AEPL report "An impartial state

Published on 21/10/2017

Lecture presented by Claude WACHTELAER at the Congress of Secularism (Kongres Świeckości), Warsaw, 21 & 22 October 2017.

I have been asked to present the Belgian and Dutch models of Church-State relations. I will start by giving you some historical background. I will then look at the legal aspects of the question and, finally, I will give you some information on the impact of these first two subjects on the daily lives of citizens in both countries.

The kingdoms of the Netherlands and Belgium are neighbours with a shared history. Belgium and the Netherlands were a single country under Spanish rule until 1581, when the 7 northern provinces declared their independence and remained a Republic until the French Revolution. The southern provinces, present-day Belgium, remained under Spanish, then Austrian and French rule for the same period. The two countries were reunited in 1815, but this last attempt at unification came to an end in 1830 when the Belgians rebelled against Dutch domination.

The Belgian Revolution began in Brussels with an opera song - celebrating the rebellion of the people of Naples against the Spanish - on the evening of 25 August 1830. It was a troubled time in many European countries, as you know in Poland, and Brussels, inspired by its French neighbour, was also full of hope.

The Church opposed the King because he was Protestant. But also because it wanted to put an end to the Caesaropapism it had suffered during the Napoleonic period. This doctrine subordinated the Church to the king or emperor, and it was also the doctrine that guided King William I. Under the influence of the French Catholic priest Félicité de LAMENNAIS, one of the inspirers of Christian democracy, the Belgian Church was convinced that liberal freedom would, when the time came, see the triumph of Catholic truth.

On the other hand, the liberals were influenced by the Enlightenment, Voltaire, the Glorious British Revolution and the American and French Revolutions. Those of them who were Christian also wanted to get rid of Caesaropapism, but many were also clearly anti-clerical and wanted to limit the influence of religion on politics and other aspects.

Few people are familiar with their country's constitution, and Belgians are no exception. This is a pity, because the provisional government, which ran the country before the election of a new king, succeeded in drafting a remarkable text in less than a year. The Belgian Constitution of 1831 was an almost perfect application of the ideas contained in Montesquieu's Esprit des lois, and was very progressive for its time.

At a time when the Poles were fighting the Russians for their freedom, when the Spanish still had to fear the Inquisition, when the French could expect another 40 years of authoritarian rule, the Belgian constitution was a real achievement. The text guarantees freedom of association, which leads to political freedom, freedom of thought and religion, and freedom of the press, abolishing any possibility of censorship. There is no law on blasphemy and civil marriage must precede religious marriage (the latter having no legal value in itself). Finally, the Concordat with the Catholic Church, which had existed during the Napoleonic period, was abolished.

Of course, these liberal victories were not achieved without a price to pay to the Catholic Church. The first was the funding of recognised religions (there were three at the time and two of them [Jews and Protestants] were marginal). This meant that priests, but also pastors and rabbis, would be paid by the State and that the deficit in parish church budgets would be borne by the local authorities. But this did not mean that - unlike in the Napoleonic period - religious personnel would become civil servants.

The second concession concerns schools. The Constitution states that "education is free". This means that anyone can open a school in Belgium. But it essentially recognises the fact that in 1831, education was almost entirely controlled by the Catholic Church. And as the Church said at the time, the State should only play a subsidiary role in education.

Be that as it may, the freedoms protected by the Constitution have paved the way for a democracy moving towards broad secularisation. And, despite the large Catholic majority among its citizens, this means that Belgium must be considered secular from the outset.

This is clear from the following articles of the Constitution:

Article 19 guarantees freedom of religion, its public exercise and freedom of expression.

Article 20 stipulates that "no one may be compelled to take part, in any form whatsoever, in the acts and ceremonies of a religion, nor to observe its days of rest".

Article 21 denies the State the slightest right of supervision over the life of the Church, but stipulates that "civil marriage must always precede the nuptial blessing".

Relations between the Churches, including the Catholic Church, and the State are therefore based on a principle that specialists call "double incompetence". The State does not intervene in religious affairs (it does not appoint priests or other members of the hierarchy, for example) and the Church has no privileged influence on politics. Admittedly, the Catholic Church was powerful and influential, but this was due to the number of Catholics, not to a concordat.

