

applying language, such as:49
Nor shall any person………ever be obliged to pay tithes, taxes, or any

other rates for the purpose of building or repairing any other
Church….or ministry, contrary to what he believes to be right.
The Constitution of New York addressed both Church and State intrusions on
conscience, and sought:50
Not only to expel civil tyranny, but also to guard against the spiritual
oppression and intolerance where with the bigotry and ambition of
weak and wicked priestess and prim as have scourged mankind [and
therefore] declare, that the free exercise and enjoyment of religious
profession and worship without discrimination or preference, shall
forever be allowed, within State, to all mankind.
It is the Constitution of South Carolina, adopted in the year 1778, that we find
the greatest divergence from the federal Constitution upon the principles of religious
liberty. It reads:51
That all persons and religious societies who acknowledge that there is
one God, and a future of rewards and punishments, and that God is
publicly to be worshiped, shall be freely tolerated. The Christian
protestant religion, shall be deemed, and is hereby constituted and
declared to be, the established religion of this State. That all
denominations of Christian Protestants in this State demeaning
themselves peaceably and faithfully shall enjoy equal religious and
civil privileges.
48
Article VIII, Ibid.
49
Article XVIII, The Constitution of New Jersey, 1776.
50
Article XXXVIII, The Constitution of New York, 1777.
51
Article XXXVIII, The Constitution of South Carolina, 1778.
234
Whereas the North Carolina Constitution went even further, stating in part
that:52
No person, who shall deny the being of God, or the truth of the
Protestant religion, or the divine authority either of the old or New
Testaments, or who shall hold religious principles incompatible with
the freedom and safety of State, shall be capable of holding any office
or place of trust or profit in the civil department within the State.
The Georgia Constitution, however, was more generous towards religious

liberty than other Southern States during this period when it granted its citizens:53
The free exercise of their religion; provided it is not repugnant to the

peace and safety of the State; and shall not, unless by consent, support
any teacher or teachers except those of their own profession.
Thus, the whole power over the subject of religion if left exclusively to the
State Governments, to be acted upon according to their own sense of Justice, and the
State Constitutions, and the Catholic and the Protestant the Calvinist and the
Armenian, the Jew and the Infidel, may sit down at the common table of the National
Councils, without any inquisition into their faith, or mode of worship.54 The Supreme
Court was first presented with the question of whether any terms of the Religion
clauses of the first amendment limited the State, in Permoli v. Municipality No. 1 of
the city of New Orleans,55 the court held that, “the Constitution of the United States
makes no provision for protecting the citizens of the respective States in their
religious liberties; this is left to State Constitutions and laws.”
Within the time frame between the passage of the first Amendment and the
fourteenth amendment, the court decided only six cases that directly or indirectly
involved the question of the religion.56 In none of these decisions did the court even
52
Article XXXVII, The Constitution of North Carolina, 1776.
53
Article LVI, The Constitution of Georgia, 1776.
54
J. Story, Commentaries on the Constitution of the United States-with a Preliminary Review of the
Constitutional History of the Colonies and States, Before the Adoption of the Constitution 1865
(Hilliard, Gray, and Company, Boston; Brown, Shattuck, and Company, Cambridge, 1833).
55
44 US 589 (1845). Available at
https://www.supreme.justia.com/cases/federal/US/44/589/case.html. Accessed on 14-09-2016.
56
Baker v. Nachtrieb, 60 U.S. (19 How.) 126 (1856); Smith v. Swormstedt, 57 U.S. (16 How.) 288
(1853); Goesele v. Bimelar, 55 U.S. (14 How.) 589 (1852); Permoli v. Muncipality No. 1 of the
city of New Orleans, 44 U.S. (3 How.) 589 (1845); Vidal v. Mayor of Philadelphia, 43 U.S., (2
235
insinuate that, the religious clauses of the first amendment should be applied to the
States. Therefore, prior to the war between the State and the adoption of the
fourteenth amendment, it was the prevalent understanding that the religion clauses of
the first amendment did not function as a restriction on State action pertaining to
religion.57
The ratification of the fourteenth amendment elevated new questions as to

whether the States involvement with religion was limited by the Constitution in any
way.58 Two doctrines have emerged from the debate as to the framers intent. The first
doctrine, of “total incorporation”, has never been accepted by the Supreme
Court.59Consequently, the court has never held that framers of the fourteenth
amendment sought to apply the entire Bill of Rights towards the States.60 The other
doctrine, which was adopted by the court, applied specific rights established in the
How.)127 (1844); Terrett v. Taylor, 13 U.S. (Granch) 43 (1815); see Carl H. Esbeck, „Table of
United States Supreme Court Decisions Relating to Religious Liberty 1789-1994”, 10 J.L. &
Religion 573 (1993-94); see also Christopher N. Elliott, “Federalism and Religious Liberty: were
Church and State Meant to Be Separate?” available at
http://www.lawandreligion.com/sites/lawandreligion.com/files/Elliott.pdf. Accessed on 14-05-
2016.
57
Elliot, op. cit.
58
The material section of the fourteenth amendment for this questions section 1. It reads:
All persons born on naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges and immunities of citizens of United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
Following the adoption of the fourteenth amendment, and prior to 1934, the court never suggested
that the religious clauses could act as restrictions on States action, except in one case where the
court insinuated that religious liberty was one aspect of the liberty protected under the fourteenth
amendment. In Meyer v. Nebraska, 262 U.S. 390 (1923), the court through dictum, discerned that
“liberty”, as defined under the fourteenth amendment and protected from State action,
encompasses many rights. Among these rights, the right “to worship God according to the dictates
of his conscience.” Other than this minor limitation, States were free to contemplate religious
matters as they choose under their State Constitution, this was despite the continuous endeavors by
members of congress to pass constitutional amendments that would have foisted the religious
clauses upon the States. From 1876 until 1930, at least 16 such amendments were introduced, but
all of them failed. F. William O‟ Brien, “The States and „No Establishment‟: Proposed
amendments to the Constitution since 1798”; 4 Washburn L.J. 183, 210 (1965); see also Elliot,
ibid.
59
A most, only ten justices who have served on the court at varying times have advocated the total
incorporation doctrine. A list of justices is given by Justice Douglas Gideon v. Wain right, 372,
U.S. 335, 346 (1963).Available at
http://www.supreme.justia.com/cases/federal/US/372/335/case.html. Accessed on 18-05 2016
60
The “total incorporation” doctrine, associated must often with justice Hugo Black, accommodated
the belief that the framers of the fourteenth amendment intended to make the provisions of the Bill
of Rights applicable to the States either through the „Privileges and Immunities‟ clause or the “due
process” clause of the Amendment. See Adamson v. California, 332, U.S. 46, 68 (1947); Duncan
v. Louisiana, 391 U.S. 145, 162 (1968); see also Richard L. Ayres, “On Misreading John Bingham
and the Fourteenth Amendment” 103 Yale L.J. 57, 103-104 (1993).
236
Bill of Rights towards the States through the due process clause of the fourteenth
amendment. This doctrine is called “selective incorporation.”61
The court first addressed a case concerning religious liberty with the
application of the “selective incorporation” doctrine in Hamilton v. Regents of the
University of California62 the belief that the due process clause protected multiple
facts of religious liberty was recognized not only by a unanimous court, but by the
concurring opinion of Justice Cardozo, who declared, “I assume for present purposes
that the religious liberty protected by first amendment against invasion by the Nation
is protected by the Fourteenth Amendment against invasion by the States”.63
This interpretation has long since been abandoned by the court, beginning at
least, with Everson v. Board of Education,64 in which the court, without dissent on
this point, declared that the establishment clause forbids not only practices that “aid
one religion” or “prefer one religion over another”, but as well those that “aid all
religion” or “prefer one religion over another”, but as well those that “aid all
religion”. Recently in reliable on published scholarly research and original sources,
court dissenters have recurred to the argument that what the religion clauses,
principally the establishment clause, prevent is “preferential” Governmental
promotion of some religions, allowing general Governmental promotion of all
religion in general.65 The court has not responded, though Justice Souter in a major
concurring opinion did undertake to rebut the argument and restate the Everson
position.66
3.2.4 The Relationship between Church and State: Wall of Separation
Over the course of the last half-century, a distinctive category of new degree-
granting programs has emerged in American institutions of higher education. For the
61
The doctrine of “selective incorporation”, which was defined by Justice Cardozo in Palko v.
Connecticut 302 U.S. 319 (1937), was understood to require adhesion to those fundamentals of
liberty and justice that are implicit in the concept of ordered liberty. Available at
http://www.supreme.justia.com/cases/fedral/US/302/319/case.html. Accessed on 14-09-2016.
62
293 U.S. 245 (1934), available at
https://www.supreme.justia.com/cases/fedral/US/293/245/case.html. Accessed on 14-09-2016.
63
Ibid. at 265.
64
330 U.S. 1, 15 (1947); available at
http://www.supreme.justia.com/cases/federal/US/330/1/case.html. Accessed on 14-09-2016.
65
Wallace v. Jaffree, 472, 28, 91 (1985) available at
66
Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992); available at
http://www.law.cornell.edu/supremecourt/text1505/57; Accessed on 14-09-2016.
237
purpose of this inquiry, such programs will collectively be referred to as Church, State
and society programs. These programs are devoted to better understanding the
relationship between State authority and religious practice, and this relationship
affects the society. It is a subject commonly and broadly referred to as a realm of
“Church and State”. So significant is the topic to which these programs dedicate
themselves that scholar Emil Brunner has even described it as “the greatest subject in
the history of the West.”67
Historically, State - Church relations have been a significant source of political

conflict. Attention is drawn at this early stage to the significant differences between
European and American traditions in this regard. Main stream Western European
tradition is much more in favor of State accommodation of and cooperation with
religious organizations, while the American tradition leans towards separation. Both
models are essentially different from both theocracy and from the open State
antagonism towards religious organization that was the reality in all communist
countries and still is in North Korea, Cuba and China. There are many, mainly
historical and social, reasons for these differences.68
Many Americans believe that there is and ought to be a wall of separation

between religion and State in the U.S. Such a perspective, however, does not answer
whether a particular State policy is religiously influenced, nor does it determine the
extent to which generally applicable laws may infringe on free religious practice. And
as Bob Edgar, President of Common Cause and former General Secretary of The
National Council of the Churches of Christ in the USA have pointed out, the
separation between Church and State does not necessarily imply that people of faith
should be distanced from the Governments. Faith can play a considerable part in
influencing policy makers‟ decision. A representative from a district with a large
Baptist population may vote more in line with the values of his or her constituency. A
Muslim-American Political action committee may lobby Congress on a piece of
67
Emil Brunner, The Divine Imperative 552 (The Westminster Press, Philadelphia, 1947) Quoted in
Catharine Anna Meyer, Studying the Relationship between Church and State: Practical limit of
Church, State, and Society Programs. In Higher Education, available at
http://www.baylor.ir.tdl.org/baylor-
ir/bitstream/handle/2014/3005/meyer_baylor_masters.pdf?secvence=4; accessed 15-09-2016.
68
Ahmet Alibasic, Models of State-Church Relations in Europe and the USA and their
Consequences; available at http://www.bosanskialim.com/rubrikeltekstovi_save/000366R017 pdf.
accessed on 15-09-2016.
238
legislation that affects Islamic practices at home or American policy abroad. All
citizens may cast a vote to determine who will represent them, write letters to their
Senators and participate directly by advocating values and policies.69
Separation of Church and state is probably the most distinctive concept that
the American constitutional system has contributed to the body of political ideas. In
1797, when the first Amendment‟s prohibition that “Congress shall make no law
respecting an establishment of religion”, was added the United States Constitution, no
other country had provided so carefully to prevent the combination of the power of
religion with the power of the national Government.70
A great many of the early American settlements were formed by dissident

religious minorities feeling from the protestant establishments of England, Ireland,
and Scotland. Paradoxically many Europeans who fled to the new world to escape
established religion agreed that Church and state should be combined in their new
settlements. With few exceptions, those who fled religious persecution were no more
tolerant of religious dissenters than were those from whom they had fled. Thus,
established Churches became the order of the day in early America.71 Robert L. Cord
mentions:72
At the outbreak of the American Revolution in 1775 there were

established Churches in nine of the thirteen colonies. The Anglican
Church had been established in Virginia in 1609, in New York‟s lower
countries in 1693, in Maryland in 1702, in South Carolina in 1706, in
North Carolina nominally in 1711 and in Georgia in 1758. The
congregational Church was established in Massachusetts, Connecticut,
and New Hampshire. By the time that the constitutional convention
assembled in Philadelphia in the summer of 1878, however, only
Georgia, and South Carolina, Connecticut, Massachusetts, and New
Hampshire had retained their religious establishment. The Anglican
69
David M. DeBartolo and Amanda Kadlec, Religion and State Relationships: A Middle East, U.S.
and EU ‘Trialogue 5; available at http://www.library.fes.de/pdf-files/bueros/usa/06227.pdf
accessed on 20--9-2016.
70
Ibid.
71
Anson Phelps stokes and Leo Peeffer, Church and State in the United States, rev. ed. In vol. 1;
Quoted in Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction 3
(Baker Book House, Michigan, 1988).
72
Id. at 4.
239
Church had been disestablished in Virginia in 1786 and in New York,
Maryland, and North Carolina during the Revolutionary war. The
elimination of established Churches in the several states continued
after the ratification of the Federal Constitution in 1788 and
culminated in the disestablishment of the congregational Church in the
Connecticut in 1818, in New Hampshire in 1819, and in Massachusetts
in 1833.
For those in the new United States who were concerned about the Union of
Church and State at the level of National Government. The activities of James
Madison and Thomas Jefferson in disestablishing the Anglican Church in Virginia
provided a useful legacy. Madison‟s “Memorial and Remonstrance against Religious
Assessments”, written in 1785 in opposition to the use of Virginia‟s public funds to
pay teachers of the Christian religion,73 and Jefferson‟s „Bill for establishing religious
freedom‟ in Virginia, purposed in 1779 and enacted in 1786,74 were immensely
important documents to disestablishmentarians who urged the separation of Church
and State. Both documents would be invoked more than 150 years late when in 1947
the United States Supreme Court first comprehensively interpreted the “Establishment
of Religion” clause of the first amendment.
In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury,

Connecticut, in which he declared that it was the purpose of the first amendment to
build “a wall of separation between Church and State”.75 In Reynolds v. United States
of America,76 Chief Justice Waite for the court characterized the phrase as “almost an
authoritative declaration of the scope and effect of the amendment.” In its first
encounters with religion-based challenges to state programs, the court looked to
Jefferson‟s metaphor for substantial guidance.77
73
Saul K. Padover (ed.), The Complete Madison 299-306 (Harper and Brothers, New York, 1953);
Quoted in Id. at 4.
74
Ibid. at 4-5.
75
The writings of Thomas Jefferson 281 (A. Libscomb (ed.), 1904); Quoted from First Amendment-
Religion and Expression 972 (Authenticated U.S. Government Information, GPO); available at
http://www.gpo.gov/fdsys/pkg/GPO-CONAN.../pdf/GPO-CONAN-2002-9-2.pdf. accessed on 16-
09-2016.
76
98. U.S. 145, 164 (1879); available at
http://www.supreme.justia.com/cases/fedreal/US/98/145/case.html; accessed 16-09-2016.
77
240
Although the first amendment was added to the Constitution in 1791, it was
not until 1947, in Everson v. Board of Education,78 that the Supreme Court
comprehensively defined what the Constitution separation of Church and State meant.
In 1947, the U.S. Supreme Court ruled essentially that the first amendment had
erected a “high and impregnable” wall between Church and State. The court‟s
decision cited carefully selected historical instances and documents to justify its broad
interpretation of the separation of Church and State required by the constitution.
During the third of a century following the Everson decision, the Supreme Court has
invariably continued to use the historical analysis to support its many decisions in
“Church State” cases.79
The concept of neutrality itself is “a coat of many colors”, 80 and three

standards that could be stated in objective fashion emerged as test of Establishment
clause validity. The first two standards were part of the same formulation. “The test
may be stated as follow: What are the purposes and the primary effects of the
enactment? If either is the advancement or inhabitation of religion then the enactment
exceeds the scope of legislative power as circumscribed by the Constitution. That is to
say that to withstand the strictures of the Establishment clause there must be a secular
legislative purpose and a primary effect that neither advances nor inhibits religion.”81
The third test is whether the Government entangles with religion? The test is
inescapably one of degree………. the questions are whether the involvement is
excessive, and whether it is a continuing one calling for official and continuing
surveillance leading to an impermissible degree of entanglement?82 In 1971 these
three tests were combined and restated in Chief Justice Burger‟s, opinion for the court
in Lemon v. Kurtzman,83 and are frequently referred to by reference to that case name.
78
See Supra note 64.
79
Robert L. Cord; see Supra Note 56 at XIII.
80
Board of Education v. Allen, 392 U.S. 236, 249 (1968); available at
81
Abington School District v. Schempp 374 U.S. 203, 222 (1963). Available at
82
Walz v. Tax Commn 397 U.S 664, 674-75 (1970); available at
https://supreme.justia.com/cases/federl/US/397/664/case.html. Accessed on 16-09-2016.
83
403 U.S. 602, 611-613 (1971); available at
241
D.E. Smith has given a critical note on the application of “Wall of Separation”
between Church and State in United States, in following words:84
Jefferson‟s “Wall of Separation” - a strict interpretation of Church -

State separation was not acceptable to all Americans then, nor is it
now. The appointment of Protestant, Catholic, and Jewish Chaplains in
armed services, the tax exemption granted to Churches and
synagogues, the opening of State and National legislative sessions with
prayer-all attest to the fact that the separation is not absolute.
Nevertheless, with relatively few exceptions the basic principles of
religious freedom and Church-State separation have been faithfully
adhered to throughout 170 years of American history. It would be
difficult to exaggerate either the inherent significance or the influence
of this great experiment.
It is pertinent to quote the words of John F. Kennedy:85
Finally, I believe in an America where religious intolerance will

someday end-where all men and all Churches are treated as equal-
where every man has the same right to attend or not to attend the
Church of his choice-where there is no catholic vote, no anti-Catholic
vote, no bloc voting of any kind and where Catholics, protestants, and
Jews, at both the lay and pastoral level, will refrain from those
attitudes of disdain and division which have so often marred their
works in the past, and promote instead the American ideal of
brotherhood.
-John F. Kennedy
3.3 Law and Religion in United Kingdom
The United Kingdom is a rare example of a democracy without a written

