Upon the invitation of the International Association for Religious Freedom, Central-European Religious Freedom Institute attended the INFORM Conference at London School of Economics and Political Sciences. Prof. H. David Baer, associate professor of theology and philosophy at Texas Lutheran University and member of the Honorary Board of the Central-European Religious Freedom, held a lecture about Hungary’s Law on Churches and its implications on religious freedom in Hungary. Below you can see the full text of prof. Baer’s lecture.
HUNGARY’S NEW SYSTEM OF CHURCH RECOGNITION: RULE OF LAW OR RULE BY DECREE?
By prof. H. David Baer
In 2011 Hungary enacted a new law on “the Right of Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations, and Religious Communities” (Act CCVI of 2011) which has had enormous implications for religious freedom. Prior to 2011, religious communities in Hungary were registered and recognized in accordance with a 1990 law which treated all groups equally. Act CCVI, however, abolished the previous practice and replaced it with a tiered system of recognition for religious communities that distinguishes between, on the one hand, “established churches” (bevett egyházak), which receive numerous rights and privileges, and, on the other hand, “organizations conducting religious activity” (vallási tevékenységet végző szervezetek), which receive different and fewer rights and privileges. In order to introduce this new classification system, Act CCVI had to repeal the legal status of numerous groups previously recognized as churches according to the 1990 law. The number of churches deregistered by the new law was approximately 200.
Many countries in Europe have tiered classification systems for religious communities, and a superficial look at Hungary might leave the impression that its religion law resembles that in other European countries. However, Hungary’s tiered system was introduced after the country had established a twenty year legal practice of treating religious groups equally. Introducing a tiered system in Hungary was thus impossible without stripping numerous religious communities of rights they had already secured under law. Furthermore, because the structure of the new religion law depends upon the retroactive withdrawal of rights, the Hungarian government has been unable to preserve the tiered classification system without creating a registration system that is arbitrary and unaccountable, which fails to comply with OSCE/ODIHR-Venice Commission guidelines for legislation pertaining to religion or belief, and which contravenes fundamental democratic principles such as equality under the law and the right to due process.
The challenge of introducing a tiered classification system
Any tiered system for classifying religious communities inevitably raises questions concerning equality under the law. The essential characteristic of a tiered system is that it treats religious communities differently, granting privileges to some groups that it denies to others. But the right of religious freedom, including the right to the group-differentiated expression of religious belief, is held by all persons equally. The question therefore becomes: how can the unequal treatment of different religious groups be reconciled with the legal equality all citizens enjoy under the law?
Although the Hungarian government has not been altogether clear in providing answers to this question, one can, I think, discern in some public comments the outlines of an argument that goes something as follows: The right of religious freedom consists of an essential minimum that is protected by Hungarian law. Extending rights and privileges that go beyond the basic minimum, however, is a matter for political discretion. Thus, if the state wants to distinguish between churches and religious organizations, it can do so provided this differential treatment does not impinge upon the essential minimum guaranteed by the right of religious freedom. In Hungary, the argument goes, religious organizations enjoy the essential minimum; established churches enjoy privileges that go beyond the essential minimum. So Tamás Lukács, chair of a parliamentary committee on human rights and a member of the government coalition party, has stated that no religious community has a “subjective right” to be recognized as a church, even in circumstances in which that community meets the criteria for recognition laid down in the law. This is because, in Lukács’s view, whether or not the government bestows recognition as a church on a religious community is a matter purely for political discretion. Indeed, according to one press report, Lukács told the committee of human rights which he chairs that acquiring church status was not a matter of “right, but of grace.”
Yet even if one grants that the state can differentiate in its treatment of religious groups under some circumstances, the proposition that differences in treatment need no justification whatsoever is preposterous. The state cannot distinguish between religious communities willy-nilly, favoring some groups over others on the basis of, say, the prime minister’s personal preferences. All religious citizens are entitled to equal treatment under the law, and therefore the associations those religious citizens form are also entitled to equal treatment. Differential treatment of religious communities can be justified only as the byproduct, or social outcome, of the equal treatment of their citizens.
A few brief illustrations may serve to illustrate the ways in which equal treatment under the law allows space for certain kinds of differential treatment. Imagine a state that decides to support the religious aspirations of its citizens by providing direct subsidies to the religious communities in and through which citizens pursue those aspirations. Equality under the law means those subsidies need to be accessible in principle to everyone. At the same time, the state might well decide to distribute its subsidies proportionally in ways that provide larger sums to larger communities. It might also reasonably establish a minimum threshold for receiving financial support. But in these cases the differences in subsidy correspond to legitimate social differences among the religious communities. That is, the different treatment arises from a process that begins by treating all citizens equally. To use another example, the state may decide to extend tax exemptions to clergy, property, or activities of religious communities. The principle of equality under the law requires that these exemptions be offered in a neutral way to all religious groups, although again, the extent of the benefits will correspond to the size of a religious community.
