Abp Mamberti responds to European Court of Human Rights judgement
(Vatican Radio) In an exclusive interview with Vatican Radio, Archbishop Dominique
Mamberti, Secretary for the Holy See’s Relations with States, reflects on the Church’s
freedom and institutional autonomy, with reference to six cases: four decided by the
European Court of Human Rights on the 15th of January, and two others still
before the same court.
Below we publish the full transcript of the interview
with Archbishop Mamberti and a Note on the Catholic Church’s freedom and institutional
autonomy
Your Excellency, on 15 January the European Court of Human
Rights published its judgments on four cases relating to the freedom of conscience
and religion of employees in the United Kingdom. Two of these cases concern employees’
freedom to wear a small cross around their neck in the workplace, while the other
two concern the freedom to object in conscience to the celebration of a civil union
between persons of the same sex and to conjugal counselling for couples of the same
sex. Only in one case the Court held in favor of the applicant…
These
cases show that questions relating to freedom of conscience and religion are complex,
in particular in European society marked by the increase of religious diversity and
the corresponding hardening of secularism. There is a real risk that moral relativism,
which imposes itself as a new social norm, will come to undermine the foundations
of individual freedom of conscience and religion. The Church seeks to defend individual
freedoms of conscience and religion in all circumstances, even in the face of the
“dictatorship of relativism”. To this end, the rationality of the human conscience
in general and of the moral action of Christians in particular requires explanation.
Regarding morally controversial subjects, such as abortion or homosexuality, freedom
of consciences must be respected. Rather than being an obstacle to the establishment
of a tolerant society in its pluralism, respect for freedom of conscience and religion
is a condition for it. Addressing the Diplomatic Corps accredited to the Holy See
last week Pope Benedict XVI stressed that: “In order effectively to safeguard the
exercise of religious liberty it is essential to respect the right of conscientious
objection. This “frontier” of liberty touches upon principles of great importance
of an ethical and religious character, rooted in the very dignity of the human person.
They are, as it were, the “bearing walls” of any society that wishes to be truly free
and democratic. Thus, outlawing individual and institutional conscientious objection
in the name of liberty and pluralism paradoxically opens by contrast the door to intolerance
and forced uniformity.” The erosion of freedom of conscience also witnesses to
a form of pessimism with regard to the capacity of the human conscience to recognize
the good and the true, to the advantage of positive law alone, which tends to monopolize
the determination of morality. It is also the Church’s role to remind people that
every person, no matter what his beliefs, has, by means of his conscience, the natural
capacity to distinguish good from evil and that he should act accordingly. Therein
lies the source of his true freedom.
Some time ago the Holy See’s Mission
to the Council of Europe published a Note on the Church’s freedom and institutional
autonomy. Could you explain the context of the Note?
The issue of the Church’s
freedom in her relations with civil authorities is at present being examined by the
European Court of Human Rights in two cases involving the Orthodox Church of Romania
and the Catholic Church. These are the Sindacatul “Pastorul cel Bun” versus Romania
and Fernandez Martinez versus Spain cases. On this occasion the Permanent Representation
of the Holy See to the Council of Europe drew up a synthetic note explaining the magisterium
(official Church teaching) on the freedom and institutional autonomy of the Catholic
Church.
What is at stake in these cases?
In these cases, the
European Court must decide whether the civil power respected the European Convention
on Human Rights in refusing to recognize a trade union of priests (in the Romanian
case) and in refusing to appoint a teacher of religion who publicly professes positions
contrary to the teaching of the Church (in the Spanish case). In both cases, the rights
to freedom of association and freedom of expression were invoked in order to constrain
religious communities to act in a manner contrary to their canonical status and the
Magisterium. Thus, these cases call into question the Church’s freedom to function
according to her own rules and not to be subject to civil rules other than those necessary
to ensure that the common good and just public order are respected. The Church has
always had to defend herself in order to preserve her autonomy with regard to the
civil power and ideologies. Today, an important issue in Western countries is to determine
how the dominant culture, strongly marked by materialist individualism and relativism,
can understand and respect the nature of the Church, which is a community founded
on faith and reason.
How does the Church understand this situation?