Constitution.86 The British Constitution is “Unwritten” in the sense that it is not set
84
Donald Eugene Smith, India as a Secular State 17 (Princeton University Press, Princeton, New
Jersey, Oxford University Press, London and Bombay, 1963).
85
Quoted in “Know your Rights-A Guide to the United States Constitution” available at
https://www.justice.gov/sites/default/files/usao/2012/04/27/civil%20Rights%20Book-NE-2.pdf.
242
out in an “especially important” consolidated document but rather is rooted in custom
and usage, and much of it consists of “conventions” that are not recorded in any
solemnized document.87 This is not to say that there are no written sources for
Constitutional principles; many of these principles are derived from legislative Acts
or judicial opinions.88 But no authoritative and comprehensive statement of basic
Constitutional principles exists there is no legal document which must be amended to
effect Constitutional change, and there is a quintessentially British preference for
Constitutional practices that evolve and win acceptance over time.89 The traditional
explanation for the absence of a formal, self-contained, and written Constitution has
been the relative stability of British institutions. Unlike most countries with written
Constitutions, such as the United States, in the United Kingdom there has been no
dramatic break with previous Constitutional arrangements that has required a
restatement of Constitutional principles since at the latest, the beginning of the
eighteenth century.90
One of the unique features of the British Constitution is the gap that exists
between Constitutional theory and Governmental practices. In England, “nothing is
what it seems to be, or seems to be what it is”91. In theory, the Government of
England is vested in the crown. All officers of Government are the servants of the
Crown, summoned and dismissed at Royal discretion. No law is effective without the
Crown‟s consent; no appointment is ever made save in the name of the Crown. No
Parliamentary election can be held save in obedience to the King‟s writ. The King is
the commander-in-chief of all the British Forces. The King alone can declare war and
conclude peace and treaties; it is the Royal Navy, His Majesty‟s judges, His Majesty‟s
Government, His Majesty‟s “loyal opposition” and even His Majesty‟s subjects.
Apparently it reflects that, the King is the source of all power and fountain of
justice.92
86
Duglas W. Vick, “The Human Rights Act and the British Constitution”, Vol. 37: 329, Texas
International Law Journal 333 (2002); available at
https://www.tilj.org/content/journal/37/num2/vick329/pdf. Accessed on 20-09-2016.
87
James Bryce, Constitutions 5-6 (1905); Quoted ibid.
88
Hilare Barnett, Constitutional and Administrative Law19-30 (3rd edition, 2000); Quoted from ibid.
89
Ibid.
90
Ibid.
91
Vishnoo Bhagwan, Vidya Bhushan and VandanaMohla, World Constitutions - A Comparative
Study 14 (Sterling Publishers Private Limited, New Delhi, 10 th Ed. 2014).
92
Ibid.
243
But all this is in theory. As Ogg remarks, “the Government of the United
Kingdom is in ultimate theory an absolute Monarchy, in form a limited Constitutional
monarchy and in actual character democratic republic.”93 In practice, the King has
become merely a figurehead. He reigns but does not rule. Through gradual stages, all
political power has shifted from the King to the people‟s representatives in
Parliament. The King has now long ceased to be a directing factor in Government and
he virtually performs no official acts on his own initiative. Practice has quite
overturned theory. Ogg remarks, “there have come to be, in a sense, two Constitutions
rather than one- the Constitution that represents the systems as it is supposed to be
and the Constitution that represents it as it actually is.”94 The truth is that the King, if
he acts at all, acts only through Ministers. England has become today not only a
„limited monarchy‟ but to use the phrase of Mr. and Mrs. Webb‟s a “Crowned
Republic.”95
3.3.1 Religion in United Kingdom
At the dawn of the sixteenth century one form of religion only was recognized
in the greater part of the Western World. Christian Europe, with the solitary exception
of the Muscovite territory, at that time professed to be one in faith and one in
ecclesiastical Government, the various nations and people forming parts of a single
organized Church with its center at Rome. Here and there, indeed, small bodies of
men and women had broken away from the visible unity of the Catholic Church.96 But
on all hands these were regarded merely as sectaries with no call for consideration
except as heretics such as a Church had frequently cost off from itself in the course of
its long existence. In less than half a century change had come,97 “the state of things,
which whether for good or evil had in fact lasted for many hundreds of years, had
passed away like a dream, and the ecclesiastical unity of Europe was broken
apparently beyond remedy.”98
93
Quoted from ibid.
94
E.A. Ogg, English Government and Politics 68; Quoted from Ibid.
95
Ibid.
96
Francis Aidan Gasquet, England under the Old Religion and other Essays 1 (G. Bell and Sons
Ltd., London, 1912).
97
Ibid.
98
Ibid.
244
The United Kingdom is divided into three separate legal jurisdictions, England
and Wales, Scotland (which together with England and Wales, constitute Great
Britain), and Northern Ireland. When considering the place that religion has in society
it is normal to consider Northern Ireland separately from Great Britain because
“Northern Ireland-more like the Irish Republic than mainland Britain- manifests
markedly higher levels of religious practice than almost all other European
countries.”99
Ever since the English were a Nation, their religion has been that of the
Catholic Church of Christ. From the time of the Angles, Saxons, and Jutes become
Christians to the reformation from the sixth to Sixteenth century, all religious people
in England were members of the Church.100 Since the reformation other religious
bodies have sprung into existence, some of them differing slightly, some very
materially, from the Church, have attracted to themselves numbers of earnest and
devout people; and have exercised a corresponding influence, from time to time, upon
the Governments and policy of England. Still the majority of Englishmen have always
remained members of the Church, and consequently the history of Religion in
England is mainly the history of the Church of England.101
The Church was first planted in these inlands when Britain was a Roman
province, but it never seems to have really obtained any great hold over the people. 102
The Christians were mostly found among the Roman settlers, or of the Romanized
Celts-in-fact, among those who were either foreigners themselves, or closely
connected with foreigners. It is true that we hear of British martyrs, such as S. Alban
(304); of British heretics, such as Palagius (415); of British saints, such as S. Ninian
(401) and S. Patrick (440); of British monasteries and school of learning; of British
Churches at Glastonbury at Canterbury.103 But, in spite of all this, it seems probable
from the scanty remains which have come down to us that the Church in Britain was
less strong and less rich than the rival heathenism around it.104
99
Grace Davie, Religion in Britain Since 1945-Believing without belonging 14 (Basil Backwell,
Oxford, 1994).
100
Henry Offle Wakeman, The History of Religion in England 1 (Rivingtons Waterloo Place, London,
1885).
101
Ibid.
102
Ibid.
103
Id. at 2.
104
Ibid.
245
We tend to associate the arrival of Christianity in Britain with the mission of
Augustine in 597 A.D. But in fact Christianity arrived a long before then, and in the
1st century AD, there was not organized attempt to convert the British.105 It began
when Romans artisans and traders arriving in British spread the story of Jesus along
with stories of their Pagan duties. During the 4th century, British Christianity became
more visible but it had not yet won over the hearts and minds of the population. Pagan
beliefs still abounded and Christianity was a minority faith.106 It looked as if
Paganism might again get the better of Christianity when, after the departure of the
Romans, new invaders arrived. It could be argued that it was Augustine‟s famous
mission in 597 AD from the Pope in Rome to King Athelbert of Kent that really set
up the future course of Christianity and Kingship.107Augustine in the same year
received Episcopal orders at the hands of the vigilious, Archbishop of Arles, and in
the year following was made Metropolitan by Gregory, whose ardent mind had
already mapped out England and Scotland into the two provinces of Canterbury and
York, each of which was to be furnished with twelve suffrage Bishops. This
arrangement was never carried out, but before his death S. Augustine was enabled to
see an extension of the Church under his guidance, by the foundation the Seers of
London (601) and Rochester.108
The Church of England is the officially established Christian Church in

England; it is within the Western Christian tradition, dating its formal establishment
from the mission to England by Saint Augustine in AD 597, which brought it under
the authority of the Pope. The Church of England separated from the Roman Catholic
Church in 1534 and became the established Church by an Act of Parliament.109 Her
Majesty Queen Elizabeth II, the British Monarch, is the “Supreme Governor” of the
Church of England; she officially appoints archbishops, bishops and deems of
cathedrals on the advice of the Prime Minister. Two archbishops and 24 bishops sit in
the House of Lords and Contribute to Parliament‟s work. The Church in Wales
separated from the Church of England in 1920 and is now an autonomous Church in
the Anglican communion, an international association of Churches consisting of the
105
Ibid.
106
Ibid.
107
Ibid.
108
Id. at 3.
109
Amenda Van Eck Duymaer Van Twist, “Religion in England” 1, LSE Research Online. Available
at https://www.eprints.ise.ac.uk/62296/1/religion_in_england_pdf. Accessed on 21-09-2016.
246
Church of England (its mother Church) and of national and regional Aglican
Churches in full communion with it.110
There is no central register of religions in England, nor is there any official

body which could formally recognize a group or individual as a „religion‟: the British
Government does not distinguish between religious or non-religious organization and
requires both to follow any relevant laws of the country. There are, however, some
measure through which some religious organizations can gain a certain status of
advantage-these include registering as a religious charity, and being able to engage in
official matters with the Church of England (which recognized nine faiths it will
engage in interfaith discourse with).111
3.3.2 State-Church and Secularism
During the Middle Ages Church and State continued to be intertwined; they
were functionally and structurally united, in United Kingdom. It should, however, be
noted that with the collapse and disintegration of the Roman Empire, the Church
began to see itself as a universal power.112 Obviously, there was no longer any
question of the Union of Church and the State. What the Roman Catholic Church was
therefore attempting to establish was the union of the State in the Church. The classic
thirteenth century view of Thomas Aquinas succinctly describes the Church‟s
approach during the middle ages to the question of its relationship with the State:113
The highest aim of mankind is eternal happiness. To this chief aim of

mankind all earthly aims must be subordinator. This chief aim cannot
be realized through human direction alone but must obtain divine
assistance which is only to be obtained through the Church. Therefore
the State, through which earthly aims are obtained, must be
subordinated to the Church. Church and State are as to swords which
God has given to Christendom for protection; both of these, however,
are given by Him to the Pope and the temporal sword by him handed
to the rulers of the State.
110
Ibid.
111
These are Judaism, Christianity, Islam, Buddhism, Hinduism, Sikhism, Jainism, Bahia‟s and
Zoroastrians; Quoted from Ibid.
112
Dhirendra K. Srivastava, Religious Freedom in India- A Historical and Constitutional Study 82
(Deep & Deep Publication; New Delhi, 1983).
113
L. Pfeffer, Church, State and Freedom 13 (Beacon Press, Boston, 1967).
247
The inevitable result of the supremacy claimed by the Church was its conflict
with the rulers of States. In fact, the whole history of Europe is the story of a
continual struggle for supremacy between Crown and Pope and persecution of
heretics and non-conformists.114 The history of the Church of England as State
Church dates back to 1534, when the Pope refused to dissolve the marriage between
the English King Henry VIII and Catherine of Aragon. This caused Henry VIII to
wrest himself free from the ecclesiastical hierarchy of Rome. He let himself to
pronounced supreme head of the Church of England. In a dogmatic sense, the breach
with Rome was a lot less radical, because the process of transition to Protestantism
would take considerable time.115
In the seventeenth century, Parliament took over the ecclesiastical role of the
Monarch, but the nature of pact between Church and State would not undergo any
essential changes, despite an unremitting flood of pamphlets and treatise from more or
less famous defenders of religious liberty and the separation of Church and State. One
pioneer was Thomas Helwys (ca. 1575 ca. 1616), a Baptist who fled to Amsterdam,
where he wrote a short Declaration on the Mystery of Iniquity, supposedly the first
English work advocating freedom of religion.116 Unlike John Locke (1632-1704), who
gained much more fame and in his letter concerning Toleration (1689) did not grant
Catholics and atheists any freedom of conscience, Helwys was much more radical in
his defense of religious tolerance.117 For our Lord the King is but an earthly King, and
he has no authority as a King but is earthly cause. And if the King‟s people be
obedient and true subjects, obeying all human laws made by the King, our lord the
King can require no more. For Men‟s religion to God is between God and themselves.
The King shall not answer for it. Neither many the King is judge between God and
man. Let them be heretics, Turks, Jews, or whatsoever, it appertains not to the earthly
power to punish them it the least measure.118
114
115
Mark Van de Velde, “The Separation of Church and State in Great Britain and Ireland” in Fleur de
Beaufort and Patrick Van Schie (eds.), Separation of Church and State in Europe-with views on
Sweden, Norway, United Kingdom & Ireland, The Netherlands, France, Portugal, Italy and
Slovenia 54 (European Liberal Forum, 2012).
116
Ibid.
117
Ibid.
118
Thomas Helwys, A Short Declaration of The Mystery of Iniquity (1611/1612) Edited and
introduced by Richard Groves, Macon (GA), 1998, p. 53; Quoted from Ibid.
248
An important step on the way to religious freedom was the adoption of the Act
of Toleration in England (1689). This was the first time religious groups were
acknowledged beside the national Church and initially these were exclusively
protestant groups such as Baptists, Quakers and Presbyterians, often referred to as
Dissenters or Nonconformists they were granted the right to practice their beliefs,
contrary to the Catholics, who had to wait until 1791 before they were allowed to do
so. However, Dissenters and catholic up until 1828 remained limited in their freedom
to participate in public life, because a series of seventeenth century, laws - the English
test and corporation Acts-designed to exclude protestants dissidents and Catholics
from public service, remained in force.119
Viewed from the present, laws perpetuating religious intolerance are hard to
accept, but in the eyes of contemporaries, England was a beacon of tolerance. Around
1733, the philosopher Voltaire who lived in England for a couple of years, wrote:120
Though the Episcopal and Presbyterian sects are the two prevailing
ones in Great Britain, yet all others are very welcome to come and
settle in it, and live very sociably together, though most of their
preaches hate one another almost as cordially as a Jansenist damns a
Jesuit…..If one religion only were allowed in England, the
Government would very possibly become arbitrary; if there were but
two, the people would cut one another‟s throats; but as there are such a
multitude, they all live happy and in peace.
The paradox of the United Kingdom is that the Protestant and Catholics have
opposite opinions regarding the relationship between Church and State compared to
their fellow believers of continental Europe. The Catholics in Southern Europe
applied the same fervor in their defence of the need for a national (Catholic) Church
as the Anglicans did on the British Isles. British and Irish Catholics on the other hand,
insisted on political, religious and civil equality-liberal themes that met with little
mercy from most Catholics on the continent.121 This may partly be explained by the
119
Richard Popkin and Mark Goldie ,“Skepticism, Priest craft, and Toleration” in Mark Goldie and
Robert Workler (eds.); The Cambridge History of Eighteenth-Century Political Thought 94
(Cambridge University Press, New York, 2006).
120
Voltaire, Letters on England 32 (Rockviller, 2008); Quoted from see Supra note 115 at 55.
121
Keith Robbins, “Church Establishment, Disestablishment and Democracy in the United Kingdom
of Great Britain and Ireland, 1870-1920” in Keith Robbins (ed.), Political and Legal Perspective:
249
fact that the British Protestants were not convinced of the liberal disposition of their
Catholic compatriots. They secretly suspected that equal treatment would be abused
by the Catholics in the long run. It is typical that while “many continental liberals
marveled at the apparent liberalism of Catholic Ireland…Most English statesmen
feared Irish Catholicism as an illiberal, backward and intolerant creed.”122
It is therefore ironic that is was precisely with the help of an English liberal
who had dedicated himself to the Irish cause, William Gladstone, that the Anglican
Church managed to maintain its exceptional constitutional position. The
disestablishment of the Church of Ireland was resolved during the first liberal
Government of Gladstone (1868-1874).123 Added to earlier granting of religious
minorities, this strengthened many non-conformists in their belief that the formal
separation of (Anglican) Church and State was forthcoming. “Yesterday we asked for
toleration, today we ask for religious equality; tomorrow we shall demand the
disestablishment of the Church of England”, was an optimistic remark heard on a
meeting of non-conformists.124
Since 1920, the Church of England has been established only in England itself.
A series of internal reports considered the advantages for the Church of moving to a
looser Scottish establishment, but there has been no change until recently. A
significant reason is that the lords spiritual have no interest in surrendering their seat
in the legislature, and the State has had no interest in throwing them out. Recent
developments have, however, distributed this equilibrium.125
In England the established Church is Erastian, with the Monarch as its

Supreme Governor. The Monarch retains the right to make senior appointments (now
delegated to the Monarch‟s advisors, i.e. the U.K. Governments of the day), and
The Dynamics of Religious Reform in Northern Europe, (1780-1920) 69-92 (Leuven University
Press, Belgium, 2010).
122
David Hampton, Religion and Political Culture in Britain and Ireland from the Glorious
Revolution to the Decline of Empire 83 (Cambridge University Press, Cambridge, 1996).
123
Noel J. Richards, “Disestablishment of The Anglican Church in England in the late Nineteenth
century: Reason for failure”, Journal of Church and State 12 (1970).
124
Ibid.
125
Iain McLean, “Secularity and Secularism in the United Kingdom: on the way to the First
Amendment”, Vol. 2011, Issue 3, BYU Law Review 637 (2011).
250
Parliament retains the right to govern its doctrine, although that right is normally
delegated to internal Church bodies.126
The United Kingdom has been a signatory to the European convention on