In the case of the Hungarian law, however, the different treatment of established churches and religious organizations does not correspond to a principle of proportional equality, nor does it consistently reflect objectively different social circumstances. Established churches receive certain types of direct subsidy, regardless of size or kind of activity, which religious organizations, regardless of size or kind of activity, do not. The salaries of clergy in established churches are tax exempt, but those of clergy in religious organizations are not. Furthermore, the law treats the two groups differently as concerns rights of religious practice. The different rights enjoyed by established churches and religious organizations would therefore seem to arise from differences in the underlying posture the Hungarian state has adopted toward different groups of people. In other words, the state is discriminating against certain of its citizens.
Further evidence of this discriminatory posture can be adduced from the way Act CCVI of 2011 was implemented. Introducing a tiered classification of religious groups into a legal structure where those groups had previously been treated equally proved impossible without disregarding basic rights and legal principles. Hungary’s new religion law recognizes 27 established churches. At the time the law went into effect, all other previously recognized churches were stripped of legal personality. As a result, their leases, their contracts with utility companies, and any other legal relationships they had were voided. Deregistered churches were also informed that they needed to secure recognition as a civil organization to avoid having their property liquidated by the state. Given that OSCE/ODIHR guidelines for legislation concerning religion caution against retroactive provisions and re-registration procedures, the problematic character of this deregistration process should be obvious. Even so, I would like to call attention to some distinctive aspects of the Hungarian case.
In Hungary, deregistered communities were essentially compelled to seek legal personality under threat of losing their assets. This would appear to violate OSCE/ODIHR guidelines, which indicate religious communities should not be required to seek legal personality. However, OSCE/ODIHR guidelines also recognize that certain legal benefits properly attach to legal personality. Thus for the Hungarian government to require religious communities to acquire legal personality in order to own property or enter into contracts would seem compatible with European guidelines. The problem is that Hungary’s deregistered communities had already entered into legal relationships as churches. Retroactively stripped of rights they had once acquired, they were told to apply for the same rights again as a different kind of entity. Many deregistered religious communities have reported to me that the process of registering as a civil organization required making institutional changes that violated their religious conscience. Although perhaps in a strict sense these groups were free not to apply for legal personality, the choice to exercise that freedom would certainly come with a cost.
As a matter of due process and equal treatment, we should note that the 27 established churches recognized by the law were not required to apply for that status in accordance with the new recognition procedure laid down in the law. If the purpose of Act CCVI was to wipe the slate clean, so to speak, by establishing a completely new procedure for recognizing churches, then all of Hungary’s religious communities should have been deregistered and made to apply for the new status according to the new requirements. However, the churches currently recognized received their status as part of the legislation that brought the religion law into effect. Act CCVI of 2011 undid twenty years of established legal practice, but did so unequally, exempting some religious communities from its draconian measures. Once again, therefore, the state adopted a fundamentally unequal posture toward different groups of citizens, discriminating against some of them.
An arbitrary registration procedure
Yet further evidence that Hungary’s tiered classification system is discriminatory can be adduced from the legal procedure established by the law for conferring the status of established church. Even if the government’s expert on human rights, Tamás Lukács, were right that religious organizations do not have a subjective right to receive church status, the citizens belonging to those religious organizations certainly do have a subjective right to due process under the law. Thus any justification of Hungary’s tiered system must show, at the very least, that the citizens of all religious communities have an equal opportunity under equal circumstances to secure recognition as a church. Judged by the standards of equal treatment and due process, however, Hungary’s religion law falls egregiously short.
In many cases, the actual classification of specific religious communities into the categories does not conform clearly to the requirements of the law itself. Some religious communities on the list of established churches do not appear to meet the conditions for recognition, while other communities appearing to meet those conditions have been excluded. The list of established churches therefore appears arbitrary. To demonstrate this, I need only discuss a few of the numerous (and we should add parenthetically, burdensome) conditions for recognition.
