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Decision no. 669/2014 by the Constitutional Court of Romania

The decision of 12 November 2014 by the Constitutional Court of Romania has reignited debates on the status of the hour of religion in state schools. In its decision no. 669/2014 (in Romanian), the Court acknowledged that art. 18 para. 2, the first sentence of the Law on National Education no. 1/2011, was unconstitutional: “At the written request respectively of the pupil of adult age, of the parents or the legally appointed guardian for a minor, the pupil may be exempted from attending religious education classes”. This article obliges pupils who do not want to follow religious education classes, which are compulsory in Romania and part of the common core, to submit a written request to this end.
In its reasoning published in the Official Journal of 23.01.2015, the Constitutional Court judges specify that the way in which lawmakers have regulated the educational provision with regard to the subject of religion is likely to impact freedom of conscience. They suggest that the written request is to be submitted by those wishing to follow courses in religion and not by those who intend to opt out of such courses: “Expressions of opinion in the light of the constitutional provisions relating to freedom of conscience and religion applicable in the area of religious education must always be framed positively (a person chooses to study the religion) and not negatively (a person chooses not to study the religion), because in the latter case, the person is already regarded as expressing their choice to study and is being forced to act later in order to be excluded from the study group. In this way, such a regulation constrains the person to express an option, something which is in itself contrary to the freedom of conscience sanctioned by the Constitution”.
In order to reconcile the Law on National Education with Decision no. 669/2014 by the Constitutional Court, on 18 May 2015 the Senate (decision-making chamber) amended art. 18, para. 2 as follows: “To sign up a pupil for religious education classes, a written request must be submitted from, respectively, the pupil of adult age, their parent(s) or legally appointed guardian for pupils who are minors. Modifying this option is also possible by written request from, respectively, the pupil of adult age, their parent(s) or legally appointed guardian for pupils who are minors. If the pupil does not take part in religious education classes, school results will not take into account the subject of religious studies. The same applies to the pupil who, for objective reasons, has not been able to attend religious education classes”. This most recent version of the above-mentioned article was promulgated by the President of Romania and published in the Official Journal on 22 June 2015.
The decision by the Constitutional Court on the registration procedure for religious education classes has opened up a debate on the most controversial aspect of the law on education: the compulsory or optional nature of this discipline.
Additionally, religious education is included in the common core, which gives it a compulsory nature. Religious instruction is therefore guaranteed in constitutional law, in accordance with each person’s religion. In addition, the discipline of religion includes specific denominational elements - dogmatic, catechism etc., which means that it cannot be imposed, because that would violate another constitutional law, i.e. Article 29 of the Constitution of Romania, which stipulates that “no-one can be forced to adopt an opinion or to adhere to a religion contrary to their beliefs”.
The judges of the Constitutional Court have interpreted the compulsory nature of this discipline as being directed at the state, and not at pupils or parents, who have the right to choose if they will study religion or not, and if so, which religion they will study. Belonging to the common core does not mean that classes in religion are compulsory for all pupils, but it must necessarily be part of the educational provision of the school. In the Court’s reasoning the following text appears: “The compulsory nature of religion, like a school subject belonging to the common core, cannot be enforced on pupils, because it was introduced to fulfil the constitutional requirements mentioned above, with the state fulfilling the obligation to include the subject in the teaching curriculum. Consequently, the compulsory nature of the subject of religion is enforceable only upon the state which is bound by the need to organise religious instruction through providing religious education in the 18 recognised religions”.
As a result and from a theoretical point of view, religious education is assuming a less compulsory character for pupils. In practice, this demarcation remains uncertain because of the ambiguities of Article 18, para. 2 of the recently amended Law on National Education. First of all, the new form taken by the law does not envisage for how long registration is valid: for one year, one teaching cycle or an undetermined period. Then, the law does not envisage when requests for opting out of religious studies become applicable: at any moment of the school year or with effect from the following school year. Lastly, to opt out of religious studies, pupils must make a written request, so we find ourselves exactly in the situation preceding the Constitutional Court decision.
The compulsory or optional character of classes in religion impacts not only pupils, but also teachers of religion. At present in Romania, approximately 6,000 teachers are teaching religion; in the current economic climate, they no longer have guaranteed jobs.
However, more than 90% of pupils have submitted requests to register for religious education classes. These requests were made between 23.01.2015 and 06.03.2015 (all decisions by the Constitutional Court must be implemented within 45 days of publication in the Official Journal) and they are also valid for the school year 2015-2016.
By taking account of this percentage, it could be considered that the legislative amendments with regard to courses of religion have not currently been translated into the reality of school life and Romanian society in general. This change of vision on the role of the religion in teaching pupils could, however, have profound effects over the long term.

D 25 August 2015    AGabriel Birsan

CNRS Unistra Dres Gsrl

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