Human Rights since shortly after it was drafted in 1950, which was done mostly by
British, lawyers and in response to Nazi atrocities in World War II.127 The convention
protects classical negative human rights such as those protected in the United States
Bill of Rights. These include freedom of speech, assembly, religion, privacy, and
freedom from discrimination. Several rights in the European convention on Human
Rights (ECHR), including the freedom to manifest one‟s religion or beliefs, are
qualified: “subject only to such limitations as are prescribed by law and are necessary
in a democratic society.”128 Through the Human Rights Act, 1998, convention rights
were incorporated in British Law and now must be considered, when relevant, by
United Kingdom courts.129 The 1998 Act, like United States, Bill of Right often
protects unpopular and stigmatized minorities.130 Until the 2010 General Election, it
was conservative party policy to repeal it. However, the current coalition Government
has dropped that purpose. The Human Rights Act has also wrought a change in
judicial culture; judges are more willing than previously to challenge executive and
legislative acts on human rights grounds. This way predicted immediately upon the
passage of the Act.131
The labor Government in 2009-10 amalgamated various pieces of

antidiscrimination law into an Equality Act. This Act creates a single body to oversee
the law prohibiting discrimination on grounds of gender, ethnicity, sexual orientation,
disability, religion, age and caste. The Act is undertaken in part to ensure that the
United Kingdom complied with Article 14 of the European convention. The Equality
126
Colin Turpin and Adam Tomkins, British Government and the Constitution 195-196 (Cambridge
University Press, New York, 6th ed. 2007).
127
Iain McLean, What’s Wrong with British Constitution? 201-202 (Oxford University Press, 2010).
128
Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights); opened for signature Nov. 11, 1950 CETS No. 005, 213
U.N.T.S. 222 Art. IX; Quoted from see Supra Note 125 at 650.
129
Section 13, The Human Rights Act, 1998, “Freedom of thought, Conscience, and Religion- (1) if
the court‟s determination of any question arising this act might affect the exercise by a religious
organization (itself or its members collectively) of the convention right to freedom of thought,
conscience and religion, it must have particular regard to the importance of that right. (2) In this
section “court” includes a tribunal.
130
See Supra note 127 at 210.
131
K.D. Ewing, “The Human Rights Act and Parliamentary Democracy”, Vol. 62, Issue 1, The
Modern Law Review 79 (January 1999).
251
Act, 2010 prohibits direct discrimination, indirect discrimination, harassment and
victimization in relation to certain areas such as goods and services, employment and
education.132 Arguments about the proper boundary of such restrictions have given
rise to contemporary claims that the United Kingdom is aggressively secularist and
similar phrases.133
3.4 Law and Religion in France
3.4.1 Nature of the Constitution of France
France has been described as a laboratory of political experiments. In the field

of the Constitution-making, the French hold a world record. Since the French
Revolution, 1789, France has had no less than twelve regimes and thirteen
Constitutions.134 The political changes cover extremes in time ranging from the
twenty-one days of the Act Additional of 1815 to the sixty-five years of the Third
Republic,135 and extremes in content ranging from complete changes of regime to
simple modifications carried out by the normal processes of constitutional revision. If
Britain and the United States of America the political arrangements have persisted,
slowly evolving, over a long period of time, in France, on the other hand, “the
pendulum has swung from Government of assemble to a highly personalize regime in
a comparatively short span.”136 In view of its unique historical features, the
Government of France makes an interesting study.
De Gaulle (Fifth Republic, 1958) had assumed office on the specific condition
that he would be given a free hand for at least a period of six months.137 He formed a
national Cabinet in which were included a large number of prominent men of France.
He was also able to pacify the rebels in Algeria.138 He was assigned Michel Debre, his
most devoted and outspoken supporter, the principal responsibility for the drafting of
the new Constitution. Assigned team experts, Debre prepared the draft of Constitution
132
Alice Donald, Karan Bennett and Philip Leach, Harassment on grounds of religion or belief is only
prohibited in relation to employment. Quoted from Equality and Human Rights Commission
Research Report 84, “Religion or belief equality and Human Rights in England and Wales” 45
(Equality and Human Rights Commission 2012).
133
134
135
Ibid.
136
S.E. Finer, Comparative Government 281 (Penguin Books, London, 1974).
137
138
Ibid.
252
on August 27, 1958, presented into the French council of State, a group of high civil
servants advisory to the Government on legal and constitutional matters, for its
opinion. On September 4, 1958, General de Gaulle presented the French people, draft
of the constitution that had been prepared under his authority. He delivered a
momentous speech to a huge crowed at the place de la Republic in Paris which
opened the campaign preceding the referendum of September 28, 1958.139 There were
wide comments on the Constitution. The press and periodicals in France were full of
discussions; political parties elaborated its weaknesses while political scientists
analyzed its features. Though a vast section of the opinion was unfavorable, yet the
Constitution was approved by a majority of nearly 80%. 140 It has been said that the
referendum of September 28, 1958 was not a vote for a Constitution, but a vote for
General de Gaulle.141 The Constitution came into force on October 7, 1958. General
de Gaulle was elected first President of the fifth Republic in December, 1958 and
Debre, the author of the Constitution, became the Premier.
The preamble of the Constitution recalls the Declaration of the rights of man
and of the citizen from 1789. Preamble of the Constitution of France, 1958, reads:
The French people solemnly proclaim their attachment to the rights of

man and the principles of national sovereignty as defined by the
Declaration of 1789, confirmed and complemented by the Preamble to
the Constitution of 1946, and to the rights and duties as defined in the
charter for the Environment of 2004. By virtue of these principles and
that of the self-determination of peoples, the Republic offers to the
overseas territories which have expressed the will to adhere to them
new institutions founded on the common ideal of liberty, equality and
fraternity and conceived for the purpose of their democratic
development.
Further Article 1 reads:
France shall be an indivisible, secular, democratic and social republic.

It shall ensure the equality of all citizens before the law, without
139
Ibid.
140
Ibid.
141
Dorothy Pickles, “The Constitution of the Fifth French Republic”, Vol. 22, No. 1, The Modern
Law Review 6-7 (January 1959).
253
distinction of origin, race or religion. It shall respect all beliefs. It shall
be organized on a decentralized basis. Statutes shall promote equal
access by women and men to elective offices and posts as well as to
position of professional and social responsibility.
Development of the Constitution in France, led to a clear conception of the

secular State through separation of Church and State.
3.4.2 Law, State and Religion in France
For most of the past thousand years, France has been one of the principal
“Catholic” countries of Europe. From the time of Charlemagne until the emergence of
Protestantism in the Sixteenth century, France was one of the main powers in a
continent where Catholicism was - except in Orthodox areas - the only mainstream
from the Christianity. After that, most of France, and particularly the French
Monarchy, maintained the Catholic faith while many other parts of Europe, including
England, Switzerland, the Low Countries and much of Germany and Scandinavia
adopted differing forms of Protestantism.142
In 1789 the representatives of the French people, constituted as a National

Assembly, considering that ignorance, neglect or contempt for the rights of Man are
the sole causes of public misfortunes and the corruption of Governments, have
resolved to set forth in a solemn declaration the natural, inalienable and sacred rights
of man, so that this declaration may serve as a constant reminder to all members of
society of their rights and duties; so that the acts of the legislative power and of the
executive power being liable at any time to be compared with the purpose of all
political institutions, may thereby be the more respected. The National Assembly
therefore recognizes and declares, in the presence and under the auspices of the
Supreme Being declaration of the rights of man and citizen, 1789. This declaration
ensured individual freedom and liberty and is considered as the first document of
religious liberty and secularism in France. The current French Constitution of 1958
incorporates by reference the 1789 Declaration of the rights of Man and citizen, in the
preamble of the Constitution.
142
Available at https://www.abot-france.com/religion.html; accessed on 26-09-2016.
254
The Catholic Church had been the ancient regime‟s (old regime) most
important ideological and institutional support. Tithes, and ecclesiastical corruption,
had made it deeply unpopular by the time of the Revolution, at least in the less devout
parts of France.143 It is thus not surprising that the Revolution called into question not
only the Church‟s privileges, but its very existence. In the most extreme, Jacobin,
phase of the Revolution, Church property was confiscated, abbeys turned into prisons
or arsenals.144 Christian services replaced by festivals of the Supreme Being, and the
Christian calendar abolished. The biggest domestic military challenge to the first
Republic, the rebellion in the Catholic Vendee area, was put down with extreme
savagery.145 These events left a legacy of enmity between Catholics and the Republic
that was to last well into the twentieth century. Le Clericalisme, Voila I‟ ennemi
declaimed the Republican politician Leon Gambetta, at the outset of his final
confrontation with president MacMahon in 1877 - his argument reinforced by Pope
Pius IX‟s excathedra condemnation of all forms of republicanism and liberalism as
incompatible with the Christian faith. Anti-clericalism (a hostility towards the Church
as an institution, though not necessarily to Christianity itself) became as much as
badge of the left as republicanism. The form it took might be instrumental (believing
in a secular society) or picturesquely expressive (public orgies of sausage - eating on
Fridays).146
The development of ideas which ultimately found expression in the passing of

the law of December 9, 1905 providing for the separation of Church and State, is the
outgrowth of a sentiment of hostility if not against religion at least against the Roman
Church.147 Article 2 is one of the most quoted provisions of the 1905 law: “The
republic does not recognize, finance, or subsidize any religious group.” 148 Although
143
Andrew Knapp and Vincent Wright, The Government and Politics in France 4 (Rutledge, Taylors,
& Francis Group, London and New York, 2006).
144
Id. at 5.
145
Ibid.
146
Ibid.
147
Maurice Goguel, “The Religious Situation in France” Vol. 1, Number 6, The Journal of Religion
562 (November, 1921), available at https://www.archive.org/details/jstor-1195572; accessed on
16-09-2016.
148
Law on the Separation of Churches and State of Dec. 9, 1905, Journal Official de la Republique
Francaise [J.O.] [Official Gazette of France], Dec. 11, 1905, p. 7205, Art.2 [“La Republique ne
reconnait, ne salarie ni ne subventionne aucumculte”]; Quoted from T. Jeremy Gunn, “Religion
and Law in France: Secularism, Separation, A State Intervention”, Vol. 57, Drake Law Review 955
(2009), available at https://www.lawreviewdrake.files.wordpress.com/2015/06/irvo157-4-
gunn.pdf; accessed on 17-09-2016.
255
the 1905 law does not use the phrases, religious freedom or separation of Church and
State, it is often cited to illustrate two manifestations of the concept of “separation”.
First, the State does not recognize any religion; and second, the State does not provide
financial support to religious groups.149 While Article 2 was designed in particular to
clarify and settle the State‟s future relationship with the Roman Catholic Church-
which during many periods of French history was the “recognized” Church in France
and the recipient of beneficial financial treatment.150 The language is expressed in
neutral terms and applies to any religious organization.151
The famous medieval, Cathedrals of Paris, Rheims charters, Amiens, and

Toulouse, as well as hundreds of other Cathedrals, Churches, Abbeys, and
Monasteries that were seized by the French State at various times since the revolution
of 1789, are now State property.152
While the Roman Catholic Church is permitted to use the buildings that it built
over hundreds of year, the State allows this only at its discretion.153 At the same time,
the State pays for repairs and restoration of Churches, either in conjunction with or
independent of contributions made by religious groups, tourists, and others.154
Although such subsidies might have been thought to up keep is explicitly provided in
Article 19 of the 1905 law and is unchallenged before French courts.155
In the region of eastern France known as Alsace - Moselle, the French State
finances catholic and protestant religious education in public school.156 The historical
explanation for this seeming anomaly is that when the 1905 law was adopted, Alsace-
Prussian war of 1870-1871.157
When the region was reunited with France following World War I, an
agreement was reached not to apply the law that had been adopted while the region
149
T. Jeremy Gunn; Ibid.
150
W. Scott Haine, The History of France 91 (Greenwood Publishing Group, 2000).
151
152
153
154
Law on the Separation of Churches and State of Dec. 9, 1905, Article 19; Ibid.
155
Ibid.
156
Stating religion lesions are mandatory in Public school in Alsace-Moselle region but that parents
may choose between Catholic, Protestant, Jewish, or ethics lesions; Quoted in Baskin Oran, The
Minority Report Affairs in Trukey 5 (Regent J. Int‟ l L. I, 38-39 (2007) see also Supra note 134 at
957.
157
Alain Garay et al, “The Permissible scope of Legal limitations on the Freedom of Religion or
Belief in France”, 19, Emory Int.’ I.L. 785, 794 (2005); see also Supra note 148 at 957.
256
was under German control.158 Thus, the laws allowing direct State support for religion
in Alsace - Moselle resemble the “German Model” under which State funds may be
used to support religious activities. Putting aside the question of whether the French
or the German model is more appropriate for Alsace - Moselle, the region was part of
France when The Republic‟s 1958 Constitution declared the country to be “secular”
and indivisible.159 Andrew Knapp and Vincent Wright clarify that:160
Church-State reactions turned essentially on the issue of public

subsidies to Catholic schools, on apparently limited policy question
which nevertheless aroused fierce passions on both sides for half
century. The Debre Law of 1959 settled the principle of subsidy, and
its main mechanisms. It did not prevent the issues of the volume of
subsidies, and the degree of State control that should go with them,
from mobilizing impressive street demonstrations by the partisans of
both secularism and of Catholic education as late as 1994. Indeed both
survey data and electoral geography show that practicing Catholics
still vote on the (moderate) Rights by a proportion of three or four to
one-a much better correlation than that offered by class, the other
major sociological variable.
3.4.3 Laicite or Secularism in France
Today, while Catholicism has far more adapts than any other religion or
religious denomination in France, the time when the vast majority of Frenchmen
considered themselves to be Catholics is now long gone. Slightly less than half of the
French population now call themselves to be Catholics. At Ipsos/ Mori Poll in 2011
showed than 45% of French people claim to be Christians-most of them Catholics-
while 35% claimed to have no religion, and just 3% proclaimed themselves as
Muslims.161
The Christians of France, especially, may be divided into four distinct classes.
The first includes the routine devotees, who have no peculiar merit, and whose
religion often borders on idolatry or fetishism. The second embraces a different class
158
Ibid.
159
Article 1, The Constitution of France, 1958.
160
161
Available at http://www.about-france.com/religion.html. Accessed on 26-09-2016.
257
of believers, the devotees by habit, a more enlightened type, who accept their religion
with simplicity and honesty and among whom the religious sentiment gives evidence
of the higher aspirations of the human soul. To the third belong believers of the
intellectual stripe, who reason out their faith or receive it from some inward light,
combative or mutative, according as the trend of their mind leads them towards
theology, or mysticism. The fourth embraces those who doubt, who have tired of
compromising with themselves and their beliefs, and are on the point of separation.
With these decomposition of faith begins and gradually continues to that final stage
where a new doctrine takes the place of the ancient faith.162
It is out of the question to present an even approximately complete picture of

the religious situation in France at the present moment. The complexity of the
situation is due in part to the fact that during the last quarter of a century or less,
religious development has been influenced either successively or sometimes
simultaneously by several causes any one of which alone would have been sufficient
to exercise a profound influence on the religious situation. The two most important of
these are the separation between Church and State and the war.163
The Catholic faith functioned as the official religion of France for a long time,
until the Revolution of 1789 caused a schism. During the Revolution the freedom of
religion was laid down in The Declaration of the Rights of Man and the citizen, 1789
(La Declaration des droits de I’home et du citoyen), although le concordate164
conclude by Napoleon and the Catholic Church in 1801 acknowledged that „the
Catholic faith is the faith of the majority of the French population‟, it assumed at the
same time a certain religious pluralism and a separation of civil regulations and
religious prescription (for example the notion of civil State).165 The Restoration did
162
Lucien Arreat, “Religion in France” Vol. 13, The Monist 239-240 (January 1, 1903); available at
http://www.archive.org/details/jstor-27899392. Accessed on 13-07-2016.
163
164
A concordat is convention between the Holy See and a sovereign State that defines the relationship
between the Catholic Church and the State in matters that concern both, i.e., The recognition and
privileges of the Catholic Church in a particular country and with secular matters that impact on
Church interest; Quoted from Rene Metz, What is Canon Law? 137 (Hawthorn Books, New York,
1st Ed; 1960).
165
Esther Janseen, „Limits to Expression on Religion in France‟, Vol. V., Agma & Religiusitas de
Eropa, Journal of European Studies 25 (2009) available at
https://www.ivir.ni/publicaties/download/limits_to_expression_on_religion_in_France.pdf.
258
not reinstate the Catholic faith as the official religion 166 during the course of the
nineteenth century, the battle between the Church and the State focused in particular
on education. La Loi de Jules Ferry of 28 March 1882 introduced obligatory free
public education. Following this „laicisation‟ (secularization) of education other
social institutions, such as hospitals, were soon „laicised‟ (secularized).167
The world lacite is used in France to summarize prevailing beliefs regarding

the proper relationship between religion and the French State.168Lacicite or secularism
has been enshrined in French law and political praxis since 1905. However, it should
not be assumed that in the French context secularism and Church-State separation are
synonymous; because the Conseild’ Etat169 determines which entities are to have the
authorities is the norm rather than the exception. In taking upon itself the role of
neutral arbiter in relation to religious practices and institutions, the French State has
made itself a permanent presence in religious affairs in the same way that a referee is
an essential element of sporting matches.170
Reference to laicite has been steeply on the rise in public discourse over the
last twenty years in France, to the point of directly or indirectly becoming part and
parcel of media-speak on a daily basis in newspapers, on radio and television. During
this period it has become self-evident that State-monitored secularism is no longer the
bone of contention it once was, violently splitting opinion along „for or against‟ fault
lines, but has progressively morphed into a socio-cognitive frame of reference, a sort
of screen wallpaper for France‟s social panorama, endorsed as such by all social
groups, even when the latter may be at logger leads on other issues.171
166
Ibid.
167
Ibid.
168
Laicite, which is often translated into English as “Secular”, is a term that is difficult to define and
almost impossible to translate. “There is no firm definition of laicite, neither officially established
nor generally accepted”, Emile Poulat, Notre Laicite Publique 116 (2003); Quoted from T. Jeremy
Gunn, “Religious Freedom and Laicite: A Comparison of the United States and France”, Vol.
2004, Issue 2, BYU Law Review 420 (2004); available at
http://www.digitalcommons.byu.edu/cgi/viewcontent.cgi?article=2192&context=lawreivew.
Accessed on 16-08-2016. Legrand Robert dictionary defines laicite as a “Political notion involving
the separation of civil society and religious society, the State exercising no religious power and the
Churches (Englisesses) exercising no power”, Paul Robert, 5 Le Grand Robert De La Language
Francaize 915 (2nd ed. 1992); Quoted from Ibid.
169
Conseil d‟Etat is a body of The French National Government that acts both as legal advisors of the
executive branch and as the Supreme Court for administrative justice.
170
Raphael Liogier, “Laicite on The Edge in France: Between The Theory of Church-State Separation
and the Praxis of State-Church Confusion”, Vol. 9, Macquarie Law Journal 25 (2009).
171
Id. at 26.
259
The parallels between France and the United States go beyond the intertwined
and contemporaneous drafting of the two fundamental documents in 1789 from a
comparative law perspective; the United States and France are generally considered to
have “Secular” Constitutions that “separate Church and State”. This places France and
the United States in a category quite different from States that officially encourage
“cooperation” between religions and the State-such as Germany and Spain-or
countries that have single official or established religions.172
However precise or vague the term secular and separationist might be their use
is less controversial in France than in the United States. Although the terms separation
of Church and State and secularism have been a part of the discourse in the United
States since at least the eighteenth century, they have become somewhat controversial
since the 1970s.173
In France, however, both are widely accepted and have a formal textual basis
in French Law that is absent in American Law. The first term, Laic, which is
generally, but imperfectly, translated as “secular”, appears in Article 2 of The French
Constitution of 1958:
France is an indivisible, secular (laic), democratic, and social republic.