According to the law, a religious organization applying for church status must demonstrate either (1) that it has been operating internationally for at least 100 years, or (2) that it has been operating in Hungary for 20 years and that its membership reaches 0.1% of the total population. Let us consider this second condition first, particularly the requirement that a religious community’s membership reach 0.1% of the population. According to the 2011 census, Hungary’s total population is just below 10 million inhabitants (9,937,628). Thus, a religious community with a membership reaching 0.1 percent of the population would have approximately 10,000 members. This number arguably contradicts OSCE/ODIHR guidelines against high membership requirements. Based on the most recent census data, only 6 of the 27 established churches in Hungary have 10,000 members or more. Thus, insofar as the current list was established according to the conditions enunciated in the law, the majority of those groups were recognized not on the basis of condition (2), but because they conform to condition (1).
Condition (1) requires a religious community to have been operating internationally for at least 100 years. The law stipulates further that a religious community must demonstrate international operation by meeting one of three, additional conditions. It must (a) provide “a certificate issued by churches that have church status in at least two countries and have the same confession;” or it must (b) provide “a certificate of membership in an association issued by churches, church associations that operate in at least two countries and have the same confession;” or it must (c) provide “a certificate issued by a world church that has member churches in at least two countries.”
Condition (b), which provides for membership in international associations, seems to be written with a view toward Protestant churches, which often belong to international ecumenical organizations. Most of those ecumenical organizations are, however, less than 100 years old. The World Methodist Council, for example, was formed in 1931, the Lutheran World Federation in 1947, the World Alliance of Reformed Churches in 1970. Membership in one of these ecumenical organizations, therefore, would not demonstrate 100 years of international operation. Currently in Hungary there exist two separate Methodist churches. The smaller one is legally recognized, the larger is not. One possible explanation for this might be that the smaller church belongs to the World Methodist Council; except the World Methodist Council is less than 100 years old. This Methodist church is also affiliated with the United Methodist Church based in America, but the United Methodist Church was established only in 1968. Meanwhile, the unrecognized Methodist church in Hungary, called the Hungarian Evangelical Fellowship, has recently demonstrated a membership of more than 10,000.
Condition (c) provides for member churches of a world church. The clearest example of this might be the Roman Catholic Church, although the various Orthodox churches recognized in Hungary would probably also qualify under this provision; so also would the Church of Jesus Christ of Latter Day Saints (the Mormons), which is recognized in Hungary. However, other groups which clearly meet this condition are excluded. The Armenian Apostolic Church, which has a presence in Hungary and which is one of the oldest Christian churches in the world, is not on the list of established churches. The Unification Church, present in Hungary, would also qualify under this condition. Admittedly, the Unification Church is not 100 years old, but as we have seen, that did not seem to matter in the case of the Methodist church.
Condition (a) provides for churches with the same confession existing in at least two countries. This condition seems quite similar to condition (c), but perhaps it was written with sister churches in mind, rather than churches with a single international organization and leadership. Perhaps the Seventh-Day Adventists, who are recognized, would fit under this condition, as would the United Methodists – if the United Methodist Church were 100 years old. But again, churches which appear to meet this condition have been denied recognition. For example, a Pentecostal church in Hungary (Isten Gyülekezete Egyesült Pünkösdi Egyház) affiliated with the United Pentecostal Church, International has so far been denied church status, even after producing a signed and notarized certificate from the American leadership of the church, as the law requires. The response of the relevant government minister, Zoltán Balog, has been to request that the United Pentecostal Church, International produce evidence that it is legally recognized in two countries.
On the other hand, several of Hungary’s established churches would seem to have trouble meeting any of the conditions just discussed. In calling attention to this, I do not mean to suggest these groups should not have been recognized, I merely wish to point out inconsistencies in the application of the law. One of the most perplexing instances of a recognized church is the Transylvanian Congregation (Erdélyi Gyülekezet). The Transylvanian Congregation is a group that broke away from Hungary’s Reformed Church in the 1990’s. It may be barely 20 years old, but it almost certainly does not have 10,000 members. Given its unique mission to ethnic Hungarians, the likelihood that the Transylvanian Congregation shares an identical confession with churches recognized in at least two countries also seems low. One is left to wonder, therefore, why this group is included among the established churches, especially when many other religious groups with a greater presence in Hungary have been excluded.
The explanation for these inconsistent applications of the law is to be found in one of the law’s provisions, according to which a church can only be recognized by a 2/3 majority vote of Parliament. Since nothing binds members of Parliament to respect the conditions for recognition laid down in the law, the list of recognized churches need not conform to those conditions. Indeed, according to Tamás Lukács, Parliament need not recognize a religious community as a church even when it meets all the conditions in the law, because recognition is a matter of political discretion rather than subjective right.
