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Une recherche comparative sur la protection juridique des non-croyants dans l’Union européenne

1. Contemporary Atheism

The Codice europeo della libertà di non credere deals with a still little-explored area of research : the legal protection of non-belief, in its individual and collective dimensions, in the member states of the European Union. This is a topic of pressing relevance in today’s “liquid society” in which the religious phenomenon is rapidly and continuously transforming.
Including atheist groups among religious minorities might seem paradoxical to some. In fact, in the West, a long cultural-historical tradition has engendered and passed down the belief of a mutual exclusion-negation between the phenomena of atheism and religiosity, thus of their clear semantic opposition. The rigid dichotomy was essentially configured on the antithesis between the two poles, positive and negative, ascribed to the religious and atheistic phenomena ; the concept of lack, of deprivation. Together with the ambiguity and polysemy of the term “negative”, understood in its meanings of both “non-affirmative” and “unpleasant, harmful”, this has contributed to the stigmatisation and persecution over the centuries of non-believers as capable of questioning absolute truths and ruling powers. At least until the 20th century unbelief is often assimilated to a “materialist” doctrine devoid of morality.
One of the distinctive features of contemporary atheism is found not only in its negative character, as a-theism, but especially in its positive-constructive aspect, as a free and autonomous life choice.
Atheism excludes divinity but does not exclude a “spirituality without God,” the ability to construct horizons of meaning and values that are equally legitimate and worthy of equal consideration. Contemporary atheism manifests itself in various and growing organized forms that strive to assert a secular view of life and to obtain an ontological status equal to that of dogmatic religions.
The religious landscape has nowadays become very complex and continues to expand. Alongside “traditional” religious beliefs, new forms of spirituality, processes of deconversion, phenomena such as “believing without belonging”, “belonging without believing”, and “multiple religious affiliations” are spreading.
The phenomenon of nonbelief (into which fall ̶ without any claim to exhaustiveness ̶ skeptical, agnostic, atheist, indifferent, rationalist, and humanist beliefs), although it is difficult to quantify, is increasing : numerous sociological surveys have recorded a growing trend of nonbelievers in the world. According to the Pew Research Center (2017), they account for about 16% of the world’s population.
It is also necessary to distinguish between those affiliated with philosophical and non-denominational organisations ̶ whose numbers vary widely among associations from a few hundred to several thousand ̶ and so-called nones (religiously unaffiliated : atheists, agnostics, and people who do not identify with a particular religion in surveys and censuses) ; nones are much more numerous than affiliates and they represent a large percentage of both the world population and the European population. The quantitative gap is based on several reasons : some do not feel the need to affiliate, or do not want to disclose their beliefs/convictions on religious matters, considering them strictly private and personal ; others may fear a possible social stigma resulting from affiliation.