It ensures the equality before the law of all of its citizens, without
distinction as to origin, race, or religion. It respects all beliefs.
The second term, separation, is in the title of the 1905 “law on the separation
of Churches and the State” (The 1905 law). The 1905 law is not merely statute; it is
also something of a cultural icon in France, the importance of which, both legally and
in the popular imagination, approaches that of the Constitution itself.174 Indeed, in
some ways, the 1905 law is more fundamental than the Constitution of 1958, as it has
outlasted the Constitutions of 1940, 1945, and 1946 and it was in effect for more than
fifty years before the current Constitution was drafted. With regard to matters
involving religion, the prestige and importance of the 1905 law in France compares to
that of the first amendment‟s religion clauses in the Bill of Rights. Although the
172
T. Jeremy Gunn, “Religion and Law in France: Secularism, Separation, and State Intervention”,
Vol. 57, Darke Law Review 951-952 (2009).
173
T. Jeremy Gunn, “Religious Freedom and Laicite: A Comparison of the United States and France”,
Vol. 2, BYU Law Review 419 (2004).
174
Id. at 420-421.
260
phrase separation of Church and State does not appear in the text of the 1905 law, the
title itself is of sufficient importance legally and rhetorically to institute the term
separation as a defining term in the French legal system, characterizing the
relationship between religion and the State.175
There are some instances which might reasonably be thought as being in

conflict with secularism and separation of Church and State. In 1920-fifteen years
after enacting the law separating Church and State and prohibiting State subsidies for
religious entities-the French Parliament voted to spend 5,00,000 Frances for the
construction of the Grand Mosque in Paris, the land for which had been donated by
the city of Paris.176 In addition, the French State, acting on a case-by-case basis,
subsidizes private religious schools, the majority of which are Roman Catholic.177
Although French public schools are prohibited from teaching sectarian religion
courses-Alsace-Moselle being the continuing exception-and although since 2004
public school students are prohibited from wearing “conspicuous” religious symbols
or attire,178 members of the clergy, wearing clerical robes, are authorized to go on the
public schools property and provide religious counseling to students who wish to
receive it.179 The secular French State observes several holidays that come directly
from the Roman Catholic calendar: Eastern Sunday and Monday, the ascension,
Pentecost Sunday and Monday, the Assumption, all Saints‟ Day, and Christmas.180
In 2004, the French Parliament- with the full support of President Jacques
Chirac, Prime Minister Pierre Raffarin, and then-Interior Minister Nicolas Sarkozy-
overwhelming voted to adopt a popular new law that prohibited French students from
wearing “conspicuous” religious clothing or symbols inside public schools, including
the Islamic headscarf, the Jewish Yarmulke, the Sikh turban, and the Christian cross
(the Headscarf law).181 Although the highest French administrative court, the council
175
176
Id. at 959.
177
Eugenia FroedgeToma, Public Funding and Private Schooling Across Countries, Vol. 39, Journal
of Law and Economics 121-127 (1996) available at
https://www.journals.unchicago.edu/doi/pdfplus/10.1086/467345. Accessed on 17-08-2016.
178
Supra 172 at 959.
179
Ibid.
180
Steve Fallon and Annabel Hart, Paris 377 (6th ed., 2006) Quoted from id at 960.
181
Law. No. 2004-228 of Mar. 15, 2004, Journal Official de la Republique Francaise [J.O.] [Official
Gazette of France], Mar. 17, 2004, p. 5190. The Law was overwhelmingly approved by a vote of
494 to 36 in the National Assembly, by a comparably disproportionate vote of 276 to 20 in the
Senate, and strongly supported by popular opinion throughout France; Elisa T. Beller, “The
261
of State, had ruled more than forty times that Muslim school-girls right to wear the
headscarf was consistent with the French Constitution, the doctrine of laicite, and
International law, the Headscarf law superseded the administrative court‟s prior
ruling.182 Designed to promote secularism, the Headscarf law had the curious
consequence of promoting many Muslim school girls to transfer to Government-
subsidized Roman Catholic schools that permitted the girls to wear the headscarf.183
The right base discourse seems to be a quite interesting mean of contesting

nationally and internationally the boundaries of State secularism in France. It is a
powerful and most importantly „Legitimate‟ discourse as it is considered to be
modern, a product of the enlightenment and of the secular rational State. In France, as
we have seen the use of this discourse and legal producers at the national level has
been quite successful. This is, in part so, because France has well developed anti-
discrimination legislations, and because of Conseil d’Etat in its jurisprudence has had
quite an open and liberal interpretation of laicite.184
3.5 Religious Freedom in Australia
3.5.1 A Sketch of Australian Constitutional History
Australia has a parliamentary democracy on the British model, with all the
traditional freedoms and responsibilities which that system imposes on its citizens.
The formation of the Governmental institutions known to a Nation-State began when
the continent was first occupied by Captain Arthur Phillip under commission from the
British Government, who brought a party of 1,030 soldiers, sailors and convicts to
eastern Australia on January 26, 1788.185 From then until about 1815, the colony
remained in substance an open – air person, and the Government an autocracy of
Governors who were naval or military officers. As the number of the free-settlers
increased, a movement towards representative and responsible Government started.
Headscarf Affair: The Conseil d’Etat on the Role of Religion and Culture in French Society”.
Available at https://www.tilj.org/content/journal/39/num4/Beller581.pdf. Accessed on 18-08-2016.
182
Ibid.
183
184
Amelie Barras, Using Rights to Re-invent Secularism in France and Turkey, EUI working paper
RSCAS 2008/20; available at
https://www.cadmus.eui.eu/bitstream/handle/1814/8870/RSCAS_2008_20.pdf;jsessionid=94BF49
6CE097AC6518006F4FB215A196?sequence=1. Accessed on 18-09-2016.
185
262
This Movement had two components; getting rid of the rule from London, and
extending the basis of political authority in Australia.186
The Australian story effectively divides into seven overlapping historical

periods.187 1787 to 1820s to 1850s the establishment of colonies additional to New
South Wales and Van Diemen‟s Land, and the emergence of part-elected legislative
councils in a number of them; 1850s to 1890s the gaining of what was called
„responsible‟ Government, but effectively meant a wide-ranging self-Government, in
all colonies, that was still subject to some British oversight; 1890s the federation
period, when the national Constitution was written by the politicians and ratified by
the people; 1901 to the 1930s the development of the new commonwealth and the
gradual staking-out of a separate international presence, culminating in the statute of
Westminster in 1931; 1930s to 1980s effective independence from UK, achieved by
the post war period, eventually culminating in the Australia Acts of 1986; 1990s to
date-unfulfilled push to create a republic, replacing the British Monarch with an
Australian as Head of the State.
Before 1901 Australia did not exist as a nation. It was a collection of six
British colonies which were partly self-governing but under the law-making power of
the British Parliament. During 1890s representatives of the colonies came together at
special meetings called Constitutional conventions to draft a Constitution which
would unite the colonies as one Nation to provide for a new level of National
Government. Each Australian colony sent delegates to the conventions. By 1898 they
had formed and agreed on a draft Constitution which was taken back to their
respective colonial parliaments to be approved. The final draft of the Constitution was
approved by a vote of the people in referendums held in each colony between June
1899 and July 1900.188
The Constitution had to be agreed by the British Parliament before the

colonies could federate (Unite as a nation). An Australian delegation travelled to
London to present the Constitution, which was part of the commonwealth of Australia
186
Ibid.
187
Scott Bennett, “Australia‟s Constitutional Milestones”; available at
http://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/public
ations_Archive/online/milestones. Accessed on 18-08-16.
188
Available at https://www.peo.gov.au/learning/closer-look/the-australian-constituion/how-australia-
formed-its-constitutio.html. Accessed on 18-08-16.
263
Constitution Bill, to the British Parliament. After negotiating some changing, the
British Parliament passed the Bill in July 1900. Among these changes was the right to
appeal decisions of the state Supreme Courts and the federal High Court in Britain‟s
Privy Council (final law court of appeal for commonwealth countries).189 Queen
Victoria approved the bill on 9 July 1900 by signing the Royal commission of Assent
and the bill became the common wealth of Australia Constitution Act 1900. Section 9
of this Act contained the Constitution which stated that on and after 1 January 1901,
the colonies of New South Wales, Victoria, South Australia, Queens-land and
Tasmania would be united and known as the common wealth of Australia. The
Constitution Act made provision for Western Australia to join the commonwealth.
Western Australia agreed to federate in a referendum held on 31 July 1900, two
weeks after the Act was passed.190
After federation in 1901 Australia still had constitutional ties with Britain,
particularly in matters of foreign policy and defence. Since then the British and
Australian parliaments have passed a number of statues which have progressively
given the common-wealth greater constitutional independence. For examples in 1942
federal Parliament passed the statue of West Minister Adoption Act 1942 which
meant Australian laws could no longer be over-ruled by an Act of British Parliament.
In 1968 and 1975 federal parliament passed Acts that limited and then ended appeals
from the High Court to the Privy Council. The Australia Act, 1986 removed all
remaining legal links between the Australian and British Governments.
3.5.2 The Constitution of Australia and Religious Freedom
Australia has always been a spiritual place, as reflected in its unique and
continually changing religious profile. This began with the Aboriginal and Torres
Strait Islander peoples (the indigenous people of Australia) who, over time, explored,
named and dwelt across the continent. They forged their sense of belonging to and
reverence of the land and its waters in harmony with the spirit-filled environment.
Their spiritual knowledge still holds secrets unknown to mainstream Australia.191
189
Ibid.
190
Ibid.
191
“Freedom of Religion and Belief in 21st Century Australia” 4. (Human Rights Commission, 2011);
available at https://www.humanrights.gov.au/sites/default/files/content/frb/Report_2011.pdf;
264
The arrival of the First Fleet in 1788 marked the beginning of radical change
to Australia. Those who developed and implemented the penal colonies as well as
those transported were mostly influenced by Christianity and the secularist
Enlightenment, and these two major traditions have maintained a strong presence.
Another foundational tradition is the pre-existing Aboriginal spiritualties, which have
remained part of the Australian religious landscape even if marginalized, and in
earlier times dismissed. Jews also arrived with the first fleet, and have continued to be
a part of and a presence in Australia.192
With the exception of manning Clark who developed his view of Australian
history somewhat narrowly around the twin poles of the Enlightenment and
Catholicism, religion has not been a central feature in Australian historical
accounts.193 The Anglican historian, Bruce Kaye, comments that “Australian
historiography has been assiduous in ignoring religion and Anglicanism in particular,
as a recurrent factor in Australian life.”194
For more than 40,000 years prior to European settlement, Indigenous

Australians followed belief system which were embedded in complex oral traditions
and based on the forces of nature, ancestral influence and reverence for the land.
Integral to indigenous belief systems were creation stories, notably Aborigines stories
of the “Dreamtime”, which combined knowledge, customary law and beliefs about
the origin of the land and its people. A belief in the interconnectedness of spiritual,
human and natural and natural phenomena continues of permeate indigenous
mythology, ceremonial life and artistic traditions. The first known contacts between
indigenous people and outsiders with different belief system reach back to the
sixteenth century, when Muslim fishermen and traders from the east Indonesian
archipelago visited main land Australia.195
192
Ibid.
193
Desmond Cahill, Gary Bouma, Hass Dellal and Michall Leahy, Religion, Cultural Diversity and
Safeguarding Australia 23 (Commonwealth of Australia, 2004); available at
http://www.amf.net.au/library/uploads/files/religion_cultural_diversity_main_reports.pdf;
Accessed on 19-08-2016
194
Ibid.
195
“Religion in Australia”, The Australian Collaboration-The Collaboration of National Community
Organization, available at http://www.australiancollaboration.com.au/pdf/factsheets/Religion-
factsheet.pdf. accessed on 19-8-16.
265
European settlement in Australia brought with it chaplains of the Church of
England (now the Anglican Church) other Christian Churches arrived as
transportation and immigration continued so that by the early nineteenth century, the
various Roman Catholic, Presbyterian, Congregationalist, Lutheran, Baptist and
Methodist faiths were all present in Australia. Christianity has remained the dominant
religious tradition in Australia, with sectarian rivalry-notably between Irish Catholics
and English Protestants-being a feature of Australian life until the latter part of the
twentieth century.196
Jewish people first came to Australia aboard the First Fleet in 1788 and many
more arrived refugees after World War II. The first evidence of Buddhist settlement
dates to 1848 when Chinese miners arrived in Australia following the discovery of
gold. Immigration from South East Asia since the Vietnam War has also increased the
numbers of Buddhists in Australia. Muslims and Hindus came to Australia throughout
the nineteenth century to work on cotton and sugar plantations and as cameleers,
divers and sailors. Muslim numbers have increased steadily in more recent times as a
result of civil strife in Lebanon, Iraq, Iran and Afghanistan and due to immigration,
more generally, from Turkey, Egypt and other parts of the Middle East.197
Australia is one of the least devout nations, with religion not playing a central
part in many people‟s lives. A survey in 2008 by the Christian Science Monitor
ranked young Australians as the least religious in the world.198 Figures from the 2006
census show, however that the majority of the Australian population-some 64% still
identify themselves as Christians (26% being Roman Catholic, 19% Anglican and
other Christians 19%). Non-Christian religion account for 5% of the population – the
three most common non - Christian affiliations being Buddhism (2.1% of the
population), Islam (1.7%) and Hinduism (0.7%) of these Hinduism and Buddhism are
the fastest growing religions in Australia, having doubled in size to 150,000 and
420,000 respectively. 19% of all Australians identify as non-believers. A 2008 survey
196
Ibid.
197
Ibid.
198
“Religious observance in Contemporary Australia”, available at
https://espace.library.uq.edu.au/view/UQ:271774/Religious_observance.pdf. Accessed on 20-08-
2016.
266
found that 48% of Australians do not pray; 52% rarely attend a religious service; and
33% do not believe in either God or an afterlife.199
For various reasons the federation movement in Australia lost its momentum
after 1890 and it was not until 1897 that it picked up again. A second federal
convention met during 1897-1898 and from it emerged what was eventually to
become the Australian Constitution Act.200 After a week of general debate a select
committee of the convention framed a draft Constitution and all the following
deliberations took place using this draft as a basis. Clause 109 of the draft
Constitution reproduced the prohibition upon State interference with the free exercise
of religion that had appeared in the 1891 Bill. The first time this clause was debated
by a Victorian delegate, Henry Bournes Higgins, who moved the following
amendment to it:
A State shall not, nor shall the common wealth, make any law
prohibiting the free exercise of any religion or for the establishing of
any religion, or imposing any religious observances.201
In support of this amendment Higgins developed a very strange argument. He

pointed out that it had been decided to insert some reference to existence of God in
the preamble to the Constitution. The phrase was that the people of Australia, humbly
relying on the blessing of Almighty God, had agreed to unite in a federation. This,
Higgins claimed, would inferentially give the commonwealth Government power to
regulate religion.202 To support this statement he referred to a decision of the Supreme
Court of the United States, in 1892 which, he claimed, held that America was a
Christian country. Higgins alleged that on the basis of this decision Congress hade
legislated to close the famous Columbian Exhibition on Sundays. If a mere statement
by the Supreme Court could give congress this power how very much clearer it was in
the Australian Constitution where, unlike that of the United States, God always
expressly mentioned. Therefore, it was necessary, in his view, to make it quite clear
that the commonwealth Government had no such power. This could be done by
199
“Religion in Australia”, The Week 13 (10 July 2009), Quoted from Ibid.
200
Clifford L. Pannam, Travelling Section 116 with A U.S. Road Map, Vol. 4, Melbourne University
Law Review 52 (June 1963).
201
Australian Federal Convention: Debates 654 (3rd Session, Melbourne 1898); Quoted from Ibid.
202
Ibid.
267
adopting the protective clause of the first amendment together with an additional
restraint on laws imposing religious observance in order to cover the 1892 decision.203
Although not identified, Higgins clearly had in mind the Supreme Court‟s
decision in The Church of the Holy Trinity v. United States,204 that case involved the
interpretation of a federal statute making it an offence to prepay the importation of
any alien into the United States to perform any work. A Church had been prosecuted
for paying the passage of a Minister from England. It seems the purpose of the statute
was to prevent the importation of cheap manual labour into the country at a time of
great unemployment and economic distress. Unfortunately the language of the
measure was so all embracing as to include the clergyman in question. Brewer J.
delivering the opinion of the Court held, by dint of a heroic interpretation of the
statue, that the clergyman did not really come within its terms at all. One of the many
reasons given for this conclusion was that an anti-religious intention could not be
imputed to congress. The learned judge gather to together an odd assortment of
historical documents ranging from the commission given to Christopher Columbus by
Ferdinand and Isabella, to various old colonial charters, and distilled from them a:
………universal language………having one meaning; they affirm and

reaffirm that this is a religious nation………they are organic utterance;
they speak the voice of the entire people.205
Now it is true that six months after the Holy Trinity decision was handed
down, Congress passed legislation appropriating money to pay for the exhibition to be
held in Chicago, celebrating the 400th anniversary of The Discovery of America by
Columbus. In that legislation was the following provision:
All appropriations made to Columbian exhibition are made upon the

condition that the said Exhibition shall not be opened to the public on
the first day of the week, commonly called Sunday.206
It was upon this shaky basis that section 116 of the Australian Constitution
was built. However for the movement Higgins was defeated and clause 109 was
203
Australian Federal Convention: Debates I, 654-656 (3rd Session, Melbourne, 1898); Quoted from
Ibid.
204
(1892) 134 US 457.
205
Ibid.
206
27 Stat. Ch. 381 (1892) S. 4; Quoted from Supra note 200 at 54.
268
deleted from the draft. Its reference to the States was found obnoxious to almost all
the members for the Constitution. They regarded it as being unnecessary because
religious freedom had always been respected in the colonies and, at any rate; it was an
unwarranted invasion on the legislative powers of the future States. As far as it
referred to the commonwealth it was rejected as being “an anachronism” applying „to
a state of things that can never arise in these days‟. Higgins constitutional argument
was scoffed at and the whole clause struck out.207
The Australian Constitution was the subject of debate for a decade before its
adoption. The references to God in the Constitution208 were intended to satisfy the
religious views of different groups of delegates participating in the pre-federation
conferences including a movement to have some recognition of God in the
Constitution. Section 116 of the Constitution says:
The commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for prohibiting
the observance, or for prohibiting the free exercise of any religion, and
no religious test shall be required as a qualification for any office or
public trust under the common wealth.
This section of the Constitution is a „constitutional provision of high

importance‟ that ensures that Parliament will observe that “true distinction between
what properly belong to the Church and what to the State”.209 However,
notwithstanding its apparent broad terms this section is not a guarantee of freedom of
religion in Australia. “It is not, in form, a constitutional guarantee of the right of
individuals……….instead takes the form of express restriction upon the exercise of
commonwealth legislative power”.210
Under the commonwealth structure in Australia, the Constitution sets out