Of course, the idea of funding churches recognised by the State is open to criticism, as it seems incompatible with the idea of secularism (a concept that did not exist at the time). The issue gave rise to lengthy debates. In 1859, Jules Bara, a future Liberal minister, attempted to draw a dividing line: "The salaries of ministers of religion are an exception that has no influence on the constitutional order [...], since the payment of salaries does not impose any special obligation on the clergy with regard to the State, nor can it be argued that privileges or favours should be granted to ministers of religion".

This peaceful start - a period known in Belgium as Unionism as I mentioned earlier - did not last and things deteriorated rapidly. The quarrel began in 1834 with the creation of the University of Brussels. This followed by a few months the opening of the future Catholic University of Louvain and was made possible by the efforts of the Brussels Masonic Lodges. The University's basic principle was free research and it wanted to avoid any religious interference in teaching.

At this point, it's time to correct two common errors about 19th-century Belgium.

The first mistake is to think that the struggle I have just described was between Catholics and non-believers. The men who supported the creation of the University, who also contributed to the drafting of the Constitution, who were liberals, were also Christians, often Catholics, sometimes deists. But they were all anti-clerical and very much in favour of freedom of thought.

The second mistake would be to think that the language problem that exists in Belgium today was a major concern in the 19th century. As the entire bourgeoisie spoke French, the debate on Flemish and French did not yet exist and the main source of division was the problem of schooling. We will return to this issue later.

The Belgian Catholic Church of the time became more ultramontane, and therefore more subject to the authority of the Pope. Conflicts became inevitable. Seeing the Masons, an organisation that had already been condemned by the Church for a century, create a university that challenged religious control of higher education could only exasperate the Belgian bishops. A second conflict began in 1837 when the Belgian bishops renewed their condemnation of Masonry and reminded Catholics that they had to make a choice and that they could no longer be both good Catholics and Masons. This approach helped to secularise Belgian Masonic lodges and make them increasingly anti-clerical. In 1872, five years before the French Freemasons did the same, the Masonic lodges went as far as their members' freedom of thought by abolishing the obligation to invoke the Great Architect of the Universe.

Let's leave Belgium for a moment and turn to the Netherlands.

The issue of religious tolerance goes back a long way in the country's history. During the Wars of Religion in the 16th century, the seven provinces that were to become the Netherlands rebelled against Spanish domination and the persecution of Protestants. After fruitless efforts to reach an agreement with the King of Spain, the 7 provinces asserted their independence by signing the Union of Utrecht in 1579. This important text established religious freedom and made the country an exception in Europe, particularly as regards tolerance towards the Jews. However, it would be wrong to idealise the situation. While freedom of worship was guaranteed, religious minorities (mainly Catholics and Jews) were not allowed to practise in public and the Protestant religion retained the privileges of a quasi-state religion.

As in Belgium, the situation changed at the time of the French Revolution. Religious freedom was preserved, but the authorities, as in France, exercised greater control over the churches. This was in line with Napoleon's idea that one priest was worth two gendarmes.

After the Emperor's defeat, the Constitution of 1814 preserved religious freedom but maintained major inequalities. The King could only be a member of the Reformed Church, and that church was the only one to receive funds from the State. This principle was revised in 1815 when Belgium became part of the Netherlands, which led to the Catholic Church receiving funding.

In the Netherlands, the principle of 'double incompetence' that I mentioned earlier has never been applied as strictly as in Belgium. The constitutional revision of 1848 and, in 1853, the law on religious communities, led to the establishment of complete religious freedom, including the right for religious communities to organise themselves without state intervention. But major differences remain between the two countries.

The Belgian constitution provided for the funding of 'recognised cults' (established religions, if we use the American term) but did not require citizens to register as Catholics, Jews or Protestants. On the contrary, the Dutch constitution of 1801 required citizens to register, while recognising their right to change their affiliation if they so wished. This system lasted until 1994. This meant that the religious affiliation of Dutch citizens was known to the civil authorities, which was never the case in Belgium.