However, everyone has a right to due process. As the Venice Commission noted in its report on Hungary’s religion law, a provision that grants Parliament exclusive authority to bestow recognition on religious groups cannot be viewed as complying with the standards of due process of law. Nor can such a provision satisfy the right of effective remedy, which, as the OSCE/ODIHR guidelines remind us, is a right “rooted in general rule-of-law conceptions” and embodied “in a number of international norms.” Insofar as Parliament’s decision is both arbitrary and final, religious groups unfairly denied recognition have no avenue of legal appeal.
Serious concerns about due process and the right to effective remedy were at the core of a ruling by Hungary’s Constitutional Court that struck down significant parts of Act CCVI of 2011. The Court ruled that the recognition procedure carried out under the new law did not afford unrecognized groups due process and legal remedy, and, therefore, the Court restored the legal status of numerous deregistered communities. The response of the Hungarian government was to amend the constitution and the religion law so as explicitly to allow Parliament political discretion in determining which religious groups to recognize as churches. By explicitly granting Parliament a right of discretion, these amendments also give Parliament the constitutional authority to ignore the conditions for recognition laid down in the law. Nor did Parliament choose to change the list of established churches in light of the high court’s ruling.
Instead, the Hungarian government responded to concerns about legal remedy by introducing a passage into the religion law that allows religious communities to appeal their rejection by Parliament before the Constitutional Court. That is, a rejected religious community would ask the high court to review Parliament’s specific decision to deny it church status. However, since both the Basic Law and the law on religion allow Parliament to exercise political discretion in determining which religious groups to recognize as churches, it is hard to envision a scenario in which the Constitutional Court could ever overturn a decision by Parliament. If Parliament has a constitutional right to enact arbitrary decisions, the Court cannot strike down Parliament’s decision for being arbitrary. Rather than provide for legal remedy, the constitutional amendment has effectively removed it.
In seeking to rebut international criticisms of its religion law, the government of Hungary tries to describe its tiered classification of religious communities as a common European model, a system analogous to that in other democratic countries. However, the numerous problems with the law that I have outlined above call this analogy into question. Indeed, most of the problems with the Hungarian law originate in the way its classification system differs from those found elsewhere in Europe. In other European countries, tiered classification systems are the result of historical development, reflecting compromises achieved over time between national histories and a growing acknowledgment of the right of religious freedom. The defining characteristic of Hungary’s religion law, by contrast, is its effort to repeal historical developments by revoking rights previously held by Hungary’s citizens and reducing the scope of religious freedom. From the point of its inception, to the moment of its implementation, and through its continuing application, Act CCVI of 2011 has been discriminatory in ways that raise justifiable concerns not only about the state of religious freedom in Hungary, but also about the rule of law itself.
 “Állami kegy az egyházi statusz” Népszava online February 10, 2012 (http://www.nepszava.hu/articles/article.php?id=520174).
 See Guidelines for Review of Legislation Pertaining to Religion or Belief, OSCE/ODIHR, adopted by the Venice Commission, June 2004, page, 16.
 Ibid, page, 17.
 Act CVII of 2011, 14. § “The Parliament recognizes a religious organization if c) it has operated for at least ca) a hundred years internationally or cb) twenty years in an organized fashion as a religious community in Hungary and has a membership equalling at least 0.1 percent of the population of Hungary. „14. § A vallási tevékenységet végző szervezetet az Országgyűlés egyházként ismeri el, ha…c) legalább ca) százéves nemzetközi működéssel rendelkezik vagy cb) húsz éve szervezett formában, vallási közösségként működik Magyarországon és Magyarország lakosságának 0,1 százalékát elérő taglétszámmal rendelkezik”.
 Guidelines for Review of Legislation Pertaining to Religion or Belief, page, 17.
 Act CCVI of 2011, “14/A. § (1) A 14. § c) pont ca) alpontja szerinti nemzetközi működést a) legalább két országban egyházi státusszal rendelkező és azonos hitelveket valló egyházak által kiállított igazolás, b) legalább két országban működő és azonos hitelveket valló egyházak, tagegyházak szövetsége által a szövetségi tagságról kiállított igazolás, vagy c) legalább két országban működő részegyházakat összefogó világegyház által kiállított igazolás alapján kell megállapítani.”
 Opinion 664/2012 European Commission for Democracy Through Law (Venice Commission), paragraphs 76-77.
 Guidelines for Review of Legislation Pertaining to Religion or Belief, page 13.