those matters upon which the federal Parliament may make law. If a law is outside the
207
208
Preamble to the Commonwealth of Australia Act, 1900 reads: “Whereas the people of New South
Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of
Almighty God, have agreed to unite in indissoluble Federal common wealth……..”
209
The Attorney General for the State of Victoria (at the relations of Black) and Ors. v. The
Commonwealth of Australia (1981) 146 CLR 559 per Stephen J. at 610. Available at
https://Law.anu.edu.au/sites/all/files/users/U4810180/religionpdf. Accessed on 21-08-2016.
210
Ibid.
269
scope of these listed powers it is beyond the power of the commonwealth to make the
law (the law is ultra vires) and any such law is invalid. Section 116, however, is
unlike other sections of the Constitution in that it does not identify a subject area
about which the commonwealth cannot make a law. As such it is a limit on common
wealth power. To put it another way, section 51 sets out 39 areas upon which the
commonwealth may make law. It is however up to the Parliament to decide what
necessary law should be, for example under the Immigration power, (5.51 XXVII),
the commonwealth could make a law that either liberalized or restricted Australia‟s
position on immigration. Under the Constitution the power to make the law is given to
the commonwealth but the decision of what law to make is left to the Parliament.
If section 116 was in similar terms to the other powers is section 51, for
example if it said that the commonwealth shall have the power to make law regarding
religion, then the Parliament of the commonwealth could either restrict or encourage
religious freedom. Section 116 is not, however, like section 51. Rather than give the
commonwealth freedom and power to make a law, it restricts that power. It says that
no matter what the commonwealth may otherwise be able to do it is not able to make
laws about religion what would establish any religion, impose any religious
observance, prohibit the free exercise of any religion, or impose a religious test as a
qualification for any office or public trust under the commonwealth.211
The limit of commonwealth power does not, however, guarantee that the
citizens of Australia have the right to exercise religion free from Government
interference.212 “The fact is that section 116 is a denial of legislative power to the
commonwealth and no more. No similar constraint is imposed upon the legislatures of
the States. The provisions therefore cannot answer the description of a law which
guarantees within Australia the separation of Church and State”.213
Section 116 has four limbs. The first three limbs prohibit the commonwealth
from making certain laws: laws “for establishing any religion”, laws “for imposing
any religious observance”, and laws “for prohibiting the free exercise of any religion”.
The fourth limb prescribes the imposition of religious tests to qualify for any
211
Michael Eburn, “Religion and the Constitution – An Illusory Freedom”, Vol. 8, No. 2, Australian
Religion Studies Review 71-72 (!995).
212
Ibid.
213
270
commonwealth officer or public trust. Only the “establishing religion” and
“prohibiting free exercise” limbs have been the subject of cases before the High
Court.214 The falls in Chapter V of the Constitution, which deals with the States of
Australia? However section 116 does not apply to the States.215 Although the States
came into existence at the time of Federation in 1901, they are not bound by the
prohibition contained in section 116 which is directed solely at the commonwealth i.e.
the Federal Government.216
In Grace Bible Church v. Redman,217 the court rejected an argument that there
was a common law prohibition that was similar to section 116 and applied to the
Government of South Australia. They found that there was no fundamental of an
inalienable right of freedom of religion and that there are no constitutional fetters on
the Parliament of South Australia (or any other State) that would limit the State‟s
power to legislate on matters of religion as it saw fit. A State is not bound by section
116 and can impose a State Church, or prohibit the exercise of certain religious
practices, as it seems fit.
Despite its promise of a guaranteed constitutional freedom, section 116

represents no more than a limit on commonwealth power. It does not guarantee
religious freedom for Australian citizens, rather it guarantees that any imposition or
restriction of religion by the commonwealth shall not take any of the four specifically
prohibited forms, but a restriction may come in other forms, such as a law that
outlaws conduct required by a religion, provided that such prohibition is part of a law
that is „for‟ the achievement of some valid commonwealth aim. The States, on the
other hand, are free to impose religion or restrict the free exercise of religion, subject
only to inconsistent commonwealth laws, if any. As far as the present Constitution
stands, the concept of a guarantee of religious freedom is just that, more a „concept‟
than a reality.218
214
Tony Blackshield, George Williams, Sean Brennan, and Andrew Lynch, Australian Constitutional
Law and Theory 1165 (The Federation Press, Annandate, NSW, 5th ed. 2010).
215
Jennifer Clarke, PatricKeyzer and James Stellios, Hanks,Australian Constitutional Law: Materials
and Commentary 1027 (LexisNexis Butterworth, Chatswood, 8th ed. 2009).
216
217
(1984) 36 SASR 376.
218
271
Hearing and reading how people view religion in present-day Australia can
help us to understand the issues they raise. The research data revealed differing views
about what Australia‟s religious character was, is, or should be: Indigenous, Christian,
Secularist, or Multi-faith. The research revealed significant concerns about the
direction in which society in general, and Governments in particular, appear to be
heading in relation to the role and management of religious affairs. Simultaneously,
however, many participants in the research felt-and-felt strongly-that the situation is
quite satisfactory in Australia, that the nation has a good working model of freedom
of religion and belief that does not need to be changed. Their message was to „retain
the status quo‟ because Australia is a peaceful country without serious interreligious
tensions.219
3.5.3 Secularism, Church and State relationship in Australia
It is widely accepted that Church and State relations continue to remain

unclear in Australia. Such a view is substantiated by research into Church and State
relations (Allison, 2006; Fame, 2006; Hogan, 2001; Irving 2004; Wallace, 2003)220
Throughout Australian history, the Church and State relationship has changed from
European settlement to the twenty-first century.221
In the Eighteenth century, Governor Macquarie used the Church of England

doctrine to establish authority, punishment and order. He protected the privileged
status of the Church by monitoring Church services conducted by the Reverend
Samuel Marsden, who also served as a town magistrate.222 During this period, the
Church differentiated into a number of denominations including the Catholics,
Methodists and Presbyterians. As the Church differentiated, different Christian
denominations developed sectarian tensions, as they each sought to challenge the
Church of England and each other for the most privileges from the State.223
219
A Research Report Prepared for The Australian Human Rights Commission by Gray Bouma,
Desmond Cahill, Hass Dellal and Athalia Zwartz; “Freedom of Religion and belief in 21 st century
Australia”, Australian Human Rights Commission 22 (2011).
220
Charlotee Baines, “Secularization and the Church and State Relationship: A Socio-legal
Exploration”; available at https://www.tasa.org.au/wp-content/uploads/2008/12/71.pdf. Accessed
on 21-08-2016.
221
Ibid.
222
Ibid.
223
Ibid.
272
Glynn‟s speeches at Adelaide and Melbourne emphasized links between
Church and State even in the absence of formal establishment. The historical
association with English law, the role of the Church is coronation, the references to
Christianity in daily formalities; all became reasons to put God in the fledgling
Constitution.224 However, there was also a substantial body of opposition, led, in
Adelaide, by Barton:225
The whole mode of Government, the whole province of the State, is

secular. The whole business that is translated by any community -
however deeply Christian, unless it has an established Church, unless
religion is interwoven expressly and professedly with all its actions- is
secular business as distinguished from religious business. The whole
duty is to render into Caesar the things that are Caesar‟s, and unto God
the things that are God‟s ………….In these colonies, this line of
demarcation is most definitely observed, and there is no justification
for inserting into your secular documents of State provisions or
expressions which refer to matters best dealt with by the Churches, and
which every righteous citizen will deal with in his Church and at his
time of worship.
He put the same view in Melbourne, where Douglas picked it up:
I sincerely and truthfully believe in the Almighty power, but I do not

wish to introduce any reference to that power in the preamble to this
Bill. I do not think it is a matter in which in a community like ours, a
body like this convention, which has been brought here for a particular
purpose, should interfere. We should be travelling out of the range of
the purpose for which we were sent here by inserting such words in the
preamble to this Bill.226
A century on, separationist arguments of the kind put forward by Barton,

Dougals and others were rarely raised. None emerged in 1998 convention. In the mass
media, around the time of the convention and during leading up to the referendum,
224
Marion Maddox, For God and Country: Religious Dynamics in Australian Federal Politics 77
(Department of the Parliamentary Library, Common wealth of Australia, 2001).
225
Convention Debates, Adelaide, 1897, p. 1187; Quoted from Ibid.
226
Convention Debates, Melbourne, 1898, p. 1740; Quoted from Ibid.
273
when the inclusion of God was discussed at all, it tended to be assumed that support is
coextensive with religious commitment. Rare exceptions emerged only once the
Prime Minister had announced the shape of his draft preamble. One such murmur
came from The Australian newspaper, whose religious affairs commentator, father
James Murray, argued that in a safely secular democracy, such a
proposal……….threatens the neutrality of the State on religious matters.227 A week
later, another columnist, Frank Devine, went further, not only fearing that the Howard
Preamble would make God „a portion of official state position‟, but chilling
comparing it with the religious freedom provisions in the 1924 Constitution of the
Soviet Union228 consistently wary of „trendy‟ or „politically correct‟ religious social
justice advocacy, Devine worried that constitutional recognition would lend
credibility to Churches‟ „babble of political pieties Pop Psychology and Fashionable
prejudice‟.229 It might embolden:230
Clergy and members of religious orders who shamelessly use their

positions to give a semblance of authority to expressions of personal
opinion about secular matters such as taxation policy and childcare
subsidies, not to mention the foreign policy of Israel.
Whilst the first Amendment to the United States Constitution guaranteeing

religious liberty has been said to erect a „wall of separation‟ between Church and
State,231 its cousin, section 116 of the Australian Constitution, has been described as
„seriously limited‟232 and creating a „flexible‟ separation of Church and State.233
While it may be true that section 116 is a weaker provision than the first
amendment, this does not mean that section on 116 is capable of having only a very
narrow effect. The immediate object of inserting section 116 into the Constitution was
the desire by certain delegates to the convention debates to counter any possible
227
J. Murray, “Keep creed out of Constitution: God Should be above Constitution”; Quoted from Id.
at 78.
228
Quoted from id at 78.
229
Ibid.
230
Ibid.
231
Everson v. Board of Education 330 US 1 at 16 (1947).
232
233
Stephen McLeish, “Making sense of Religion and the Constitution: A Fresh Start for Section 116”,
Vol. 18, No. 2, Monash University Law Review 221 (1992); available at
https://www.austlii.edu.au/journal/monashulawrw/1992/10.pdf. Accessed on 23-08-2016.
274
effects that the preamble to the Constitution might have.234 However, the political
debates and compromises resulting in the section‟s inclusion in the Constitution do
not settle the question of whether it is a repository of broad principle. It is, in fact, its
terms and their interpretation by the High Court that do. Most telling against the idea
that section 116 embodies a broad principle is the fact that it is expressed only to bind
the commonwealth and not the States.235 Stephen analysis of the question in DOGS
case in indicative of the General approach of the High Court:236
The very form of section 116, consisting of four distinct and express
restrictions upon legislative power, is also significant. It cannot readily
be viewed as the repository of some broad statement of principle
concerning the separation of Church and State, from which may be
distilled the detailed consequences of such separation. On the contrary,
by fixing upon four specific restrictions on legislative power, the form
of the section gives no encouragement to the undertaking of any such
distillation.
Applying the concept of neutrality to give meaning to the establishment clause

of section 116 immediately raises its own difficulties. One view, the only kind of
Government neutrality in matters of religion (and quasi-religion) is a rigid separation
between Church and State, prohibiting all State assistance of religion and perhaps
even forbidding the clergy from holding public office.237
But this would constitute hostility toward religion; if the State provides free
secular schooling but no aid to Church schools, then religious parents must pay higher
fees for their children to attend Church schools, even to the extent that those schools
teach non-religious subject matter.238
234
Strictly speaking, the preamble is the preamble to the commonwealth of Australia Constitution Act
1900 (Imp) and not to the Constitution which is contained in section 9 of the Act; see T.
Blackshield, “Religion and Australian Constitutional Law”, in Radan, Meyerson and Croucher
(eds.) Law and Religion 81-86 (2005).
235
Luke Beck, “Clear and Emphatic: The Separation of Church and State under the Australian
Constitution”, Vol. 27 No. 2, The University of Tasmania Law Review 163 (2008).
236
Attorney-General (vic) (exrel Black) and ors v. Commonwealth and ors. („DOGS Case‟) (1981)
146 CLR 55 at 609.
237
Supra note 233, at 228.
238
M.W. McConnell, “Accommodation of Religion”, Quoted from Supra note 233 at 228.
275
It can plausibly be replied that a religious approach to education will pervade
all teaching at a Church school; but a set of fundamental quasi-religious beliefs is
equally likely to pervade much of the teaching at a non-religious school. Although
measurement of these kinds of influence is fraught with difficulty, some comparison
can still be attempted.239
The 1998 Constitutional convention held in old Parliament House between 2

and 13 February 1998, had as its main task to determine a republican model to be put
to a referendum. However, it also addressed the suggestion that a constitutional
change as fundamental as the shift to a republic would require, or at least provide a
good opportunity for, reviewing the constitutional preamble. The convention
recommended that there should be a new preamble, containing, inter alia, „reference
to Almighty God‟. When the preamble and republic questions were tested at the
November 1999 referendum, the people voted a resounding „no‟ to both. An observer
of secular Australia might expect that the mention of God in the preamble would be a
significant contributing factor in its rejection. In fact, however, public debate in the
period leading up to the referendum showed negligible interest in the phrase „with
hope in God‟,240 focusing instead on a range of matters including the draft Preamble‟s
statement on Indigenous peoples and returned armed service personnel. What little
objection there was to God‟s mention tended to be made on religious rather than anti-
religious grounds. The lack of public debate might indicate either indifference or
acceptance of the phrase; it is hard to read it as an expression of hostility.241
In the near-silence in which the proposed God reference was greeted, the main
clue to how the phrase stood in the public mind is the debates at the constitutional
convention itself. The debates which led to this recommendation provide perplexing
evidence about the esteem in which religion is held in turn-of-the-century Australia.
239
Ibid.
240
For example, the official „No‟ case on the preamble question did not mention God, focusing
instead on popular distrust of politician and the Preamble‟s circumlocutory recognition of
Indigenous peoples. See text of the official „No‟ case appended to Peter Andren MP, Press
Release, 9 September 1999, „Official Preamble „No‟ case Released‟; quoted from Marion Maddox,
“2000 Presidential Address „with Hope in God‟-Religion, the Preamble and Public Values in
Australia, Volume 13, Number 2, Australian Religion Studies Review 5 (2000).
241
Ibid.
276
Exploring the perplexities reveals much about religion‟s public significance in this
highly secular milieu.242
The evidence of multicultural inclusiveness as a major concern in later-

twentieth-century recognition debates suggests that the conundrum of God‟s
increasing constitutional acceptability with increasing secularization is best explained
by a shift in what „God‟ signifies. In the nineteenth century, a grounds well of public
passion supported both advocates of the recognition clause and advocates of
separation between Church and State. For both „God‟ was the object of widespread
religious practice, over-whelming Christian. Now, the weight of opinion in favour of
God‟s inclusion comes from people who think God‟s inclusion is what other people
want. Those who oppose God‟s inclusion are likely to do so less on grounds related to
their own beliefs than because they fear it violates the beliefs of others. The preamble
debate suggests that, in Australia at the turn of the twenty-first century, religion is a
serious topic deserving consideration and respect. By and large, however, Australians
regards religious passion as something that other people have.243
3.6 State, Religion and Secularism in Switzerland
3.6.1 Constitutional Commitment
The Helvetic (Swiss) Republic is still called a confederation of 20 and half

cantons, through since 1848 it has adopted a federal Constitution which was
considerably revised in 1874 and rewritten in 1999 incorporating all the amendments
made up to that period. It is an ancestral house of direct legislation and the only
country in the world still practicing direct democracy. In the words of Dr. Munro,
“Nothing in the Swiss political system is more instructive to the student of modern
democracy”.244
A Diet committee of fourteen drafted the Constitution of 1848 which after

approval by the Diet was submitted to referendum and was ratified by an
overwhelming majority of the cantons and the people. Thus, the confederation was
converted into a federal State. Though it seemed to be a step of substantial importance
242
Ibid.
243
Id. at 20.
244
W.B. Munro and Morely A. Yearst, The Governments of Europe 746 (The Macmillan Company,
New York, 4th Ed., 1954).
277
yet it was purely a comprise arrangement. The controls were granted sovereignty so
far as their sovereignty was not limited by the federal Constitution. The Constitution
of 1848 made provision for Bicameral Federal Assembly, the Collegial Executive,
Referendum, Initiative, Common Citizenship and Federal Tribunal.245
The Constitution of 1848 lasted for twenty-six years only. The tendency
towards greater centralization becomes more pronounced although the federalists still
pleaded for social and municipal privileges of the cantons. The radicalists advocated
the abolition of such rights and privileges. They stood for inalienable rights and
liberties for the Swiss under the protection of a unified and centralized law. The
Radicals were backed by a considerable majority of the population. Thus, the
Constitution of 1848 necessitated the revision. The federal assembly framed the new
Constitution and referred it to the people for their approval. It was adopted by a
thumping majority of the Swiss citizens and came into operation on May 29, 1874.
The revised Constitution carried centralization still farther by providing for the
nationalization of railway under Federal ownership and vesting more powers with the
center. Moreover, the powers of the Federal Tribunal were considerably enhanced.
The separate judicial systems of the cantons were abolished.246
Although the Constitution of 1874 was quite a rigid Constitution and the
proposals for its complete revision were rejected, yet there have been quite numerous
(about 150) partial revisions, vast majority of which added to the authority of the
Central Government. In view of the numerous amendments, since 1874, it was felt
desirable to integrate the accumulated amendments into new texts. The new text was
adopted by the federal parliament on December 18, 1998 and adopted by a
referendum on April 18, 1999. The Parliament issued the Enforcement Decree on
September 28, 1999, and the new Constitution came into force in January 1, 2000.
Thus, Switzerland entered the new millennium with a new legal foundation. However,
the new Constitution did not radically change the structure of the Swiss Federation as
envisaged in the 1874 Constitution.247
245
Available at http://www.history-switzerland.geschichte-schweiz.ch/switzerland-federal-
constitution-1848.html. Accessed on 24-08-2016, see also Supra note 76 at 237-238.
246
Ibid.
247
Ibid.
278
Democracy and Switzerland are almost synonymous.248 In the words of
Bryce:249
Among the modern democracies which are true democracies,