The constitutional reform of 1983 brought about a major change by abolishing the payment of salaries to ministers of religion. Thus, in the Netherlands, priests are no longer paid by the State but by the religious communities.

Other questions are more trivial but illustrate differences in sensitivity.

The Dutch national anthem, the Wilhelmuslied (whose lyrics date from 1570), has a strong religious connotation that is not found in the Belgian anthem (the Brabançonne, dating from 1831). Dutch coins often bear the text "God be with us", but you will never find any religious text or symbol on Belgian coins. Blasphemy has never been criminalised in Belgium, but it was in the Netherlands between 1930 and 2014.

However, Belgium has sometimes forgotten that churches and the State are separate.

Whether you were a believer or not, you had to swear before God in court until 1974. This was a vestige of Napoleonic legislation, and only in a judicial context.

There is no reference to God in the oath taken by kings since 1831, nor in that taken by civil servants thereafter.

Crucifixes can be found in many official buildings, particularly courthouses, which are gradually disappearing, and the Vatican representative is the first in the order of protocol for official ceremonies.

Thus, after 1850, despite these differences, it can be considered that the two countries were neutral and largely secular, that Church and State were separate and that civil liberties were well guaranteed. But ideological and religious affiliations remained strong, and the way society functioned in both countries led to the development of a system known as "pillarisation".

What is a pillar? A pillar groups together a series of organisations sharing the same ideology: schools, health insurance, hospitals, trade unions, newspapers, political parties, etc. under a religious or political label. These pillars had a fundamental influence on the organisation of society because they were based on the personal loyalty of their members. Even forty or thirty years ago in Belgium, you couldn't be a candidate for the Socialist Party if you weren't also a member of the Socialist trade union and the health insurance fund. And you couldn't be a teacher in a Catholic school and a member of the Socialist Party without risking problems with both camps. In other words, and perhaps more so in Belgium than in the Netherlands, this system gave rise to furious disputes until the 1990s.

One emblematic conflict was the "school question". As I wrote earlier, at the time of Belgium's independence, the Catholic Church had a monopoly on education. This did not satisfy the liberals. In the second half of the 19th century, a series of laws were passed to allow local authorities to open schools. But the very conservative Catholic Church opposed liberal ideas in favour of expanding education, especially for the poor. The battle between the two opponents reached its climax in 1878. After winning the election, the Liberals created the first Ministry of Education, abolished compulsory religious instruction and replaced it with a science course. This victory was short-lived.

The first school war began. Intolerance flared up, and the Catholic Church threw all its energies into the fight against the "godless schools", which children entered as children and left as ruffians. The bishops' weekly prayer "Lord, protect us from godless schools" had a strong political impact and the Liberals, who lost the next election, did not return to power for forty years.

The Liberals then tried another strategy. Local authorities, and provinces where the Liberals and the newly formed Socialist Party had a majority, developed their schools, leading to the development of two competing networks, one religious, the other secular, which still exist today.

The second school war, between 1954 and 1958, led to a kind of peace treaty, the Pacte scolaire. The war had become more economic than ideological and the state increased funding for both networks, resulting in costly satisfaction.

Since the 1960s, the progress of secularisation has led to a depilarisation in both countries. Loyalty to the pillars has been replaced by choices based on the quality of the services offered by the various components of the pillars. Today, you can be a member of the socialist party and the Christian trade union. You can even be a disbeliever and send your children to a Catholic school, and the reverse is also true.

Both Belgium and the Netherlands can now be considered as "depilarised pluralist countries".

What can we conclude from these stories? Certainly that both countries have succeeded in achieving the ambition of creating an impartial state where religion is not consigned to the wardrobe, but where the expression of religious beliefs does not take precedence in everyday life over what Habermas calls 'consensus through deliberation'.