The
Church is aware of the difficulty of determining the relations between the civil authorities
and the different religious communities in a pluralist society with regard to the
requirements of social cohesion and the common good. In this context, the Holy See
draws attention to the necessity of maintaining religious freedom in its collective
and social dimension. This dimension corresponds to the essentially social nature
both of the person and of the religious fact in general. The Church does not ask that
religious communities be lawless zones but that they be recognized as spaces for freedom,
by virtue of the right to religious freedom, while respecting just public order. This
teaching is not reserved to the Catholic Church; the criteria derived from it are
founded in justice and are therefore of general application. Furthermore, the
juridical principle of the institutional autonomy of religious communities is widely
recognized by States which respect religious freedom, as well as by international
law. The European Court of Human Rights itself has regularly stated this principle
in several important judgments. Other institutions have also affirmed this principle.
This is notably the case with the OSCE (Organization for Security and Cooperation
in Europe) and also with the United Nations Committee for Human Rights in, respectively,
the Final Document of the Vienna Conference of 19 January 1989 and General Observation
No. 22 on the Right to Freedom of Thought, Conscience and Religion of 30 July 1993.
It is nevertheless useful to recall and defend this principle of the autonomy of the
Church and the civil power.
How is this Note set out?
The Church’s
freedom will be better respected if it is, first of all, well understood, without
prejudice, by the civil authorities. It is therefore necessary to explain how the
Church’s freedom is envisaged. To this end, the Permanent Representation of the Holy
See to the Council of Europe drew up a synthetic Note (which is here attached) explaining
the Church’s position on the basis of four principles: 1) the distinction between
the Church and the political community; 2) freedom in relation to the State; 3) freedom
within the Church; 4) respect for just public order. Following the explanation of
these principles, the Note also presents the more pertinent extracts from the Declaration
on Religious Freedom Dignitatis Humanae and the Pastoral Constitution Gaudium et Spes
of the Second Vatican Council.
Permanent Representation of the Holy
See to the Council of Europe
Note on the Catholic Church’s freedom and
institutional autonomy, on the occasion of the examination by
the European Court of Human Rights of the Sindacatul “Pastorul cel Bun”
versus Romania (No. 2330/09) and Fernandez Martinez versus Spain (No. 56030/07)
cases
The teaching of the Catholic Church regarding the aspects of religious
freedom touched on by the two above-mentioned cases may be presented synthetically
as based on the following four principles: 1) the distinction between the Church and
the political community; 2) freedom in relation to the State; 3) freedom within the
Church; 3) respect for just public order.
1. The distinction between the Church
and the political community
The Church recognizes the distinction between the
Church and the political community, each of which has distinct ends; the Church is
in no way confused with the political community and is not bound to any political
system. The political community must see to the common good and ensure that citizens
can lead a “calm and peaceful life” in this world. The Church recognizes that it is
in the political community that the most complete realization of the common good is
to be found (cf. Catechism of the Catholic Church, n. 1910); this is to be understood
as “the sum total of social conditions which allow people, either as groups or individuals,
to reach their fulfilment more fully and more easily” (ibid., n. 1906). It is the
State’s task to defend it and ensure the cohesion, unity and organization of society
in order that the common good may be realized with the contribution of all citizens
and that the material, cultural, moral and spiritual goods necessary for a truly human
existence may be made accessible to everyone. The Church, for her part, was founded
in order to lead the faithful to their eternal end by means of her teaching, sacraments,
prayer and laws. This distinction is based on the words of the Lord Jesus (Christ):
“Render therefore to Caesar the things that are Caesar’s, and to God the things that
are God’s” (Mt 22:21). In their own areas, the political community and the Church
are independent of each other and autonomous. When it is a question of areas which
have both temporal and spiritual ends, such as marriage or the education of children,
the Church is of the view that the civil power should exercise its authority while
making sure not to damage the spiritual good of the faithful. The Church and the political
community, however, cannot ignore one another; from different points of view they
are at the service of the same people. They exercise this service all the more effectively
for the good of all the more they strive for healthy mutual cooperation, as the Second
Vatican Council expressed it (cf. Gaudium et spes, n. 76). The distinction between
the Church and the political community is ensured by respecting their reciprocal autonomy,
which conditions their mutual freedom. The limits of this freedom are, for the State,
to refrain from adopting measures which could do harm to the eternal salvation of
the faithful, and, for the Church, to respect the public order of the State.
2.