Switzerland has the highest claim to be studied. It is the oldest, for it
contains communities in which popular Government dates farther back
than it does anywhere else in the world, and it had pushed democratic
doctrines farther and worked them out more consistently than any
other European State.
The Swiss Constitution of 1874 did not contain a formal bill of rights as found
in USSR and in India. This does not, however, mean that the fundamental rights of
Swiss citizens were not protected by their Constitution or were not incorporated in it.
In fact, the Rights ensured to the Swiss citizens were scattered in a number of Articles
of the Swiss Constitution.250
Now these rights have been integrated under title 2 of the 1999 Constitution.
Articles 7 to 40 mention these rights. The Constitution guaranteed to Swiss citizens
equality before law, freedom of movement in the country and residence in any part of
the country, and freedom of press and association, freedom of religion etc. Article 15
of the Constitution reads:
Article 15: Freedom of religion and conscience-
1. Freedom of religion and conscience is guaranteed.
2. Every person has the right to choose freely their religion or

their philosophical convictions, and to profess them alone or
community with others.
3. Every person had the right to join or to belong to a religious

community, and to follow religious teachings.
4. No person may be forced to join or belong to a religious

community, to participate in a religious act, or to follow religious
teachings.
248
D.E. Rappard, The Government of Switzerland, 49; Quoted from Ibid.
249
James Brice, Modern Democracy 367 (The Macmillan Company, New York, Vol. 1, 1921).
250
279
The Constitution and other laws and policies protect religious freedom, and in
practice, the Government generally enforced these protections. The Constitution
provides for freedom of creed and conscience, and the federal penal code prohibits
any form of debasement of or discrimination against any religion or any religious
adherents. The law penalizes public incitement to racial hatred or discrimination,
spreading racist ideology, and denying crimes against humanity.251
3.6.2 Nature of Religion and Secularism in Switzerland
Today, Switzerland is a secular State in which State and religion are in

principle separated. This does not mean, however, that religion is totally banned from
public law. On the cantonal level, the State acknowledges a privileged status to
different important religious communities. Moreover the State reacts to the rise of
religious plurality. It tries to solve the legal and factual problems which occur due to
the emergence of non-western religious communities. The focus of the State policy is
to a lesser extent on the laity of the State than on the religious neutrality; in areas
which are of interest for the State, it cooperates with the religious communities.252
The accommodation of religious difference in contemporary Swiss society

occurs within pre-existing institutional framework that emerged in conjunction with
the forging of Swiss identity over the last two centuries. Swiss federalism developed
incrementally, evolving from the bottom to the top, from localities via the canton to
the federation. It originated in 1291 when three political units initiated the Swiss
confederation through an agreement popularly known as Rutli - Schwur (an oath of
commitment between the three inner-Swiss cantons of Schwyz, uri, and
Nidwalden).253 Between the fourteenth and the eighteenth centuries, a number of
political units joined the confederation. The League of Thirteen cantons was formed
in 1513 and thereafter ruled indirectly over conquered territories (comprising the
Italian-speaking Ticino, the French speaking Vaud, as well as the German-speaking
Aargau and Turgau).254 The League was the only stable institution of the pre-modern
251
Available at http://www.state.gov/documents/organization/171724.pdf. Accessed on 23-08-2016.
252
Rene Pahud De Mortanges, “Religion and The Secular State in Switzerland”; available at
https://www.iclrs.org/content/blurb/files/switzerland.1.pdf. Accessed on 25-08-2016.
253
Joanna Pfaff-Czarnecka, “Accommodating Religious Diversity in Switzerland”, in P.Bramadat, M.
Koenig, and Montreal, International Migration and the Governance of Religious Diversity 227
(Queen‟s University Press, Kingston, 2009).
254
Ibid.
280
Swiss polity that maintained a permanent assembly of delegates as well as the Diet,
which met regularly to discuss matters of common interest.255 In the aftermath of the
Napoleonic war, this flexible, horizontally organized political system was transformed
into an internally complex society within a single federal State (Bundesstaat); this
arrangement was later sanctioned by the Constitution of 1848.256
After the countries had held the Church sovereignty during the Ancient
Regime; the framers of the federal State of 1848 abstained from stipulating a federal
competence in this field. According to the effective federal Constitution,257 which
entered into force in 2000, the relationship between the Churches and the State is
governed by the cantons.258 The Federal State itself does not have a religion and does
not favour any religion. On this level, the State and religion are in principle,
separated. The preamble of the federal Constitution indeed starts with the invocation
of God (“In the name of God Almighty!”). This is supposed to point out the existence
of a higher power besides the people and the State. The invoked God must not only be
understand in its Christian meaning; nor shall thus be founded a Christian State. The
separation of the State and religion is not explicitly mentioned in the Constitution, but
is derived from the freedom of religion which is protected directly on the level of the
Constitution like the other fundamental rights. According to Article 15 of the
Constitution, the freedom of religion and conscience is guaranteed. In Switzerland, a
part from the freedom of religion, which has been developed by the Swiss Supreme
Court, the majority of the State Church law is cantonal law.259 Therefore, with 26
cantons, we have 26 different systems of State Church law. Politicians adhere to the
cantonal sovereignty in this matter; this policy finds its justification in the small areas
spaces and the considerable linguistic and cultural differences between the cantons.
However, the basic allocation of competences cannot prevent the confederation from
legislating on religiously relevant issues like pastoral care in the army, development
aid, or asylum and refugee laws.260 The federation of Swiss Protestant Churches
255
Ibid.
256
Ibid.
257
The Federal Constitution of the Swiss Confederation, 1999.
258
Article 72: Church and State-1. The Regulation of the relationship the Church and the State is the
responsibility of the cantons. 2. The confederation and the cantons may within the scope of their
powers take measures to preserve public peace between the members of difference religious
communities.3. The Construction of Minarets is prohibited.
259
260
Ibid.
281
(FSPC) has formulated suggestion for a framework article in the Federal Constitution
a few years ago.261 This could have been a legal basis for the regulation of the
relationship between the State, the Churches and other religious communities.262 But
these suggestions were met with little interest by political parties because they were
perceived as a turning away from the secularism by the confederation. In accordance
with that, there is no administrative office at federal level which deals with religious
questions. The religious communities have to seek different contact persons in the
federal administration depending on their factual question. If a member of the federal
council receives religious communities, it generally only happens in the form of a
delegation which contains members of all the important religious communities. By
this means they aim to avoid that a religious community has a privileged access to the
supreme federal public authorities.263
In the wake of revision of the Federal Constitution, several cantons have

revised their cantonal Constitutions in the past few years. In the cantons of St. Gallen
(2001), Neuchatel (2002), Vaud (2003), Fribourg (2004), Zurich (2005), Basel-Stadt
(2005) and Lucerne (2007), new Constitutions came into effect. The revision of the
Constitution put the preparing commission of the Parliament and the constitutional
council in a position to moot effective religious constitutional law.264 In some cantons,
a system change was discussed, but was not enacted afterwards. A development in
small and pragmatic steps is thus favoured. The separation of the State and the
Churches, which was proposed in Fribourg following the example of Neuchatel, was
soon abandoned. A mandate tax which was discussed in Fribourg and in Basel-Stadt
following the Italian, example was also abandons. What was changed instead of that?
If we want to talk about tendencies, the following could be mentioned without making
the claim to be complete:265
Traces of inequalities between the Roman Catholic and Protestant

Churches are removed. In the canton of Vaud, the Protestant Church
was a State Church until the revision of the Constitution, while the
Roman Catholic Church was a simple society; with the revision, both
261
Ibid.
262
Ibid.
263
Ibid.
264
Id. at 697.
265
Ibid.
282
of the Churches became institutions de droit public. The canton of
Vaud thus became the last Swiss canton to dismiss the State Church
situation.
In the doctrine, but also among the State and Church authorities, the
perception establishing that the future of Swiss State Church law will not lie in the
strict separation of the State and the Churches and in State secularism, but in the
cooperation of the two social powers.266 In most cantons, both the reformed and the
Roman Catholic (and very often also the Christ-catholic) Churches are recognized
officially by the State, which means that they have certain rights and obligations.
Prerogatives can include the right to raise a Church tax from (self-declared) members
and also moral personalities, exemption from taxes, the right to give religious
education in school and to administer religious education in school and to administer
religious services in hospitals and to the army. In almost all cantons, we find that the
law adapts to the emergence growing religious pluralism by diminishing the
importance of historically grown religious monopolies or oligopolies. The trend,
however, does not seem to go in, the direction of a complete separation of Church and
State but rather towards the public recognition of an ever greater number of religious
groups.267
The mere assertion that the structures of the Catholic Church in Switzerland
are twofold, namely “canonical structures” (kirchenrechtliche Strukturen) and
“structures according to State-Church law” (staatskirchenrechtliche Strukturen), is in
fact problematic.268 The problem persists when the thing that holds them together is
said to be the “duel system”, whose functioning requires good cooperation. The latter
of these requisites seems obvious: all cooperation, even between the constitutional
entities of a democratic State, requires good will in order to function properly. At the
same time, structures of Government and administration must be designed in such a
266
The separation is not total; however, The Protestant, Roman Catholic and Christ-Catholic
Churches are recognized publicly, which means that the State helps them with some administrative
business, such as the raising of Church tax. However, the payment of the Church tax is optional
and the Churches are in no way subsidized by the State. Another example of the marked separation
of Church and State besides Geneva is the canton of Newchatel; Quoted from Jorg Stolz,
“Switzerland and the new Religious Movements”; available at
http://www.unil.ch/issrc/files/live/sites/issrc/files/shared/publciation/WP_workingparpers/WP_03-
2006.pdf. Accessed on 26-08-2016.
267
Ibid.
268
Hans Feichtinger, “Moves towards Authentic Freedom: Church and State in Switzerland, and
Beyond” Vol. 10 (2), The Saint Anselm Journal 51-52 (Spring 2015).
283
way as to function, be it less perfectly, even if the office holders are not simply good-
willed, not supremely intelligent, or, in Christian terms, not saintly. This indeed is the
quality test for structures of leadership. Besides this more pragmatic consideration,
and more importantly, the “duel system” is a system that works much better for the
reformed Churches for which it was devised initially; in this sense it could be called
unjust and discriminatory against the Catholic Church. Making it work for the
Catholic Church, with its claim to be a visible Church and with its hierarchical nature,
has always been a stretch, somewhat artificial, and under the condition of today it
creates more and more difficulties.269 The democratic spirit behind the “duel system”
must be appreciated and it has indeed guaranteed financial safety for the Church in
Switzerland, though even its proponents lament a certain stinginess of the local
corporations against the needs of the canton corporation, the diocese and the
conference of Swiss bishops, never mind the universal Church and the Apostolic see-
to which they have a canonical obligation to support by reason of a bound of unity
and charity.270 The same democratic spirit, however, becomes a problem when the
corporations go beyond their own competencies, release declarations on theological or
liturgical matters and try to influence the pastors and bishops by withholding or
giving money according to the theological preferences of the corporations‟ executives
or Parliaments (“synods”). For the Church, as for any religious group, the right to
determine its internal structure of governance belongs to the contents of religious
freedom as much as the right to public activity, missionary outreach and social
engagement included.271
Recent decisions of the Swiss Supreme Court (Bundesgericht) have introduced

significant changes into the previously fairly stable jurisprudence. According to the
position previously up held by the courts, every Catholic residing in a specific town
and canton automatically and inevitably was a member of the relative cooperation,
obligatory and automatic membership was judged constitutional because everyone
had the unlimited right to leave the Church; the relatively minor infringement on the
Church‟s own freedom was deemed acceptable as the Church had always tolerated, if
not defended, this form of duel membership. According to the new Supreme Court
decisions, Catholics can have the corporation while continuing to be considered
269
Ibid.
270
Ibid.
271
Ibid.
284
Catholics. The decisions emphasize the right not to reveal your religious affiliation,
which is in fact at the heart of religious freedom.272
As has been discussed Christianity is the predominant religion of Switzerland.

Switzerland Demographics profile 2016 reported the religious demographics as:
Roman Catholic 38.2%, Protestant 26.9%, other Christian 5.6%, Muslim 5%, and
other 1.2%, none 21.4% unspecified 1.3% (2013 est.).273 Over the past 50 years,
Switzerland has experienced an influx of Muslim immigrants in three separate waves
and all primarily from European countries in the late 1960s, the first wave of
Muslims, primarily men, arrived in Switzerland because they were primarily restricted
to the business sphere of Swiss society. In the later 1970s, Switzerland revised their
immigration laws to allow for family regrouping. This triggered the second wave of
Muslim immigration which was primarily comprised of women and children,
including the wives and children of the businessmen who arrived in Switzerland 10
years prior. This wave is particularly important because it shifted the demographics of
the Muslim population from all male to female units. This shift had a notable impact
of the visible presence of Muslims in Switzerland. The third wave of immigration
began, in the 1980s and continues today. These immigrants are politically driven
asylum - seekers arriving primarily from Eastern Europe.274 The census records
demonstrate this steady increase of Muslims living in Switzerland. In 1970 the people
who self-identified as Muslim numbered 16, 300, and this number consistently grew
to 56,000 in 1980, 152,000 in 1990, and 310,000 in 2000.275
With the passage of time Muslim communities started to create Minarets in

Switzerland. For the nationalist party in Switzerland, the Swiss People‟s Party, both
the religious and the secular understanding of the minarets pose a threat, even though
there are only four minarets gracing the Swiss landscape, including ones at the
Muhmud Mosque and the Islamic Cultural Foundation of Geneva. In January 2005,
when a Turkish Mosque in Wangen publicly announced their intention to construct a
272
The two fundamental decisions (leitentschiede) are BGE 134 I 75 and BGE 129 I 68; Quoted from
Ibid.
273
Available at http://www.indexmundi.com/switzerland/demographics_profile.html. Accessed on
27-08-2016.
274
Stephane Lathion, “Muslims in Switzerland: Is Citizenship Really Incompatible with Muslim
Identity?” Vol. 28, No. 1, Journal of Muslim Minority Affairs 53-60 (April 2008).
275
GRIS and Religious Scope Institute, “Islam in Switzerland: Figures”, in Patrick Halnni and
Stephane Lathion (eds.), The Swiss Minaret Ban: Islam in Question 23 (Religious Scope Institute,
Fribourg, 2011).
285
symbolic minaret, strong opposition overwhelmed the project with a petition of 400
signatures, effectively halting the project.276 In July 2006, canton authorities revoked
the previous ruling to allow for the minaret project on the condition that it not be used
to project the call to prayer, though this was a rather redundant ruling as minarets
outside of Muslim-Majority countries do not generally project the call to prayer. After
a series of appeals intending the thwart the project, the Wangen minaret was finally
inaugurated in June 2009.277
Following the original announcement of the Wangen minaret project in 2005,

three other minaret projects were announced in the towns of Winterthur, Wil, and
Langenthal.278 In May 2005, the minaret in Winterthur was successfully erected
without the public outcry experienced in Wangen. However, the Islamic communities
in Wil and Langenthal were unsuccessful. In Langenthal, citizens petitioned the
Minaret, gathering 35000 signatures and 76 appeals to hinder the construction.279
Contrastingly, a bright white Sikh temple crowned with a golden arrow was built in
Langenthal in 2006, meeting no resistance from the community. Mayer points to this
inequity as categorically Islam phobic rather than xenophobic.280
The Wangen Minaret controversy and the surge of Minaret building plans
across Switzerland, along with 2004 French headscarf debate, the 2005 London bomb
attacks and fury over a Danish cartoonists portrayal of Muhammad in 2006 were the
kindling needed to garner public support. In September 2006, vocal opponents to
minaret construction in Switzerland, primarily members of the SVP or the Federal
Democratic Union, Congregated in Egerkingen to join in what was called the
“Egerkingen Committee”.281
Originally, this committee intended to broach a variety of issues, but soon

their agenda was distilled down to one, making the minaret controversy their political
276
Savann D. Dodd, „The Structure of Islam in Switzerland and the Effects of the Swiss Minaret
Ban”, Journal of Muslim Minority Affairs, 8 Feb 2015; available at
http://www.tandfonline.com/10i/cjnm20. Accessed on 29-08-16.
277
Ibid.
278
Ibid.
279
Jean-Francois Mayer, “In the Shadow of Minaret: Origin and Implications of a Citizen‟s
Initiative”, in Patrick Haenni and Stephane Lathion (eds.), The Swiss Minaret Ban: Islam in
Question 11 (Religious Scope Institute, Fribourg, 2011).
280
Ibid.
281
Id. at 13.
286
platform.282 Thus, May 2007, the Egerkingen committee fields their citizens‟
initiative, which requested the addition of third paragraph to Article 72 of the Federal
Constitution to formally prohibit the building of minarets across Switzerland.283
On 29 November 2009, the Swiss people voted in a popular referendum in

favour of an absolute prohibition of the construction of minarets on Swiss territory.
The vote was 57.8% in favour, and 23 of the 26 cantons were in favour of the
prohibition. The turnout was 53.4%, which is relatively high for Switzerland.284
Consequently Para 3285 to Article 72 was inserted in the Federal Constitution of the
Swiss confederation, 1999, which reads “The constructions of minarets is prohibited.”
The Swiss minaret ban might well be dismissed as an oddity or curiosity, the
outcome of a peculiar political system in an introspective country that still seems (or
hopes) to stand isolated from currents of history. But the prohibition of new minarets
is bound to have wider implications. In the short term, the ban raises a number of
specific legal questions for instance, after the implementation of the ban, the history
of which is set out in Part II, the Swiss Constitution contains provisions guaranteeing
equality and freedom of religion, as well as a provision that selectively restricts one
religious community. These contradictions are the result of a constitutional system
that attributes extraordinary influence to voters through ballot initiatives and referenda
while severely limiting judicial review of popular decisions.286
D. Dodd Mentions287:
The minaret ban is not an anomaly in Switzerland, but a part of a

larger issue of understanding secularism in the Swiss context.
Understanding Swiss secularism is not an easy task because of
linguistic and cultural differences across the country and that have
produced differing concept of secularism within the nation. The idea
282
283
284
Anne Peters, “The Swiss Referendum on the Prohibition of Minarets”, available at
https://www.ius.unibas.ch/uploads/public/9943/20131216170508_52af24b4aff77.pdf. Accessed on
29-08-2016.
285
Adopted by the popular vote on 29 Nov. 2009, in force since 29 Nov. 2009 (Federal Decree of 12
June 2009), Federal Council Decree of 5 May 2010; As 2010; 2161; BBI 2008, 6851, 7603, 2009,
4381, 2010, 3437.
286
Lorenz Langer, “Panacea or Pathetic Fallacy! The Swiss Ban on Minarets”, Vol. 43, No. 4,
Vanderbilt Journal of Transnational Law 866-867 (October 2010)
287
Supra note 276 at 15
287
of Swiss secularism is still in formation and Switzerland is at a cross
roads, the result of which will determine how secularism will be
understood in future. On the one hand, Swiss society can accept the
growing numbers of Muslims and adopt to incorporate them into all
spheres of Swiss society including the political sphere. On the other
hand, the right-wing parties could wield their emotional influence on
the Swiss public, as they did last year in the Swiss referenda “against
mass immigration” which reinstated quotes on residency permits for
workers coming from neighboring nations in the European Union. A
turn in this direction would likely exclude Muslims from Swiss
society, refusing to make accommodations for the various ways of
living out an Islamic way of life.
3.7 Law and Religion in Russian Society
Like that of erstwhile Soviet Union, USA, India, France, Canada, Switzerland,
etc., the Constitution of Russia‟s federation is a written one comprising 137 Articles.
The Constitution was approved by President Yeltsin and adopted by referendum on
December 12, 1993. Minor textual changes to Article 65 were added by order of the
President on January 9, 1996. Evidently, it is a brief document.288
Articles 3 and 5 declare Russia as a “Democratic Federal Republic”. They

have made a provision for democratic election on adult suffrage basis. Anybody who
is twenty-one years of age has right to elect his representative. Referendum and free
elections are the direct manifestation of power of the people.289
3.7.1 Constitutional Guarantees of Religious Freedom
Today Russia‟s Constitution declares the State to be a secular one where no

religion shall be declared an official or compulsory religion. The Constitution of the
Russian Federation provides for equality of all religious associations before the law
and states in Article 14 that all religious organizations shall be separate from the
288
289
See Article 3 and 5 of The Constitution of Russian Federation, 1993.
288
State.290 This provision is contained in the fundamental principles of the constitutional
system of the Russian Federation and cannot be changed except by a very
complicated procedure established by the Constitution.291 No other legal acts may
contradict the fundamental principle of the Russian constitutional system.
Religious issues are regulated also by Article 28 of the Constitution.292