Issues such as abortion and euthanasia in Belgium and the Netherlands are good examples of this development. The issue of abortion was very controversial in Belgium between the 1970s and 1990, when the law was passed. The debate lasted 20 years. Catholics were opposed to the idea of lifting the ban on abortion, while at the same time they knew perfectly well that hospitals belonging to the secular pillar performed abortions all the time under good health conditions. The law was finally passed with the support of a leading member of the Catholic pillar, the Catholic women's movement "Vie Féminine". It was also passed after the King refused to sign the bill, forcing Parliament to declare him temporarily unfit to reign. For the anecdote, Parliament used an almost forgotten article of the Constitution, drafted in 1830 to take account of the difficulties that the health problems of British King George III had created in this country!

The issue of euthanasia was much less controversial and the law was passed in 2002 after lengthy but very respectful debates. The way in which this important ethical issue has been dealt with reflects a form of appeasement in a country where pluralism is now a strong reality. The Netherlands is ahead of Belgium in both situations. Abortion was authorised in 1984 and euthanasia in 2001. And in the Netherlands too, consensus through deliberation has become a common way of dealing with ethical problems. It's hard for us to imagine demonstrations against same-sex marriage, for example, like the "Manif' pour tous" in France.

Both countries are now, as I said, largely secularised. The situation today is very different from that which prevailed in the 19th century, but which was initially made possible by the Constitutions of the two countries.

Secularisation is a cultural and sociological process sanctioned by law. And while a legal process can produce its effects in a relatively short time, it takes longer to change the dominant culture. The religious policies of the Netherlands, where Catholics and Protestants have lived side by side since the sixteenth century, and those of Belgium, whose population was almost 98 % Catholic at the time of independence, have had to follow different paths towards greater secularisation.

The most problematic issue in Church-State relations is, of course, funding. From the French or American point of view, the answer is simple: there is no question of it. The French see it as the cornerstone of secularism, while the Americans see it as prohibited by the First Amendment and the wall of separation (although it should be pointed out that they compensate for this position with substantial tax exemptions).

In Belgium and the Netherlands, the question has been answered in different ways over the years, leading to the theorisation of an important principle: equal treatment. Equal treatment has become a problem as a result of the spread of unbelief. If, as is or was the case in both countries, churches receive public funds to support their work, what about citizens who are not interested in what churches do? What about the moral support to which religious people are entitled, but which is not available to non-believers? As well as organising religious ceremonies for weddings, funerals, etc., churches are also able to provide moral support in hospitals, prisons, the army and the city. And non-believers were not.

In Belgium, the humanist movement began seeking legal recognition on an equal footing with religions in 1974. The process lasted 20 years. It was preceded by a series of changes in specific areas. Access to public radio and television was granted in the late 1950s; humanist moral counselling in hospitals and prisons in the 1970s; in the army in the 1990s. A similar development took place (often before that of Belgium) in the Netherlands. The Free Universities of Brussels (French-speaking and Flemish-speaking) are organising a master's degree in moral counselling, and the University of Humanist Studies in Utrecht is doing the same in the Netherlands.

There are, however, a few differences. For example, Dutch humanists have developed a large network of housing for the elderly which has no equivalent in Belgium, and teachers of humanist ethical education are civil servants in Belgium but work under the authority of a humanist organisation in the Netherlands.

A final subject I'd like to address is the relationship between the separation of Church and State and the growth of Islamic communities in our countries. Of course, the Islamic religion is treated like any other religion, for example it has become a 'recognised religion' in Belgium, Islam can be taught in state schools like Catholicism, Judaism, etc. and both countries allow Muslims to set up Islamic schools. Nevertheless, problems have arisen in recent years and are not dealt with in the same way in the Netherlands and Belgium. Once again, Belgian and Dutch sensibilities diverge somewhat.

In 2001, the Dutch Equal Treatment Commission ruled that the rejection of a headscarf-wearer's application for a civil service post violated the Equal Treatment Act. However, the Belgian courts ruled otherwise. The Belgian courts have also rejected applications from pupils wishing to wear the headscarf in schools where this was prohibited. In both cases, the Belgian courts based their ruling on Article 9 of the European Convention on Human Rights, which allows a public authority to restrict religious freedom if this is done to maintain public order. In fact, it can be seen here that the Dutch authorities have taken a more 'Anglo-Saxon' approach to the issues in these cases, while the Belgian authorities are more influenced by the idea of protecting the neutrality of public services.