2. Theism/atheism : equal legal treatment ?

In 1950, the European Convention on Human Rights, like the Universal Declaration of Human Rights (Art. 18) and the Charter of Fundamental Rights of the European Union (Art. 10) before it, intended to protect through Art. 9, in an all-inclusive manner, freedom of thought, conscience and religion. If the lexical option adopted by the English version of the article, “religion or belief”, may cast doubts on the broad interpretation of the provision, the French version, “religion ou conviction”, clearly directs toward a reading of the religious phenomenon inclusive of the theistic, atheistic and non-theistic axiological universes.
This reading is supported by European jurisprudence that is particularly attentive to an extensive declination of the paradigm of freedom of thought, conscience and religion. In Kokkinakis v. Greece (1993, § 31), the European Court of Human Rights affirmed that freedom of thought, conscience and religion (Art. 9 ECHR) is one of the foundations of a “democratic society” and it represents both one of the most vital elements that go to make up the identity of believers and their conception of life, and “a precious asset for atheists, agnostics, sceptics and the unconcerned”. Reiterating these general principles, in Buscarini et al. v. San Marino (1999, § 34) the ECHR clarified that freedom of religion implies the freedom to have or not to have religious beliefs, to practise or not to practise a religion.
Despite the incompetence of the European Union in religious matters, a European paradigm for regulating the religious phenomenon is gradually emerging through supranational sources and jurisprudence. A fundamental point of this paradigm can be seen in Article 17 of the Treaty on the Functioning of the European Union, which places churches, religious associations or communities and philosophical and non-denominational organisations on the same footing. This article, by recognising the identity and specific contribution of these actors, imposes for the first time a legal obligation on the EU to conduct an open, transparent and regular dialogue with them.
However, Article 17 TFEU has critical issues that cannot be analysed here. This article seems to draw a compromise between the federalist orientation of the Union and the typical tendency of states to preserve sovereignty. This compromise emerges from the wording of the article, which, on the one hand, obliges the Union to engage in dialogue with the aforementioned subjects, while, on the other hand, committing it to respect and not undermine (this last statement is reserved for churches and religious associations, but not philosophical organisations) the status that these subjects enjoy in national legal systems. Article 17 TFEU could, therefore, foster supranational recognition of the national criteria ̶ sometimes arbitrary or discretionary ̶ by which member states select religious groups eligible for special and beneficial statuses.
The “European Code of Freedom of Non-Belief” also highlights the asymmetry in legal treatment between religious and nonreligious groups ; the latter are, in many legal systems, less well treated than religious groups. A few examples should be mentioned among the legal systems that provide for equal legal treatment between religious and nonreligious groups :
In Belgium, organized secularism ̶ Communauté philosophique non confessionnelle ̶ enjoys equal status with the six recognised denominations. According to Article 181 of the Constitution, the salaries and pensions of philosophical delegates, like those of ministers of recognised denominations, are paid by the State.
In the Netherlands, religious denominations, philosophical and non-denominational associations are all associations under private law ; they enjoy the same legal treatment, and since 1983 (when the law on the resolution of financial relations between the state and the church came into force) they no longer benefit from direct state funding, so they derive their livelihood primarily from collections and donations from the faithful. Here, as in Belgium, philosophical associations can also carry out lay moral assistance in separate communities.
In Germany, Article 137 of the Weimar Constitution, incorporated along with other provisions on religious matters into the Basic Law of 1949, guarantees equal legal status to religious denominations and philosophical and non-denominational associations. Lower Saxony has a treaty with the Atheist Federation that allows the latter, among other things, to tax members (on a par with confessions recognised as corporations under public law), and the right to establish courses in schools.
In Austria, the “Atheist Religious Society” (ARG, so named to emphasise the connection of atheism to religion), having reached the minimum number of affiliates required by law (300 members according to the ‘98 law), petitioned the government in December 2019 for recognition (see W. Apfalter, Is an Atheist religion in Austria legally possible ?, in Journal of Law, Religion and State (JLRS), v. 8, No. 1, 2020, p. 93 ff.)
Some legal systems extend to the atheist sentiment the criminal protection accorded to the religious sentiment, among them : the Netherlands, Luxembourg, Germany.
This brief focus on some European legal systems shows the possibility of a concrete equalisation, in dignity and treatment, of the atheist and theist phenomena. This development is encouraged by European sources and jurisprudence and is more consistent with an increasingly secularised religious landscape. The Codice europeo provides insight into whether the protection of freedom of conscience in different states can be considered a compass for religious policy. The chosen areas ̶ including for instance religious and ethical teaching in public schools, the display of religious symbols in public space, spiritual assistance in separated communities, voluntary termination of pregnancy, the right to a dignified end of life, or the legal status of philosophical and non-denominational organisations ̶ represent a measure of the secular nature of the legal systems and religious policy of different States.

Reference :
 Silvia Baldassarre, Codice europeo della libertà di non credere. Normativa e giurisprudenza sui diritti dei non credenti nell’Unione Europea, Nessun Dogma, Iura, Roma, 2020 (Preface by F. Margiotta Broglio, afterword by M. Croce).
 G. Minois, History of Atheism, Editori Riuniti, 2003.

D 7 juin 2022    ASilvia Baldassarre

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