According to Article 28, all people are to be guaranteed freedom of conscience and
freedom of religion, including the right to profess individually or jointly with others
any religion, or to profess none to freely choose, hold and propagate religious beliefs
and to act in accordance with them. This constitutional provision is officially
interpreted by the Government of the Russian Federation293 as the recognition of the
right of every person to act in accordance with his own beliefs and means the freedom
to be a member of an already existing religious association to establish new religious
groups to perform worship service, religious rituals and ceremonies, to publish and
distribute religious books and materials, to obtain a religious education. As the
Government interpretation says, this constitutional Article provides for the right to
alternative military service also.294
However, the realization of that right as well as others depends on the

adoption of implementing federal laws and legal acts in the future. Presently, a citizen
may not refuse to fulfill his civil obligations on religious grounds, and a refusal to
undergo military service because of religious convictions is still criminally
punishable.295
Because of the historical tradition of the Soviet, the right cannot be exercised
without limits. The idea of absolute rights is conclusively rejected in Article 55.3
which states that “human and civil rights may be restricted by the federal law only to
290
Article 14, The Constitution of Russian Federation, 1993 reads: 1. The Russian Federation shall be
a secular State. No religion may be established as the State religion or as obligatory. 2. Religious
associations shall be separated from the State and shall be equal before the law.
291
Peter Roudik, “Church Autonomy in the Russian Federation” 3; available at http://www.uni-
terier.de/fileadmin/fb5/inst/IEVR/Arbeitsmaterialien/Staatskirchenrecht/Europa/Conference_1999/
roudik.pdf. Accessed on 30-8-16.
292
Article 28, The Constitution of Russian Federation, 1993 reads: Everyone shall be guaranteed
freedom of conscience and religion, including the right to profess individually or collectively and
religion or not to profess any religion, and freely to choose, possess and disseminate religious and
other convictions and act in accordance with them.
293
Commentaries to the Russian Constitution, Published by The Administration of the RS President,
1994, at 177;
294
295
Ibid.
289
the extent required for the protection of the foundations of the constitutional system,
morals, health, rights and lawful interest of other persons and to ensure the defense of
the country and the security of the State”.
3.7.2 Religion in Russia and Legal Implication
In prerevolutionary Russia the orthodox Christian faith was the dominant,

official State religion. All other faiths were either persecuted or simply “tolerated”.
Citizens were not free to profess any religion they wished. Conversion from one faith
to another was difficult, except conversion to orthodox Christianity, which was
encouraged.296
The Russian Orthodox Church, as the dominant Church, enjoyed advantages

and privileges that were denied to the other religions. The head of the Russian
Orthodox Church was the tsar himself. This subordination of the Church to the tsar
was reflected in the basic laws of the State, which formulated the role of tsar in
relation to the Church as: “the Emperor, as a Christian monarch, is the Supreme
defender and guardian of the dogmas of the dominant faith and the patron of the true
faith and of all the sacraments of the Holy Church”.297
Freedom of conscience was declared a constitutional principle during all the

years of the Soviet era; however, this freedom always had a fictitious nature. The
rights of religious organizations were restricted, the anti-religious propaganda was
state policy, believers were excluded from Government service, clergymen were
repressed and houses of worship demolished. Among the sources of law determining
the legal position of religion in the Soviet Union was a Decree on the separation of
Religion from the State signed by Lenin in 1918. This Decree was in force until 1990.
More detailed regulations were contained in a decree of April 8, 1929, amended in
1932 and 1975 and an instruction made under it, released in 1929 and reissued in
1931.298 Numerous all-union regulations on State supervision of religious
organizations were in effect, but many of them were unpublished. The State
regulations applied to all denominations uniformly.299
296
G. Spasov, Freedom of Religion in the USSR 3 (USSR Information Bulletin, December, 1951).
297
Ibid.
298
V.I. Lenin, KPSS O Religii (V. Lenin and CPSU on Religion), Politizadat, Moscow, 1982. Quoted
from Supra note 296 at 1
299
Ibid.
290
The Gorbachev political reforms of Late 1980s were accompanied by a
movement to restore freedom of religion. In 1988, the Soviet State celebrated the
1000th anniversary of the introduction of Christianity into Russia.300 In December
1988, the President Gorbachev, in an important speech to the General Assembly of
the United Nations, promised that new Soviet legislation on freedom of conscience
would meet the highest legal standards.301 In 1989, the new popularly elected USSR
Parliament included clergy among its members as well as lay persons previously
persecuted for religious activities. After widespread discussion, new laws on freedom
of religion and the rights of religious organizations were enacted in 1990, both in the
USSR and in the Russian Federation.302
In October 1990, both the USSR under President Mikhail Gorbachev and the
Russian Soviet Federative Socialist Republic (RSFSR) under Boris Yeltish (at the
time, Chairman of the Russian Parliament or Supreme Soviet) adopted new laws on
freedom of conscience and religious organizations.303 These laws revoked the
draconian 1975 “Brezhnev” legislation on religion, which had incorporated much of
the 1929 “Stalin” law, whose implicit purpose had been to eradicate all religious
“survivals” from Soviet territory.304
While the two 1990 laws – adopted a year before the final collapse of the
USSR – contained flaws, they generally embraced an American – style approach to
Church – State relations. In the aftermath of the adoption of the two laws, something
roughly approximating freedom of religion as we understand it the United States came
300
Available at www.christianitytoday.com/history/issues/issue-18/soviet-union-celebrates-1000-
years-of-christianity.html; accessed on 30-08-2016
301
Gorbachev‟s speech to the U.N. December 7, 1988, 43 rd U.N. General Assembly Session
December 7, 1999; available at http://astro.temple.edu/~rimmerma/gorbachev_speech_toUN.htm;
accessed on 30-08-2016
302
Supra note 291 at 3
303
For the USSR law, signed by Mikhail Gorbachev on 1 st October 1990, see “osvobode sovesti I
religionznykh organizatsizatsiyakh”, Pravada, 9 October 1990, 4; for the RSFSR law, signed by
the first deputy chairman of the RSFSR Supreme Soviet, Rusian Khasbulatov, on 25 October
1990, See “o svobode veroispovedami”, Sovetskaya Rossiya, 10 November 1990, 5. Quoted from
John B. Dunlop, Russia‟s 1997 Law Renews Religious Persecution, Demokratizatsiya 28;
available at http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/07-
01_dunlop.pdf accessed on 2-09-2016
304
For the 1929 law (as amended in 1932), see “Laws on Religious Associations of April 8, 1929” in
the Apendix to Richarch H. Marshall et. al, (eds.), Aspect of Religion in the Soviet Union 1917-
1967. 438-445 (University of Chicago Press, Chicago, 1971); For the 1975 law, see Religious
Persecution in the Soviet Union: Hearings before the sub – committees on International
organizations of the committee on International Relations, House of Representatives, Ninety –
Fourth Congress, June 24 and 30, 1976 (U.S. Government Printing Office, 1976); Quoted from
John B. Dunlop; Ibid.
291
into existence in the Russian Republic, which had become an independent State in
December 1991.305 Parishes of several orthodox ecclesiastical jurisdictions in direct
competition with the official Russian Orthodox Church (or “Moscow Patriarchate”)
were legally established, and Roman Catholics and numerous protestant groups were
able legally to expand their activities. Even religious organizations representing what
Russian political leaders today refer to as “totalitarian sects” – Mormons, Hare
Krishna, the Unification Church, Jehovah‟s witness, Baha‟i, and so forth – were able
to develop their activity relatively unhindered.306
By summer 1997, the alliance of the Moscow Patriarchate, the communists,

and the zhirinovskiites had managed to achieve a decisive victory. A new restrictive
law on Freedom of Conscience and Religious Associations was passed on 23 June by
the State Duma, the lower house of Parliament, by an overwhelming majority: 300
votes in favor, with a mere eight votes against.307 In similar fashion, on 4th July 1997,
the Federation Council, the upper chamber of Parliament, also gave the law
overwhelming support: the vote was 112 in favor, four against, with one abstention.308
The Governor of Kaluga oblast; a member of the Federation Council, instated that the
new law was needed to „protect society from the massive expansion of pseudo-
religious cults and organizations, which through their proselytizing endanger
individual rights and freedoms and the health of citizens‟.309
The religious law of 1997 regulates the legal relations in the sphere of the
rights of man and of citizens to freedom of conscience and freedom of creed, as well
as the legal status of religious associations. The law establishes that nothing in the
Russian legislation may be interpreted in such a way as to result in lowering or
infringing the rights to freedom of conscience, and declares legal status of Russian
citizens, foreign citizens, and person without citizenship to be equal in their right to
freedom of creed. Following the constitution, the law prohibits the establishment of
privileges or restrictions, or other form of discrimination on the basis of one‟s attitude
towards religion. The confessional secrecy is also protected by the law. It states that a
clergyman may not be taken to account for refusing to provide testimony about
305
John B. Dunlop; Ibid
306
Ibid
307
Ibid at 30
308
Ibid
309
Ibid
292
circumstances which became known to him from a confession. However, the
collaboration of a clergyman which the State authorities are not restricted, and
previously existing legal prohibitions against interrogating or summoning a
clergyman have been lifted.310
Despite Russian Constitutional provisions for a secular State with equal legal
Status for all religions, the preface to the 1997 religion law refers to Islam, Judaism,
Buddhism and especially orthodox Christianity as “traditional” faiths. As of the start
of the 2012 school year, public school children must choose between courses on
orthodox Christianity, Islam, Judaism or Buddhism; world religion; or secular ethics.
Atheists and agnostics have objected to these compulsory courses, other groups view
them as divisive, and some minority communities have expressed concern about
biased teachers and text books. Russian officials and police make negative references
to protestant, Hare Krishna, and Jehovah‟s Witness, adding to an intolerant climate
that has led to discrimination, vandalism, and violent hate crimes against religious and
other minorities.311
In June 2011, a public prosecutor in the Siberian town of Tomsk filed suit to
aid a version of the Bhagvad Gita, a text sacred to Hindus across the world to federal
list of banned extremists‟ literature.312 The translation in question, Bhagvad Gita, as it
is, contains commentary on the Bhagvad Gita and is revered by the International
Society for Krishna Consciousness (ISKCON) (also commonly known as Hare
Krishna).313 The move came as a result of a Federal Security Services (FSB)
commissioned study conducted by academics at Tomsk State University which found
that the book “contains signs of incitement of religious hatred and humiliation of an
310
Peter Roudik, “Church Autonomy in the Russian Federation” 4; available at http://www.uni-
trier.de/fileadmin/fb5/inst/IEVR/Arbeitsmaterialien/staatskirchenrecht/europa/conference_1999/ro
udik.pdf; accessed on 02-09-2016
311
U.S. Commission on International Religious Freedom, Annual Report, 2012, “Russian Federation”
316-319 (Washington 2012), available at http://www.aina.org/reports/uscirf2012.pdf; accessed on
02-09-2016.
312
Abhai Maurya, Russian kick up an unholy row over holy book, The Times of India, December
2011; available at http://www.timesofindia.indiatimes.com/india/Russian-kick-up-an-unholy-row-
over-holy-book/articleshow/11201253.cms; accessed on 02-09-2016
313
Ibid
293
individual based on gender, race, ethnicity, language, origin, or attitude to
religion”.314
The accusations provoked large scale outrage both in India and in Russia.
Indian Ambassador to Russia, Ajai Malhotra, called the ban “absurd, burdening on the
bizarre”, and explained that the Bhagvad Gita was first translated int. Russian in 1788
and was “not merely a religious text”, but also “one of the defining treaties of Indian
thought.”315 In an effort to abate the criticism, Russia‟s foreign minister explained that
the lawsuit was not against the Bhagvad Gita itself, but its preface.316 The
commissioner for Human Rights for the Tomsk region also spoke out in favour of the
book.317 Meanwhile, widespread protests led to rallies held outside of the Russian
consulate and even to the shutdown of the Indian Parliament.318
In hearing before the Court, the experts study was challenged, and when the
writers of the study were brought for a second hearing, the denied that their opinion
had been given in their official capacity. They also did not, contrary to their written
opinion, support the movement to ban the book for “subversive or extremists
content.”319 In addition, it is likely that the prosecutor was an activist with an agenda
against ISKCON. The judge then ordered a subsequent study by expert at Kemerovo
State University which also found that the book contained “propaganda arguing for
the intellectual and social inferiority of individuals in relation to promoting the
religious values of the Bhagvad Gita.”320 As a result, the judge sought input from the
Russian Human Rights Committee and postponed the final verdict.321 After Human
Rights committee spoke out against the ban, the judge finally dismissed the charges
against the Bhagvad Gita on December 28, 2011.322 After the lower court in Tomsk
314
“The text had previously been challenged in Moscow, but charges of extremism were dismissed”;
Bureau of Democracy Human Rights and Labour, U.S. Deptt. of State; International Religious
Freedom Report 8-9 (2011), Quoted from Daniel Ortner, “Conscientious offenders: Russia‟s Ban
on „Extremist‟ Religious Literature, and the European Court of Human Rights” Vol. 56:1, Virginia
Journal of International Law 148 (2016).
315
India asks Russia to Resolve Bhagvad Gita Issue, The Economics Times, Dec. 22, 2011.
316
Ibid
317
318
Ibid
319
Supra note 312
320
321
As Hindu Rally, Russia Court Defers Gita Verdict, India Times, Dec. 20, 2011.
322
Preetika Rana, Russia dismissed Bhagvad Gita ban, The Wall Street Journal; available at
http://www.blog.wsj.com/indiarealtime/2011/12/28/russia-dismiss-bhagvad-gita-ban; accessed on
03-09-2016.
294
dismissed the suit, prosecutor appealed the dismissal with a regional prosecutor
explaining that certain paragraphs “could be seen as promoting extremism” and that
the effort to ban the commentary was not meant to be an attack on Hindus.323
Nevertheless, the Higher Court of Tomsk dismissed the appeal and upheld the lower
court‟s ruling in favor of the book.324
Fortunately, a combination of immense public pressure and criticism

prevented the implementation of the ban in this case. Still, despite the outcry, little has
been done to reform the system in Russia that allowed a thousand – years old work,
central to the religious life of millions across the world, to be put on trial. Indeed, as
part of a recent surge of laws restricting religious freedom, freedom of speech and the
right to assembly in Russia, the contrary has actually strengthened its laws against
„extremism‟.
On the present scenario of law and religion in Russia, United States

Commission on International Religious Freedom mentions:325
Along with other human rights abuse violation of religious freedom in

Russia escalated in the past year. There were numerous criminal
convictions fines, and detentions, particular of Muslims and Jehovah‟s
witnesses, under an extremism law that does not require proof of the
use of advocacy of violence. The constitutional court ruled that
material can be banned as “extremists” for proclaiming the truth or
superiority of one religion or belief system. Other laws including the
recently amended 1997 religion law and a governing number of harsh
laws restricting civil society limit the freedoms of religious groups and
lead to abuses. An atheist was charged with blasphemy under a 2013
law (Russian Federal Law N 136-F2 (“Blasphemy Law”) from 29 June
2013), and was on tral at the end of the reporting period. Rising
xenophobia and intolerance, including anti-semitism, are linked to
violent and lethal hate crimes that often occur with impunity. Russian
323
Bhagvad Gita issue: Prosecutor wants „extremist Russian comment banned, The Economics
Times, Feb. 16, 2012.‟
324
Ibid
325
United States Commission on International Religious Freedom, Annual Report, 2016, p.191,
available at http://www.uscirf.gov/sites/default/files/uscrif%202016%20annual%20report.pdf,
accessed on 04-09-2016.
295
officials and local Parliamentary in Chechnya and Dagestan commit
often violent religious freedom violations. Religious freedom
violations also escalated in Russian – occupied crimea and Russian
separatists regions of eastern Ukraine. Based on these concerns, in
2016 United States Commission on International Religious Freedom
(USCIRF) again places Russia on Tier 2, where it has been since 2009.
Given Russia‟s negative trajectory in terms of religious freedom,
USCIRF will continue to monitor the situation closely during the year
ahead to determine if Russia should be recommended to U.S. State
Department for designation as a “country of particular concern”, or
Co-operative Patent Classification (CPC), under the International
Religious Freedom Act (IRFA) for systematic, ongoing, egregious
violations of religious freedom.
The freedom of individuals and communities to practice their religious or non-

religious beliefs is a pre-condition for peace and security, for social development and
for the strengthening of democracy and civil society. When freedom of religion and
belief is restricted, other human rights are often restricted as well, and the State or
civil society may feel entitled to commit offences against the person. The
international community‟s inconsistency in responding to blasphemy laws or to
offences to religious sentiments or in not responding at all to violations of religious
freedom has led to inconsistencies in the interpretation of religious freedom.
International human rights conventions unambiguously define religious freedom as an
individual freedom. Human right does not apply to religious or communities per se,
but to individuals.
Consider a profound paradox of our age: at the very time that the value of
religious freedom is becoming manifest, the international consensus behind it is
weakening, assaulted by authoritarian regimes, attacked by theocratic movements,
violated by aggressive secular policies, and undermined by growing elite hostility or
ignorance. Indeed, not only do we see widespread violations around the world, but
looming threats in the west that jeopardize previous gain.326
326
Allen D. Hertzke, “Religious Freedom in the World Today: Paradox and Promise” available at
http://www.pass.va/content/dam/scienzesociali/pdf/acfa17-hertzke.pdf; accessed on 03-09-2016.
296
The right to freedom of religion undergirds the very origin and existence of
the United States. Many of our nation‟s founders feed religious persecution abroad,
cherishing in their hearts and minds the ideals of religious freedom. This is
established in law, as a fundamental right and as a pillar of our nation, the right to
freedom of religion. Even, from its birth to this day, the United States has prized this
heritage by standing for religious freedom and offering refuse to those suffering
religious persecution.
3.8 Influence of World’s Religions on Indian Ethos and vice versa
From the earliest times, Indian culture had attracted the attention of Western
travellers and scholars. The impression of India created on foreigners varied from
admiration to evulsion. In his introduction to The Wisdom of India, an anthology of
ancient sacred text, Lin Yutang, a Chinese scholar living in the United States,
observes that:327
India was China‟s teacher in religion and imaginative literature and