Unfortunately, Belgium has repeatedly violated its own principles when trying to deal with the Muslim group

Islam became a "recognised religion" in 1974. The problem was that the Islamic religion was not really organised in Belgium. In the absence of an association or representative to turn to, the Belgian government made a questionable choice and opted to hold talks with Saudi Arabia. I won't go into too much detail, but this was a clear violation of a well-established principle: recognition implies the existence of at least a significant number of organised and identifiable groups.

Two other violations of the principle of "double incompetence" occurred after the previous one. The first concerns the security check of candidates for appointment to the new representative body of Muslims in Belgium. Although the government invoked the need to prevent any risk of radicalisation or threat, this contradicts the fact that the authorities are not supposed to interfere in the internal organisation of religious bodies. This very week, the question is being repeated with the creation of a university training course to award diplomas to future imams. Here too, the question arises: can the government decide what is the right Islam to be taught in Europe? This specific problem certainly shows the limits of our systems, but I have to say that the answers offered by the British or French models do not seem any more satisfactory.

It's time to conclude. I will first try to do so with reference to the Secular Manifesto drawn up by the organisers of this Congress and try to compare it with the current situation in the Netherlands and Belgium.

All human and civil rights and freedoms are fully respected, without any reference to religion.

Although I have the impression that the Netherlands is a slightly more religious country than Belgium (which has become largely indifferent to Church teaching), I think we can consider that both countries meet this condition. However, during my research for this speech, an anecdote surprised me. In her article, a Dutch researcher considered that it would be problematic for a police officer not to admit that an Orthodox Jew should be allowed to refuse to show his identity card on the Sabbath because this should be considered as work! I very much doubt that a Belgian court would follow this line of reasoning.

Another document I read on the Dutch situation considered that the separation between Church and State was not equivalent to the separation between religion and State. This nuance would not be readily accepted in Belgium either. I think this can be explained by a reminiscence of the Calvinist influence that remains in Dutch culture.

State support for churches or religious associations is based on the same principles as for secular NGOs.

Both countries have clearly achieved this objective. One question remains: is this funding distributed fairly? In Belgium, the question is very problematic because people are not expected to identify themselves as members of a church or a secular group. With an average mass attendance of 11 % on an ordinary Sunday and a share of more than 80 % of the budget allocated to religions and humanists, we cannot speak of a balanced situation between humanism and Catholicism. But this will inevitably change. One of the ideas is to create a consultation, at the same time as the election, which gives citizens the opportunity to express which religious or secular group their money should go to.

This would lead to more balanced funding while protecting the secrecy of individual religious or philosophical affiliation.

The secular nature of public education is guaranteed by the State.

This objective has clearly been achieved in both countries. Of course, religious education is not - unlike in France - completely excluded from state schools, but state education must be neutral and free from any religious influence.

All public institutions and State ceremonies are free from religious symbols and rituals.

This is a very sensitive issue. For Belgium, I would say that the implementation rate is 90 %. But a thorough investigation will probably reveal violations of this principle, and the same must be true in the Netherlands. But if we consider that secularisation is a success, these situations can be corrected because they contradict the generally accepted principle. It should also be borne in mind that a significant number of civil ceremonies organised in France do not escape infringement of this golden rule.

I hope I have given you a general description of the degree of secularisation in our two countries. I don't claim that my speech cannot be criticised, or even contradicted on certain details, but that's the price to pay when you want to talk about a complex subject. And 30 years' experience in the field has convinced me that secularisation is a very complex issue. It touches on many aspects of a country's social and political life, and hoping to come up with a single model for Europe seems totally unrealistic.

In fact, secularisation is a work in progress. The biggest mistake would be to believe that we can find some kind of ideal solution, implement it and then sleep peacefully for a century. The forces that oppose secularisation never sleep because they are convinced, they know the truth and they want to impose it on everyone. We only advocate freedom, the freedom of the individual to make his or her own choices, and to enjoy the years we spend on this earth, but we should never stop staying awake.

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