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Le mariage et les groupes minoritaires

According to the Belgian Criminal Code, it is illegal to grant a nuptial blessing before the celebration of the civil marriage (see article “Precedence of civil marriage”). The offence in no way excludes groups that are found in the minority or even socially challenged groups, nor does it hinder specific matrimonial ritual practices, whether strictly or non-strictly tied to the forms of “blessing” offered in the major religious traditions. Moreover, case law has shown, from the outset, a tendency to interpret the notion of “blessing” in a broad manner (despite the criminal nature of the text) : thus, to assimilate the concept of “blessing” with the mere inclusion in a religious register (see in particular Cass. 26 December 1876, Pas. 1877, I, 46, and in this sense the response of the Minister of Justice to the Senate, on 13 October 2005, to a request from Joris Van Hauthem for explanations on “the concept of religious marriage”, no. 3-998, Annales, Sénat, 3-127). However, it is indeed the notion of a “minister of worship” that defines the perpetrator of the offence. Would this be the case for Scientology Ministers, by way of analogy with the recent positions of the United Kingdom Supreme Court ? There appear to be indications of a broad interpretation in Belgium too on this point. For instance, since 1993, certain Belgian public prosecutors have considered this provision applicable to secular marriage rites, so long as these do not take place significantly after the civil ceremony. The underlying reasoning is to assimilate, following their being equally included in the Constitution, non-denominational philosophical organisations and confessions. Public recognition, not required by Art. 267, was in this case the assimilating factor for the figures of secular delegates and religious ministers, without raising the question of the relationship with divinity. When asked in the Chamber about the advisability of such proceedings, the Minister of Justice replied on 13 November 2003 that the mere presence of a lay delegate during the civil ceremony did not in her view imply a breach of Article 267 (Summary Report, House of Representatives, Justice Commission, CRABV 51 COM 056 p. 17). Would the same thus be true of the mere presence of a minister of a denomination, including a scientologist, in the municipal wedding hall ? In the absence of legal recognition, the notion of worship is defined as a reasonable reference to popular usage and common sense, which thus contributes to shaping a local understanding of the different movements. How can we interconnect them with considerations born in other places, though ? While the case law of other European States do not have a direct influence on the Belgian qualification of scientologist marriage, they most definitely contribute to influencing a factual appraisal of transnational movements. Failing to establish that Belgian Scientology practices would be of a radically different nature or perception, assimilation to a religion and a religious marriage, carried out in a foreign State, without having extraterritorial legal effects, could strengthen certain factual probative assessments in Belgium...

D 3 novembre 2015    AStéphanie Wattier

CNRS Unistra Dres Gsrl

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