world‟s teacher in trigonometry, quadratic equations, grammar,
phonetic, Arabian nights, animal fables, chess, as well as in religion
and philosophy…..She inspired Boccaccio, Goethe, Herder,
Schopenhauer, Emerson an probably also Aesop.
Justice Krishna Iyer observed “Atheistic humanism and agnosticism also are
not alien to the pages of Adappur”. Do read his counsel to Christians:328
Our comparative survey of the cultures of India and the West has
revealed several areas of contrast and convergence. The past
relationships among the people of different religions have often been
strained by suspicion, rivalry, and even hostility. In their place, a new
spirit of mutual respect and dialogue is now growing. This emerging
pattern of relationship can play a vital role in promoting interfaith
understanding and human solidarity.
327
Quoted from Jt. V.R. Krishna Iyer, Legally Speaking 308 (Universal Law Publishing Co. Pvt. Ltd.,
New Delhi, Reprint, 2005)
328
Id at 310
297
Hinduism as we have seen is a vast and variegated cultural complex
covering divergent or at times even contradictory beliefs and practices.
In many ways, however, it embodies man‟s insatiable quest for
meaning and for truth. An open and sincere dialogue between
Hinduism and Christianity can contribute enormously towards cultural
growth and human progress.
The story of the global dispersion of Indian ideas, culture, and people, only
sketched here, suggests a number of implications. It is clear, for example, that religion
is now transnational. No longer is “East and West.” Hindus, Muslims, Sikhs, and
Buddhists have become the neighbors of Christians and Jews. Muslims, for example,
are the second largest religious population in France and are as abundant in the United
States of America as are Jews. Hinduism is not confined to India and to Indians;
Buddhism, with its active publishing agencies in the United States of America and the
concomitant construction of stupas and meditation centers is stronger in the United
States of America than it was in its first century in China, where it became the “State
religion” within centuries.
Contacts between India and the Mediterranean world were numerous in

ancient times. Since 975 BCE when the Phoenicians traded with Western India,
contacts increased between the two arenas. The Persian Empire served as a mediating
agency, once Darius initiated contact with India around 510 BCE.329 “There are hints
that some Indian influences were known in the Greek world by the fifth or sixth
century BCE. Herodotus (born in 484 BCE), for example, knew something of India
though he was given to some overstatement: India had enormous wealth, was given to
extreme forms of religion, etc. These perceptions may have been learned from one of
his “neighbors” – one Scylax of Caryanda, who had been sent to India by Darius”.330
It appears that Indian soldiers had participated in the Greek invasion of Persia in 480
BCE and Greek officials were appointed to serve throughout the empire, including
India. There are some hints that Indian ideas were known in the classical Greek world.
Pythagoras (born in 580 BCE), for example, who lived in cosmopolitan Samos,
329
Much of the following discussion of contacts in classical times is derived from H. A. Rawlinson,
“Early Contacts between India and Europe” in A. L. Basham (ed.), The Cultural History of India
425–443 (Oxford: Clarendon Press, 1975).
330
Id at 426.
298
shared ideas of reincarnation also found on the subcontinent. Plato and Empedocles
similarly entertained notions of metempsychosis. Were these results of contacts or
coincidence? It is hard to say; however, one Greek writer, Eusebius, claimed that
certain learned Indians, presumably Buddhist or Jain, had visited Athens and
conversed with Socrates.331
After Alexander, contacts increased. Not only did influences come into the
subcontinent, during the time of the Mauryas, Kusanas, and Bactrians; they went out
as well. Ashoka sent emissaries into cities in the Greek world and subsequently one
finds small settlements of Indians in such cosmopolitan cities as Alexandria, Antioch
and Palmyrah. By the end of the first century CE, Alexandria was a major port where
one-half of the world‟s ships were said to dock, and there is relatively frequent
reference to Indians living in the city, more than likely Buddhist or Jain as orthodox
brahmans may have been reluctant to cross oceans into unknown (and from the
standpoint of brahmanic cosmography, profane) spaces. Similarly, Antioch and
Palmyrah – a city in the desert near the Red Sea, which was an important trading
center from 130–273 CE – would have hosted merchants and/or teachers from India.
Indeed H. A. Rawlinson argued that specific Middle Eastern figures may have had
Indian teachers: Appollonius of Tyana (about 50 CE) is said to have gone to Taxila to
study under brahmans. Bardesanes, a Babylonian gnostic, is said to have learned from
an Indian embassy official during the years 218–22 CE. Plotinus, the founder of Neo-
Platonism, is thought to have accompanied an expedition into Persia in 212 CE
apparently hoping to meet Indian teachers. Clement of Alexandria mentions Buddha
in his writings and Basilides, an early second-century gnostic teacher and Hellenized
Egyptian, are thought to have been influenced by Indian thought.332 While many of
these specific contacts remain speculative, it is at least plausible that some forms of
Middle Eastern Gnosticism were influenced by Buddhism.
By 762 CE Baghdad had replaced Alexandria as a major cultural center.

Under the fourth and fifth „Abbasid‟ Caliphates, scholars were brought to the city
from all over the world. The sciences brought from India included aspects of
astronomy, medicine, and math (the “cipher” and “Arabic” numerals are said to have
their origins in India). Literature and folk stories informed Arabic and eventually
331
Id at 429.
332
Id. at 435-436.
299
European cultures. The Panchatantra, for example, that anthology of Indian folk
tales, was translated into Pahlavi in the sixth century and thence into Arabic (c. 750),
then into Persian, Syrian, Hebrew, and Spanish. A German version (1481) was one of
the first printed books in German, and translations into Italian and English followed.
Among the themes in “European” stories that may have had Indian origins are talking
beasts; Sinbad the Sailor (found in the Arabian Nights with many Indian references);
the princess and the pea; and many others. One intriguing story that appeared by the
fifth century in Greek is that of Josaphat, a young Christian prince who renounces the
world to become an ascetic. Translated into several European languages by the
sixteenth century, it appears to be based on the story of the Buddha as found in the
Lalita Vistara, albeit now the prince is in Christian guise.333
The colonial period the coming of the Portuguese and other European colonial
powers to India, in addition to the impact it had on the subcontinent, also spawned
considerable interest in Europe about India.334 Travel reports and literature stimulated
and perpetuated this intrigue, obviously filtered through European lenses. Goa, for
example, became a center for European visitors and one of the earliest reports was
that of Camoens (1525–80), who romantically described Vasco da Gama‟s landing
post facto. Thomas Stephens, an English Jesuit living in Goa as of 1575, wrote a
grammar in Konkani; a poem Kristana Purana (the Purana of Christ) was written by
an admirer of the Marathi language. Van Linschoten, a guest of the archbishop in Goa
from 1583–89, wrote a rather sensitive report, entitled “Itineratio,” which was
published in 1595.335 The Mughal court had a variety of European visitors. One of the
earliest, an Englishman named Fitch, returned to England with such glowing reports it
prompted the East India Company to request permission to set up a factory in Surat in
1608. Two East India Chaplains (Lord, 1630 and Ovington, 1689) reported on Surat.
That and other travel literature influenced the poetry of John Milton. There were
resplendent descriptions of the Mughals by Dryden (1675), Tavernier and Bernier
(1684), and others.336 Perhaps the most important development during the Mughal
period was the translations by Dara Shikoh into Persian. The translations of fifty-two
333
Id. at 436.
334
Much of the following is condensed from F. Wilhelm and H. G. Rawlinson, “India and the Modern
West” in A. L. Basham (ed.), The Cultural History of India 470–486 (Oxford: Clarendon Press,
1975).
335
Id. at 470.
336
Id. at 471-472.
300
Upanisads were completed in 1657, and then translated into French by Duperron in
1801.337 These translations were presented through Islamic scholars, and these
translations attracted a large number of European scholars to study the Indian
languages, religious thoughts and varied cultures. One cannot trace all these strands,
but it may be worth noting that the study of Sanskrit and Sanskrit texts was inevitable
for the European scholars to grasp the essence of religious ethos of India. For
generations it was thought (with a very Protestant assumption) that the quintessence
of Indian religion lay in its texts. Accordingly, the first rendering of a Sanskrit work
in English was Charles Wilkins‟ translation of the Bhagavad-Gita in 1785. William
Jones (1746–94) followed with translations of Kalidasa‟s play Shakuntala and the
Laws of Manu. It is believed the study of Sanskrit was actually introduced into
Europe by Alexander Hamilton, an official in the East India Company detained in
Paris during the Napoleonic wars.338 One of his students was Van Schlegel, who
published in German, “On the Language and Wisdom of the Indians,” a text which in
turn helped fuel German romanticism and, at least indirectly, the thinking of
Schopenhauer, Kant, Schiller, Goethe, Herder, and Schleiermacher. The race, one
might say, was on. Interestingly, the first novel in English about India was a relatively
sensitive one. Hartley House, Calcutta, published in 1789, was written by an
anonymous woman in the form of a series of letters back home. 339 The novel
describes the life of the powerful in Calcutta and proved to be relatively sympathetic
to Hinduism. The explosion of Europeans‟ interest in India in the nineteenth century is
too extensive to recount in this context: it proved to be a wide spectrum in both
discipline and attitude. Some of the early pioneers in Buddhist studies, for example,
included Barnouf, Lassen, Rhys David, Stcherbasky, and Trenchner among others.
Invariably these scholars read into Buddhism and its notion of nirvana their own
prejudices and value systems.340 Archaeologists included Cunningham (whose
interpretations of the Ayodhya shrines are believed to have helped sour Hindu–
Muslim relations) and, somewhat later, the work of Marshall and Wheeler in the Indus
Valley. French intellectuals who showed a fascination for India included Lamartine,
Hugo, and de Vigny. Writers on India include Hesse whose novel Siddhartha was a
westernized and romanticized story of Buddha. Leo Tolstoy (1828–1910) was
337
Id. at 473.
338
Id. at 474.
339
Id .at 473.
340
Guy Welbon, The Buddhist Nirvana and its Western Interpreters (University of Chicago Press,
Chicago, 1968)
301
influenced by the doctrine of ahimsa and, in turn, influenced Gandhi‟s interpretation
of the same. Romain Rolland (1866–1944) romanticized India‟s nineteenth-century
reformers. E.M. Forster‟s „Passage to India‟ took the British colonial system and its
attitudes toward Indians to task, while Rudyard Kipling‟s novels, based on a boyhood
spent as part of the British Raj in India, glorified the very life. Forster critiqued of
America‟s fascination with India, while not as long as Europe‟s, nonetheless goes
back at least a couple of centuries to the time of the Transcendentalists. Ralph Waldo
Emerson read translations of Sanskrit, Pali, and Persian literature which informed his
Unitarian vision, while David Henry Thoreau found Indian ideas spiraling through his
own reflections. By the mid-nineteenth century, the United States‟ interest in India
had reached a peak. Over half of the ships in Calcutta harbor were from the US. The
completion of the rail, and road across the United States was hailed by Walt Whitman
as a “passage” to India. Whitman gave further voice to this romanticism in his
„Leaves of Grass‟ where he describes India as the source of “primeval thought,”
“reason‟s early paradise,” the “birthplace of wisdom”, and the home of “innocent
institutions” and “fair creation.”341
India is a multi-cultural, multi-religious and multi-caste society. It has been so

from times immemorial. India has always kept her doors open to people of any
religion and assimilated them into its main stream. India has also been the birth place
of religions like Buddhism, Jainism and Sikhism. Thus, it can be said that India was a
secular country in the past when her citizens were not only free to follow any religion
but also respected the choice of others in following their own religions: this secular
State was established despite there being no laws to ordain so.
In India, various contending religious groups have vied to present a view of

the cosmos, divinity, human society and human purposes more compelling and more
authoritative than others. One finds such all – encompassing visions presented in
many Hindu texts or groups of texts at different periods of history: the Vedas, the
epic, the Puranic theologies of Vishnu and Shiva, the medieval texts of the bhakti
movements, and the formulations of synthetic Hinduism by modern reformers. The
religious historians may identify these as the paradigmatic formations of Hinduism of
341
Milton Singer, When a Great Tradition Modernizes 23–24 (Praeger Publishers, New York, 1972)
302
their respective times. Yet such visions have never held sway without challenge, both
from within and from outside of Hinduism.342
The most serious challenges to Hindu formations have come from outside,
from the early “heterodoxies” of Buddhism and Jainism, medieval Islam, and from
the missionary Christianity and post – enlightenment world views of the colonial
British. These challenges have been linked to shifts in the political sphere, when
ruling elites have favored non – Hindu ideologies with their patronage and prestige. In
each case, such fundamental provocations have led to important changes within the
most prevalent forms of Hinduism.343
The western origin of the conception of the secular state has given rise to some
serious questions. Hindu leaders object that the secular state in the West was the result
of the failure to solve the religious problem. Since the religious problem had been
solved successfully in India, the secular state today is a western importation with no
real relevance to India's needs.344 The secular state in the West was the answer to a
twofold problem. First, separation of Church and state in Europe was in part an
arrangement to curtail the political power of the ecclesiastical hierarchy. But religious
authority in India never attempted to usurp the powers of the secular authority; there
is no Indian parallel to the struggle between pope and emperor, Church and State,
which occupies such a large part of the history of Europe. Second, the secular state in
the West was found to be the best guarantee of the preservation of religious liberty.
By the separation of Church and State the coercive power of the latter could not be
used to enforce religious conformity. By denying to government the right to interfere
in religious matters, the freedom of religion of the individual and the dissenting
church could be assured. At this point also, the secular State in India is the solution to
a non-existent problem. The Hindu State was always tolerant of religious differences,
and there was never any attempt to enforce uniformity in religion. The freedom of
religion of the individual in the traditional Hindu State was practically unlimited.
With respect to the first objection, the desire to restrict the political power of the
342
Richard H. Davis, “Introduction – A Brief History of Religions in India” in Donald S. Lopez, Jr.
(Ed.), Religions of India in Practice 7 (Princeton Readings in Religions, Princeton University
Press, New Jersey, 1995).
343
Ibid
344
This thesis was propounded in an interesting lecture by Professor M. A. Venkata Rao, President of
the Mysore state Jana Sangh, in Bangalore in May 1961. Parts of this argument have frequently
been used by Hindus of other political persuasions who regard the secular state in India as a
regrettable necessity at best. See supra note 84 at 159.
303
church was a factor in the separation of Church and State in France, but had little to
do with this development in the United States. It can be readily admitted that this
objective has no relevance to the Indian situation. As far as freedom of religion is
concerned, however, the secular state is of undoubted importance, in India as in any
other country. Even under the present Constitution, the powers of State interference in
the internal affairs of religious institutions are considerable. Corporate freedom of
religion would certainly suffer if the state were legally connected with Hinduism, in
which case one could expect the creation of a State Ecclesiastical Department with
vast powers of control over Hindu temples and maths, and probably over Muslim,
Christian, and Sikh institutions as well.345
These objections to the secular state are based on the broad sweep of Indian
history starting with Vedic times, but they conveniently overlook the last thirty years
of the Hindu-Muslim communal problem. This too, unfortunately, is a part of Indian
history, and the secular State is surely an important part of the solution to this
problem. In view of the bitter communal suspicion and hostility which led to the
partition of the country, and the continued existence of large minorities, it is
impossible seriously to claim that the secular State has no relevance to India's real
problems. By refusing to identify the State with any particular religion, the equality of
the individual citizen and the equal protection of all faiths are secured and
confirmed.346
In the end we would restate that all religions agree on the first, i.e., as to the
Deity being the agent of the revelation. But the role of personal experience, through
which that revelation is received, is given less importance in the prophetic religions
than in the more mystical Hinduism. For example, in Christianity the content of
revelation as Jesus being the Christ or son of God, is given much greater importance
than Jesus‟s own inner experience, in and through which that conviction must have
arisen. Similarly, in Islam there is even less reference to the revelatory experience of
Muhammad, while the greatest importance is attached to what that experience
revealed i.e., the unity and supremacy of Allah.347 These different conceptions have
given a complex experience to Indian religious scenario.
345
346
Ibid
347
Sarla Jhingran, The Roots of World Religions 9 (Books and Books, New Delhi, 1981).
304

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CHAPTER-III

COMPARATIVE STUDY OF LAW AND RELIGION IN

Observing with increasing interests of the society it is pertinent each creature

It appears to me, that if we consider the improvement of human

In contemporary societies, religion is often associated with a particular moral

Is there any cultural endeavor more ubiquitous then religion? It hardly

3.2 Law and Religion in United States of America

That perceptive French visitor, Tocqueville, wrote in 1831:15

His observation is instructive. American society, in its evolution, bore the

3.2.1 The General Study of American Religion

If we would have a thorough knowledge of the spirit and character of the

About the middle of region of that Great Princess Elizabeth, Queen of

5. That whatsoever shall disparage a minister without bringing sufficient proof to

Forasmuch as in a well goverened xpian commonwealth matters

Whatsoever p‟son……..shall……..call or denominate any

The Church of England continued to be the established Church of Virginia;

In the frame of Government of Pennsylvania, prepared by the proprietor,

On the tenth of May, 1776, the delegates of thirteen original colonies,

There appears to have been no formal provisions made by the Government of

Out of that turmoil was coming, a statement of a principle that was to

No religious test shall ever be required as a qualification to any office

Besides this provision the Constitution guarantees Fundamental Rights of

Congress shall no law respecting an establishment of religion, or

Because no mention of the Supreme Being, or of the Christian religion, is to

3.2.3 States Constitution and Religions Liberty

The circumstances and constituents of the national Government necessitated

The Pennsylvania Constitution adds a safeguard against religious

Nor can any who is conscientiously scrupulous of bearing arms; be

The Constitution of New Jersey gave exemptions from religious taxes,

Nor shall any person………ever be obliged to pay tithes, taxes, or any

The Georgia Constitution, however, was more generous towards religious

The free exercise of their religion; provided it is not repugnant to the

The ratification of the fourteenth amendment elevated new questions as to

3.2.4 The Relationship between Church and State: Wall of Separation

Historically, State - Church relations have been a significant source of political

Many Americans believe that there is and ought to be a wall of separation

A great many of the early American settlements were formed by dissident

At the outbreak of the American Revolution in 1775 there were

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury,

The concept of neutrality itself is “a coat of many colors”, 80 and three

Jefferson‟s “Wall of Separation” - a strict interpretation of Church -

It is pertinent to quote the words of John F. Kennedy:85

Finally, I believe in an America where religious intolerance will

3.3 Law and Religion in United Kingdom

The United Kingdom is a rare example of a democracy without a written

3.3.1 Religion in United Kingdom

The Church of England is the officially established Christian Church in

There is no central register of religions in England, nor is there any official

3.3.2 State-Church and Secularism

The highest aim of mankind is eternal happiness. To this chief aim of

In England the established Church is Erastian, with the Monarch as its

The United Kingdom has been a signatory to the European convention on

The labor Government in 2009-10 amalgamated various pieces of

3.4 Law and Religion in France

3.4.1 Nature of the Constitution of France

France has been described as a laboratory of political experiments. In the field

The French people solemnly proclaim their attachment to the rights of

Further Article 1 reads:

France shall be an indivisible, secular, democratic and social republic.

Development of the Constitution in France, led to a clear conception of the

3.4.2 Law, State and Religion in France

In 1789 the representatives of the French people, constituted as a National

The development of ideas which ultimately found expression in the passing of