Freedom with respect to the State
The Church claims no privilege but asks
that her freedom to carry out her mission in a pluralist society be fully respected
and protected. The Church received this mission and this freedom from Jesus Christ,
not from the State. The civil power should thus respect and protect the freedom and
autonomy of the Church and in no way prevent her from fully carrying out her mission,
which consists in leading the faithful, by her teaching, sacraments, prayers and laws,
to their eternal end. The Church’s freedom should be recognized by the civil power
with regard to all that concerns her mission, whether it is a matter of the institutional
organization of the Church (choice and formation of her co-workers and of the clergy,
choice of bishops, internal communication between the Holy See, the bishops and faithful,
the founding and governing of institutes of religious life, the publication and distribution
of written texts, the possession and administration of temporal goods …), or the fulfilment
of her mission towards the faithful (especially by the exercise of her Magisterium,
the celebration of public worship, the administration of the sacraments and pastoral
care). The Catholic religion exists in and through the Church, which is the mystical
body of Christ. When considering the Church’s freedom, primary attention should therefore
be given to her collective dimension: the Church is autonomous in her institutional
functioning, juridical order and internal administration. With due respect for the
imperatives of a just public order, this autonomy should be respected by the civil
authorities; this is a condition of religious freedom and the distinction between
Church and State. The civil authorities cannot, without committing an abuse of power,
interfere in the purely religious domain, for example, by seeking to change the bishop’s
decision regarding appointment to a function.
3. Freedom within the Church
The Church is not unaware that certain religions and ideologies can oppress
the freedom of their adherents; however, for her part, the Church recognizes the fundamental
value of human freedom. The Church sees in every human person a creature endowed with
intelligence and free will. The Church sees herself as a space for freedom and prescribes
norms intended to guarantee that this freedom is respected. Thus, all religious acts,
for validity, require the freedom of the one carrying them out, that is, the engagement
of their will. Taken together and apart from their individual significance, these
freely accomplished acts aim at giving access to the “freedom of the children of God”.
Mutual relations within the Church (such as marriage and religious vows made before
God) are governed by this freedom. This freedom has a relation of dependence on
the truth (“the truth will make you free”, Jn 8:32): consequently it cannot be invoked
to justify an attack on the truth. Thus, a member of the lay faithful or a religious
cannot, with regard to the Church, invoke freedom to contest the faith (for example,
by adopting public positions against the Magisterium) or to damage the Church (for
example, by creating a civil trade union of priests against the will of the Church).
It is true that every person is free to contest the Magisterium or the prescriptions
and norms of the Church. In case of disagreement, everyone may exercise the recourses
provided by canon law and even break off his relations with the Church. Since relations
within the Church are, however, essentially spiritual in nature, it is not the State’s
role to enter into this area to settle disputes.
4. Respect for just public
order
The Church does not ask that religious communities be “lawless” areas,
where the laws of the State would cease to apply. The Church recognizes the legitimate
competence of civil authorities and jurisdictions to assure the maintenance of public
order. This public order should conform to justice. Thus, the State should ensure
that religious communities respect morality and just public order. In particular,
it should see to it that persons are not subject to inhuman or degrading treatment,
that their physical and moral integrity is respected, including the possibility of
freely leaving their religious community. This is where the autonomy of the different
religious communities is limited, allowing both individual and collective and institutional
religious freedom to be guaranteed, while respecting the common good and the cohesion
of pluralist societies. Apart from these cases, civil authorities should respect the
autonomy of religious communities, by virtue of which these should be free to function
and organize themselves according to their own rules. In this regard, it should
be borne in mind that the Catholic faith completely respects reason. Christians recognize
the distinction between reason and religion, between the natural and supernatural
orders, and believe that “grace does not destroy nature”, that is to say, that faith
and the other gifts of God never render human nature and the use of human reason useless,
not ignore them, but rather promote and encourage them. Christianity, unlike other
religions, does not involve formal religious prescriptions (regarding food, vesture,
mutilation, etc.) which, were the case to arise, could offend against natural morality
and enter into conflict with the law of a religiously neutral State. In any case,
Christ taught us to go beyond such purely formal religious prescriptions and replaced
them by the living law of charity, a law which, in the natural order, recognizes that
conscience has the task of distinguishing between good and evil. Thus, the Catholic
Church could not impose any prescription contrary to the just requirements of public
order.